Sunday, November 12, 2006

Pending Crawford Issues

I’ve been asked to lay out some significant unresolved issues related to Crawford. Here is a list. It can’t hope to be exhaustive, of course.

(1) What is the basic standard for determining whether a statement is testimonial?

(2) What constitutes an “ongoing emergency” under Davis?

(3) To what extent should statements by government agents, including autopsy and laboratory reports, be considered testimonial?

(4) To what extent may statements other than to law enforcement personnel – to other government agents and to private persons – be characterized as testimonial?

(5) To what extent may the state attempt to constrain exercises of the confrontation right intended only to impose costs on the prosecution?

(6) To what extent, if any, may the state impose on the accused the burden of securing an opportunity for confrontation?

(7) What standards govern the adequacy of a pretrial opportunity for cross-examination?

(8) If the accused has not been identified, or has been identified and not arrested, may the prosecution preserve the testimony of a witness?

(9) To what extent, if any, should the age, maturity, and mental condition of a declarant be considered in determining whether she can be a witness for purposes of the Confrontation Clause and whether particular statements by her are testimonial?

(10) To what extent does the Confrontation Clause apply to the sentencing phase of a capital case, and to what extent is there a right – based perhaps in the Due Process Clause – to confront declarants whose statements are testimonial in nature and are introduced against the accused in criminal proceedings other than the trial?

(11) What standards and procedures should govern forfeiture of confrontation rights? Among the many important questions on this topic are the following:

(a) Must the conduct that allegedly rendered the witness unavailable to testify subject to confrontation have been motivated in significant part by the desire to achieve that result

(b) May the conduct that allegedly rendered the witness unavailable to testify subject to confrontation have been the same conduct with which the accused is charged?

(c) May the challenged statement itself be used in demonstrating forfeiture?

(d) What is the standard of persuasion in demonstrating that the accused forfeited the confrontation right?

(e) To what extent is the prosecution foreclosed from claiming forfeiture because it failed to mitigate the problem? In particular,

(i) If the witness is dead, when is the prosecution foreclosed from claiming forfeiture if it did not arrange for a deposition?

(ii) If the prosecution is contending that the witness is intimidated, what procedures must the government go through to assure that as much of the confrontation right as possible has been preserved? For example, to what extent must it exert coercion against the witness, and must it attempt to secure cross-examination without the witness’s testimony?

8 comments:

Rocky Sharwell said...

The Lab report issue is one of special concern to me--I orally argued the issue at the Florida Supreme Court a few months ago--decision pending. As far as I know the issue is pending in the Supreme Courts of Colorado and Missouri also.

Anonymous said...

I know that Jeff Fisher has a cert petition pending that raises the lab report issue. The case is Pinks v. N. Dakota and Fisher's brief is on the SCOTUSblog.

Anonymous said...

Regarding item #4 and #10 on the list, I argued before Pennsylvnia's intermediate appellate court this week regarding the statements of a 4 year old child to a child protective services worker 7 days later and then to a forensic pyscologist 19 days later. Both statements were Dad did it with accompanying explanation. 4 year old was in the playpen with 7 month old brother when Dad reached in, yanked up the baby's arm and twisted. Spiral fracture of right humerus bone. Both of these 3rd party witnesses testified at trial and relayed what the 4 year old told them. Case name - Comw. v. Allshouse 623 WDA 2006 (Pa. Superior Court). David B. Chontos

Dean Clark said...

