Tuesday, February 06, 2007

Brief in Opposition and Reply Brief in Craig v. Ohio

You can read the state's brief in opposition to the petition for certiorari in Craig v. Ohio by clicking here, and my reply brief in support of the petition by clicking here. To see my prior post describing the case, and the petition, click here. I expect we'll know by the end of the month whether the Court will take the case.

9 comments:

Donald Burke said...

Professor Friedman,
Looks like things got a bit turned around--both links point to the state's brief in opposition.

Richard D. Friedman said...

Oops! Sure didn't mean to do that!! I've corrected the mistake, and the reply brief should now be available. Thanks for alerting me to this!!

mitchell e ignatoff said...

Prof. Friedman-

I am curious why did you not argue that the business record rule arose after the 6th Amend was ratified? Wigmore says so. In addition, it seems that the business record rule was invented for commerce, not for issues of liberty. I would really appreciate your insight.

Mitch Ignatoff, Esq.
mitchell@meignatoff.com

Richard D. Friedman said...

I don't want to say too much here about the issues raised by the pending petition in Craig, but:

1. I don't think that anything as broad as the current "business records" doctrine existed at the time of the Sixth Amendment, but the seeds of it -- the "shopbook" rule -- existed before.

2. Certainly the business records rule as it has existed until being stretched out of shape by some recent courts has not applied to statements like autopsy reports, and of course I agree that in noting that business records by their nature are not testimonial, the Crawford Court did not mean to refer to statements that are prepared in anticipation of litigation.

miotchell e ignatoff said...

Prof. Friedman-

Thank you for your reply.

I notice that in DUI cases the courts are saying that because at the time they calibrate the breath testing instrument there is no identified accused, these certifcates are not testimonial. Seems to me this is just the spider setting out it's web. The language of the Clause does not say there has to be an identified accused. Is there an historical basis for this?

Mitch Ignatoff, Esq.
732-356-2212
mitchell@meignatoff.com

Richard D. Friedman said...

I don't believe there's any historical basis, or any other basis, for it. Suppose there is a street crime and the victim goes to the police station and describes the commission of the crime in an affidavit but is unable to identify the perpetrator. Later, the perpetrator is identified, perhaps through trace evidence. Of course the affidavit must be testimonial!

I think a much closer question is presented by a calibration certificate that is completed before the commission of the crime being charged. I still think that's testimonial, because it is written in contemplation of evidentiary use. But it's not outrageous to say that -- because it's written only in anticipation that somewhere along the line someone will commit a crime for which this will be useful -- it's not testimonial. Still wrong in my view, but not outrageous.

mitchell e ignatoff said...

Prof. Friedman;

I cited to the language of the Confrontation Clause itself. It does not have a time requirement. Also, as testimonial is defined, it is simply a statement made to prove a fact in court. In my opinion too a statement can be made to prove a fact in court before it is needed.

Aggain, thanks.

Mitch Ignatoff, Esq.
732-356-2212

Anonymous said...

Prof,
This is out of place in this posting but wanted to call your attention to a 2/23 decision from the Wisconsin Supreme Court in which they adopted a very signifigant expansion of the forfeiture doctrine, creating in effect a homicide exception to testimonial statements. One justice dissented claiming what the majority is adopting is unconstitutional.

Anonymous said...

Pennsylvania is proposing an amendment to our evidence rules to allow prior statement to come in if the witness testifies. Even if the witness does not remember making the statement. Does Crawford require more than just the witness sitting on the stand?


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