Andy Fine has called to my attention two recent cases, one quite good and the other not. I’ll discuss the bad one in another posting. The good one is United States v. Mills,, 2006 WL 2381329 (C.D.Cal., Aug 17, 2006), which holds that Crawford applies throughout the sentencing portion of a capital case. At least one other court had held that Crawford applies at the so-called “eligibility” phase – which establishes whether the accused is eligible for the death penalty – but not at the “selection” phase – which determines whether the death sentence actually will be imposed. The Mills court explicitly relied upon, and praised, John Douglass’s article, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967 (2005).
As I have suggested before, it appears to me the result reached by Mills has substantial appeal – if not under the Confrontation Clause then under the Due Process Clause. Suppose a person gives testimony in court during the selection phase. The court should not be able to excuse that witness from cross-examination simply because the court believes the testimony to be true. And, considering just a strong case, it seems clear the result should remain the same if the person makes a statement out of court with the intention that it be used at trial. Otherwise, the person could effectively testify without coming to trial and without taking an oath or being subject to cross-examination. This argument doesn’t distinguish capital sentencing from other sentencing proceedings; I don’t have any settled opinion as to whether the arguments treating death penalty proceedings as constitutionally different have merit.
One aspect of Mills is perplexing. The court says in a footnote, “As to non-testimonial statements, the post-Crawford standard remains unclear.” Aw, come on. The judge is aware of Davis – he had just cited it shortly before – but for that proposition he only cites pre-Davis cases. (Some of the court’s rulings as to whether particular statements are testimonial may also be arguable, but I won’t analyze those.) Really, it should be clear by now: If a statement is not testimonial, the Confrontation Clause doesn’t apply.
There is, at the moment, a direct link to Douglass's article at
ReplyDeletehttp://www.columbialawreview.org/pdf/Douglass-Web.pdf
Hi, I am researching Crawford V Washington and i have a question, How would the use of internet chat logs (AIM chat logs) fall into play with CvW? I am told they would be considered heresay. PLease help.
ReplyDeleteThey may be considered testimonial hearsay, depending on the content and context of the statements. I don't think the analysis would be any different than a recorded phone call, like the one in Davis. The statements are certainly hearsay if presented without the declarant taking the stand, but I assume you're asking are they testimonial. Then you just have to go through the analysis, which is not incredibly clear after Davis, but probably "Would a reasonable person in the declarant's shoes anticipate the statement's use at trial?" If so, it's testimonial and needs to be confronted unless the crime was ongoing and falls into the emergency exception carved out in Davis & Hammon. If not, it's not testimonial and it will be subjected to whatever hearsay rules apply in the jurisdiction. If it meets an exception to the rules against hearsay and is not testimonial it should come in.
ReplyDeleteWIth Regards to C v W, does cvw in regards to NJ law, affect how a grand jury would acquire indictments.. For example, taped and transcribed statements presented as evidence by the accused and the alleged victom. If i am reading CVW correctly, the accused should have been questioned by the grand jury.
ReplyDeletein response to my previous entry on chat logs and crawford, here is more information...
ReplyDeleteThe chat logs were printed from a seized computer. The chat logs contain a line that states that a particular file was transmitted to another. The logs are onesided, meaning that there was not a trail that woud allow law enforcment to locate where the file was sent. it is just a line that exists in within the body of a chat log.
If a person is denied a fair trial, and then the court allows a so-called victim (actually a perptrator) to submit a Victim's IMpact Statement, all libelous and prejudicial, to be submitted with a PSI, to be used in the court's sentencing disposition, did the court deny the right to confrontation, since a person cannot cross-examine a victim's impact statement?
ReplyDeleteIn addition to this posting ,see the ealrier one titled "Crawford and Sentencing," which is available at
ReplyDeletehttp://confrontationright.blogspot.com/ 2005/04/crawford-and-sentencing.html. I suspect that, for better or worse, the prosecution will win most of these skirmishes.