I start a murder trial on November 27, 2006 in Georgia. Major issue is Crawford's affect on so called adoptive or tacit admissions. In my case co-defendant initially cooperated with police and made telephone call to my client that was recorded by police. Parts of her statements on the conversation were scripted by the police. Subsequently at the preliminary hearing she took the fifth and asked for representation. She was indicted along with my client and another. The court has refused to sever the trials. Both I and her attorney have raised objection respectively to the admission of the phone recordings because of lack of confrontation. I think clearly the scripted statements were testimonial. The prosecution argued that they were adoptive admissions under Georgia evidence code which is similar to federal rule. As adoptive admissions the state argued that they were not subject to confrontation. There is a dearth of post-Crawford case law clearly addressing this issue. The best analysis which does not really help me, but I thought was well reasoned was U.S. v. Lafferty, 387 F.Supp.2d 500 (W.D.Pa. 2005). That court ruled that if the jury found beyond a reasonable doubt that the Defendant adopted the statements then no right of confrontation existed since they would be considered the statement of the defendant. This seems a little off since prior to Crawford most courts had analyzed tacit admissions under Ohio v. Roberts which of course would suggest that there was a confrontation right unless the Roberts factors were met of reliability and the exception being a firmly rooted exception which according to the comments of the FRE it was a firmly rooted exception. Anyway, I think this is unresolved issue which I hope my client does not have to be the one to argue on appeal.

Dean Clark

Mike said...

I am a lay person. Father of a victim of what I guess I will have to term "court abuse". Psycholocigal damage of a child victim should be avoided at whatever the cost. My child (the victim) was confronted during a courtroom hearing. The next two days my child would not, could not get out of bed, did not want to speak, and off and on lay curled into the fetal position. I was "outraged during the proceedings", and expressed myself. There seemed little concern.

Compounding the delimma and serving to finalize the crushing of my childs character was this: On the third day, following the proceeding, a news article directly leading to the identity of my child was on the front page of the regional newspaper. Being in a small town (pop 800) our phone began to ring off of the hook. Enough information was given to directly identify.. Buzz went throughout the schools. The scant/partial facts revealed in the article were misinterpreted, and my child now feels ostercized. I cannot describe the damage. Cannot think of a better way to destroy a child and have contact the Atty. Generals office.. Frankly, with what I have seen, I do not expect a reply..

We are struggling for sanity in our entire household. The community is in a state of confusion and being affected also. I am considering suing the state. Frankly, feel there is a valid case.. This treatment of children MUST stop!! Period.

As of today (and my anger is fresh), I will certainly NEVER suggest that ANY child victim file a police report to report a crime for the sake of "it's the right thing to do".

On the contrary. I WILL suggest, and strongly, do NOT enter our court systems. Do NOT grace their doorways as there is no protection for the child and i will demonstrate the why and how of it.

I am going to try to find some help for my child at the Mayo Clinc or SOMEWHERE.. A good doctor's name would be appreciated.

I am speechless.. unable to describe the shameful conduct served upon a child and the apparent "well, that's just the way it is" attitude.. Is it little wonder that only 2 of 10 cases of abuse are reported.. In my opinion ,, NO child victim should EVER go to court.. it seems more damaging than the original crime against them.

If I do not hear from our Atty. General and there is no action to see that this sort of behavior is immediately stopped; I will then contact every rape and safe home in the state with the story of "do NOT" go to our courts and here is why..

Hope you folks can sort this out.. but not in front of children..

Bonny said...

I am about to file a cert on issue #4: whether a statement made to a lay person can be testimonial. Very briefly my facts are: Landlord hears gunshots in an apartment, calls the police and then goes to apartment to investigate. Tenent, who is a drug dealer with substantial drugs in his apartment, tells LL that another person in the apartment - my client,who is present & sitting there - was trying to rob him. There were no guns or drugs in view when the LL entered. Tenent did not testify as he was charged separately with drug charges.
My argument is that the tenent knew that it was likely that anything he said to LL would be reported to police and thus is testimonial.
Anyone know of any cases that may be of any help to me, or have any helpful advice whatsoever?

Bonny Gilbert

geneva said...

PLEASE HELP! does anyone know the Georgia code and/or statue on a "lay person"? PLEEEEEAAASEEE HELP!

Thank You!

Richard D. Friedman said...

Sorry -- I don't know to what you're referring.