I previously posted a brief, preliminary summary, prepared by Andrew Fine, of the Supreme Court's decisions after Davis, denying certiorari in some Crawford-related cases involving fresh accusations and GVRing (granting, vacating and reversing for reconsideration in light of Davis) in others. Here is a more extensive analysis, prepared by the Public Defender Service for the District of Columbia under the supervision of Tim O'Toole, and presented here with their permission and my thanks. How the GVRed cases will eventually be resolved is not yet certain, of course, but I think it is clear that the Court's decisions reflect an unwillingness to assume that a fresh accusation was probably made during an "ongoing emergency".
3 comments:
This is an interesting memorandum but I think it reads too much into the GVR's. It seems that the standard for granting a GVR turns not on whether the justices believe the lower court got it wrong, but rather on whether there is a "reasonable probability that the lower court relied on the erroneous standard." Lawrence V. Chapter, 516 U.S. 163, 171 (1996). By this standard, all the listed cases where properly GVR'd because they applied an erroneous standard but little can be said about how the Court will ultimately rule if the case returns.
I also have two questions for the author, or for Professor Friedman.
First, while I tend to agree that an emergency must be ongoing and actual to be non-testimonial under Davis, I question the interpretation of Warsame. If a man pulls a gun on a person and is lurking in the neighborhood, and the person flees to a police station, why isn't it objectively reasonable to believe that the person is in actual rather than theoretical danger?
Second, why is a statement testimonial if a person is reporting another person's peril but non-testimonial if the declarant is personally in peril? (memo p.2) It would seem that a person seeking help for another is no more "testifying" than is the person seeking help for herself.
In response to the first question raised by the anonymous commentator (and I do wish participants would identify themselves): It seems to me that once a declarant is in the safety of the police station there is no emergency at that moment. The situation is similar to Hammon. The United States argued in its brief that there was an emergency because the police didn't know what might happen if they left. But plainly that was not enough; the Court emphasized the presence of the police and the absence of any imminent danger.
The second question raises a very interesting point. One might recast the point and turn it around by saying that a person who seeks help for herself but is acutely aware that she is providing evidence for the conviction of her alleged assailant is testifying no less than is the person who seeks help for a third person being assaulted but is also acutely aware that she is providing evidence for conviction of that assailant. Having said that, I think a non-victim may be more likely than the person actually being beaten to focus on the possible evidentiary use of the statement; being an observer provides some detachment.
While Davis/Hammon ostensibly is a victory for the vitality of the confrontation clause, a review of most of the state court decisions in its wake appear that it has had the opposite effect. Davis seems to have opened the door for admitting all manner of "excited utterances" elicited by police arriving on the report of a disturbance notwithstanding the fact that the statements relate to "what happened" not "what is happening"
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