Monday, February 26, 2007

Certiorari denied in Craig

Today the Supreme Court denied the petition for certiorari I filed in Craig v. Ohio. Obviously, I am disappointed. I think the issues that the petition raised are important ones that the Court must ultimately resolve, and I hope the time will come sooner rather than later. Most narrowly, the case posed the question whether an autopsy report in a murder case is testimonial; more broadly, the question is whether a state can immunize from Confrontation Clause review a statement routinely made by government officials in anticipation of litigation by characterizing it as a business or public record. Last week, the Court turned away another autopsy case, seeking review of the Second Circuit's decision -- one I thought was atrocious -- in United States v. Feliz. And several weeks ago, the Court rejected the petition in Campbell and Pinks v. North Dakota, which could have let it resolve the broader question and which more directly posed the question of whether the Confrontation Clause can be satisfied by giving the accused the oportunity to subpoena the witness. It may be that the Court saw problems in each of these cases making it a poor vehicle for review. It may be that the Court wants the lower courts to decide more "business records" cases before addressing the area. It may be that the Court wants to let more time go by before returning to the whole Crawford area altogether. And perhaps there are other explanations as well; as a rule, the Court gives no explanation for cert denials. These denials should not be read as an endorsement of the decisions of the lower courts, which I continue to believe are plainly wrong. There are lots of Crawford-related issues that only the Supreme Court can resolve, and eventually it will do so.


wm. tyroler said...

O/T, but note this recent Wis SCt decision, State v. Jensen, 2007 WI 26:

"we explicitly adopt this doctrine whereby a defendant is deemed to have lost the right to object on confrontation grounds to the admissibility of out-of-court statements of a declarant whose unavailability the defendant has caused. As such, the case must be remanded to the circuit court for a determination of whether, by a preponderance of the evidence, Jensen caused Julie's unavailability, thereby forfeiting his right to confrontation."

The dissent, I think, gets it right, that the result "creates a homicide exception to the constitutional guarantee of confrontation." The point is that the State ought to be required to "show[] that the defendant's purpose was to procure the absence of the witness to keep him or her from testifying at trial," dissent, ¶94.

Randall Hodgkinson said...

I might add that a couple of weeks ago, we had a cert petition (Blanchette v. Kansas, No. 06-8499) denied on whether Maryland v. Craig was or should be overuled by Crawford. Lots of Crawford-type issues, but not very many cases taken up.

Steven Yermish said...

I cannot believe that the Court needs more cases in the lower courts to flesh out the business records exception issue. As your petition noted, there is already very substantial case law out there on both sides. I also thought the Craig case was a good vehicle to address the issue. I think they may be a little weary of Crawford cases at this point, and might want to wait another term to address it again.
In any event, thanks for an excellent brief on the issue. A trial judge in Miami is about to see substantial portions of it in a motion in limine I am filing today.

Richard Klibaner said...

I have just filed a petition for cert. on the issue of whether the Massachusetts' statute allowing introduction of a certificate from a State Police chemist as prima facie evidence of the nature and quantity of a drug violates Crawford. The issue is pretty straighforward, since the Mass. statute has no provisions for notice and demand which might create a waiver question. Unfortunately, there was no objection at trial (though the Mass. appellate court ruled on the merits of the claim to determine that there was no "substantial risk of a miscarriage of justice," our rather liberal version of "plain error." (I would be glad to send a copy of the petition to anyone interested.)

Richard Klibaner

Anonymous said...

I am a Public Defender in Missouri and I have a case with the issue of admitting autopsy reports post-Crawford without having the ME there to testify. I have not had a lot of luck in finding helpful cases in MO - certainly none directly on point. There is one recent case where the MO Supreme Court held that a laboratory report prepared solely for prosecution to prove an element of the crime charged is testimonial for purposes of the Confrontation Clause. The cite for this case is: State v. March, 216 SW2nd 663 (Mo 2007).

I was doing some research on the issue and ran across your blog. I am very interested to know the state of this issue across the country. Please email me if you have time at

Anonymous said...

Sorry wrong cite above:
216 SW3rd 663