Monday, June 19, 2006
Hammon and Davis decided
The Supreme Court decided Hammon v. Indiana and Davis v. Washington today, in a consolidated opinion written for the Court by Justice Scalia; Justice Thomas wrote a separate opinion. Hammon won 8-1 and Davis lost 9-0. You may see the syllabus and the opinions by clicking here. I'm obviosuly delighted by the victory in Hammon (the case I argued) and very disappointed by the result in Davis. Commentary on the decisions by several people, including me, may be found at www.scotusblog.com/ . For today, I will probably not comment further here or there (we've just started a vacation, I got very little sleep last night, and I am going to take a nap!), but your comments are more than welcome, and I'll join in later.
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4 comments:
Prof. Friedman, you mentioned on SCOTUSblog that you believe the court errs by adopting a purpose-based test for distinguishing testimonial from non-testimonial evidence. In Fisher's post, he focuses more on the temporal aspects that Scalia mentions (i.e., Davis was described events "as they were happening). Clearly Scalia sets forth several parameters for determining what is testimonial -- any prediction on what test will emerge as preeminent going forward, or do you think courts will apply almost a "totality of the circumstances" test?
It seems to me that the temporal test is really a subtest or component of the primary purpose test that Scalia advances. If so, one would look first to see if the crime is completed or ongoing, and if completed, with no continuing safety issue for a "victim caller", further statements are testimonial. If ongoing, then one continues to look at other aspects of the situation as far as evidence gathering is concerned to assist the police in "resolving" the situation, i.e., continuing danger to caller, need to identify risk factors for responding police.
However, the real question is whose primary purpose? If the caller says they are fine, but the police perceive there is a real continuing emergency, are the caller's statements testimonial? Scalia refers to the primary purpose of interrogation, but if that is the case, then what is the test where the statement is not elicited by interrogation?
And what about the 911 calls by third parties not involved in the actual events as they are or may be occurring?
Clearly each situation must be evaluated on its own merits, and a totality test may be ultimately implicated.
I have an interesting question and situation regarding the application of Crawford to post judgment proceedings, specifically under Florida Law of Criminal Procedure 3.850. The Florida Supreme Court has held that Crawford may not be applied retroactively. Chandler v. Crosby, 916 So.2d 728 (Fla. 2005). But in the case of a motion for post judgment relief on the basis of the discovery of newly discovered exculpatory evidence, the court should grant a new trial if the newly discovered evidence is of sufficient weight "that on retrial it would probably produce an acquittal." Smith v. State, 31 Fla L. Weekly S 159 (Fla. March 9, 2006).
I have a situation in which the conviction was obtained largely on the basis of hearsay statements admitted under Florida's child sexual abuse hearsay exception codified at section 90.803(23), Florida Statutes, which two Florida courts have acknowledged violate the Confrontation Clause as construed in Crawford. On retrial it is clear that the hearsay statements admitted under the section 90.803(23) exception to the hearsay rule, would be excluded under Crawford.
Common sense tells me that because the Florida Supreme Court held that Crawford cannot be applied retroactively, and therefore would not support relief by way of habeas corpus challenging the admission of the hearsay, the court reviewing the post conviction relief motion must consider the hearsay admitted at trial even when it is clear that at any retrial of the case the hearsay would be excluded.
Logically, because the court must determine the post conviction relief motion on the basis of whether the new evidence would probably produce an acquittal on retrial, at which Crawford would apply, then the court must determine the motion without relying on the evidence which would be excluded under Crawford.
If you have any thoughts on the matter, I would love to see them discussed although I realize you may not have the time. The matter seems to be a case of first impression in Florida as far as I can determine after reading many, many, new evidence cases.
Sincerely,
Will J. Richardson
Tallahassee, Florida
Something I haven't seen any commentary on, so I was wondering if anyone is reading the case the same way as I am, to wit. After Crawford, most (if not all) courts have assumed that the Ohio v. Roberts test continues to govern the admissibiity under the Confrontation Clause of nontestimonial hearsay. As I read Davis's description of the Crawford holding, however, it seems the Court has made clear that where nontestimonial hearsay is at issue, the Clause is simply not implicated at all, and thus Roberts is a dead letter. See the first paragraph of Part II of the Court's opinion (page 6 of the slip op.). Anyone have any thoughts?
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