Tuesday, April 04, 2006

Transcripts of Arguments in Davis and Hammon

The transcripts of the arguments in Davis and Hammon are now available. You can get the Davis transcript by clicking here, and the Hammon transcript by clicking here. I'm sure every stammer of mine reported in the transcript is accurate, but there are two words reported inaccurately in the Hammon transcript that I will note here, for whatever it might be worth. On p. 3, line 12, in my very first sentence, it has me using hte word "similar" when I said "simple". And on p. 61, line 18, right in the middle of my peroration it has "abated" when I said "evaded".


Paulo Dá Mesquita said...

Mr. Friedman,
Thank you very much for your blawg, specially for the very important information and arguments that you share.
Paulo Dá Mesquita (Portugal)

Anonymous said...

(from Andrew Fine)

Transcripts can often create the impression that a speaker is hesitant or awkward-sounding, even when a live observer would attest to the fluency of his presentation.
That is certainly the case here. In person, Prof. Friedman's argument was eloquent and persuasive. Some of the the "stammering" is attributable to having to respond to compound and confusing questions (see, for instance, Justice Breyer's multiple contradictory variations on his admittedly "bad hypothetical" at pp. 4-6). Other seeming hesitations that appear on the printed page simply weren't noticeable in person. Of much greater importance is the justices' deferential manner toward him throughout, in recognition of his stature in the field (see comment of Justice Breyer at 19, regarding the present-sense-impression exception to the hearsay rule, "you're an expert in this"), and the confidence he projected in the validity of his position.

Andrew Fine

Paul Vinegrad said...

No doubt about it, Prof. Friedman did a masterful job, as did the Solicitor General.

I think the transcripts reveal that a majority of the justices are concerned about the "slippery slope" effect of adopting (1) Prof. Friedman's approach that focuses on the content of the statement and the declarant's knowledge that they are speaking to a law enforcement officer, or (2) the government's approach that focuses on the circumstances surrounding the production of the statement, i.e., whether the statement is a response to question that is reasonably related to "immediate safety"/emergency concerns.

Prof. Friedman's approach perhaps provides a "brighter" line that would be appealing to Justices Scalia and Thomas. However, I believe the majority of the justices are not as concerned with this type of line-drawing. It appears from the transcripts that a more practical, 21st Century, balancing of interests approach will be weighing heavily in the minds of the majority of the justices.

I suspect that the Court's majority will not make any broadly worded pronouncements concerning the meaning the the term "testimonial." I don't think Hammon and Davis will provide the "comprehensive" definition that was absent from Crawford. Rather, I believe the Court will tread very carefully (because of the "slippery slope" effect), and will try to formulate a very narrow holding that is closely intertwined with the particular facts at hand.