Wednesday, February 28, 2007
Crawford not retroactive
I'm on vacation but Ive just found out that the Supreme Court held today in the Whorton case that Crawford isn't retroactive. No surprise -- the consequences would have been enormous, more than the Court probably wanted to deal with. I hope to post something mroe substantive about the deciswion within the next few days.
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3 comments:
It seems likely, then, that the Court will deny cert in New Mexico v. Forbes, No. 05-644 (from NM Sup. Ct. holding that it was retroactive), Lave v. Quarterman, No. 05-1152 (from 5th Cir. holding that it was not retroactive), and Drach v. Bruce, No. 06-789 (from KS Sup. Ct. holding that it was not retroactive).
Prof. Friedman, your thoughts, please, on the following quote from Bockting:
"... Crawford's elimination of Confrontation Clause protection against the admission of UNRELIABLE out-of-court nontestimonial statements ... Under Crawford ... the Confrontation Clause has no application to [nontestimonial] statements and therefore PERMITS THEIR ADMISSION EVEN IF THEY LACK INDICIA OF RELIABILITY ... It is thus unclear whether Crawford ... decreased or increased the number of UNRELIABLE out-of-court statements THAT MAY BE ADMITTED IN CRIMINAL TRIALS." (Capitalization added.)
(from Andrew Fine)
Though some courts still don't recognize this, Davis explicitly held the Confrontation Clause doesn't govern nontestimonial statements. It's conceivable that at some point the court might recognize some due process threshold of reliability that must be satisfied, but I'm very dubious that the court as presently constituted would be willing to do that.
Andrew Fine
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