Thursday, March 29, 2007

Jessica Smith's "Emerging Issues": Links Available

Jessica Smith, a member of the faculty at the School of Government of the University of North Carolina at Chapel Hill, has given me permission to post on the blog links to her monograph, Crawford v. Wsahington: Confrontation One Year Later (2005), and to a supplement about to be published, Crawford v. Washington: Emerging Issues in Confrontation Litigation. These are intended primarily to be practical guides for North Carolina judges, but I think they will be very valuable resources for anybody dealing with Crawford issues. Posting this link does not mean that I vouch for any statement made in these documents, of course.

Saturday, March 24, 2007

"A Sixth Sense About Criminal Trials"

The ABA Journal E-Report has a nice write-up on Jeff Fisher, especially emphasizing Crawford and related issues, and discussing how the textually-based arguments that Jeff has made in Crawford and other cases have appealed both to Scalia and to the Court's liberals. You can get to the article by clicking here. There is one, uh, slight factual error in reporting, which I will leave to readers to find. It won't actually be all that hard.

Wednesday, March 21, 2007

Deepening Conflict on Lab Reports

Yesterday, in State v. March, 2007 WL 828156, the Missouri Supreme Court joined other jurisdictions in holding that a lab report prepared for use in prosecution is testimonial. I believe this result is clearly correct, and appropriately the court did not appear to endure much angst in reaching it. The decision sharpens the conflict among the states. The Supreme Court will have to resolve this matter, and in my view the sooner the better.

A Challenge to Maryland v. Craig

Lawyers from Baker Botts in Washington, D.C., have filed a well-crafted petition for certiorari asking the Supreme Court to take another look at Maryland v. Craig, 497 U.S. 836 (1990), which allows child witnesses in certain circumstances to testify against an accused outside his presence by electronic means. The petition presents a conflict among states in interpreting Craig – some states treat potential trauma to the child as sufficient in itself to justify such a procedure; others require that the trauma threaten to impair the child’s ability to testify. More broadly, the petition asks the Court to overrule Craig.

In arguing for adoption of the testimonial approach in Crawford, Jeff Fisher as counsel for Crawford and I as a supporting amicus emphasized that to do so would not require the Court to rethink Craig; the issues were orthogonal. Similarly, in an amicus brief written a few years earlier on behalf of the ACLU in Lilly v. Virginia, 527 U.S. 116 (1999), Margaret Berger and I wrote, referring in part to Craig, “Our focus here is on when confrontation is necessary, not on what is required for confrontation.” That having been said, I think that the majority opinion in Crawford bears much more affinity to the dissent written on behalf of four justices in Craig than it does to the majority opinion in Craig. This cannot be altogether surprising: Justice Scalia wrote the majority opinion in Crawford and the dissent in Craig, and Justice O’Connor, the author of the majority opinion in Craig, was one of the two justices who did not join the majority opinion in Crawford. Not only does Craig rely heavily on Ohio v. Roberts, 448U.S. 56 (1980), which is now discarded, but the Craig majority opinion reflects a balancing approach to the confrontation right, reflective both of the Roberts era and of Justice O’Connor, while Crawford reflects a more categorical approach favored by its author.

There can be little doubt that Justice Scalia, whose Craig dissent was bitter and pungent, would like to see that decision overruled. Would he now have the votes to do so? Will the Court decide that this is the time to consider the issue? We’ll know before long.

Tuesday, March 06, 2007

Confrontation Milestone?

I'm still working on my posting on Whorton v. Bockting. But meanwhile, Roger Kirst of the University of Nebraska College of Law, who follows confrontation developments very closely, has sent this message, under the title Confrontation Milestone?, to the evidence professors' e-mail list, and has given me permission to post it here.

For those who follow the details of confrontation doctrine in the Supreme Court there was an interesting denial of certiorari yesterday.

The high-water mark for the Supreme Court's reliability test as a substitute for actual confrontation was New Mexico v. Earnest, 477 U.S. 648 (1986). That was a GVR in which then-Justice Rehnquist added a concurring opinion joined by three others that asserted that Lee v. Illinois had adopted the reliability theory. This was also the last confrontation case the Court decided before Justice Scalia joined the Court. On remand the New Mexico Supreme Court retreated from its earlier conclusion that it was a violation of the right of confrontation to convict on the basis of the confession of an alleged accomplice the defendant could not cross-examine; they declared the confession "reliable" and affirmed the conviction.

After an unsuccessful further petition for certiorari and an unsuccessful postconviction challenge in federal court, Earnest did nothing until Crawford was decided. At that point Earnest filed a postconviction challenge in state court (represented by Tom Sullivan, now at Arkansas-Little Rock). Eventually the state trial court ordered a new trial and the New Mexico Supreme Court affirmed in an opinion that said basically "we were right the first time and Crawford now shows the Supreme Court was in error from 1986-2004 with its reliability test." [119 P. 3d 144 (N.M. 2005)] This time the State filed the petition for certiorari, arguing that Crawford was not retroactive. [New Mexico v. Forbes, No. 05-644]

The Supreme Court was holding No. 05-644 while it heard Whorton v. Bockting. During the wait the State tried to get an untainted conviction, but the alleged accomplice would not testify.

The Court's holding last week that Crawford is not retroactive might seem to suggest at least a GVR in No. 05-644, but that did not happen. Nothing more than a denial of certiorari, meaning the case is now over.

The reliability test was only part of Roberts, so we do not need to revive the debate about when Roberts died, but the decision yesterday is a reminder of how much confrontation doctrine keeps changing.

And Phil Pucillo, of Ave Maria School of Law, now but regrettably not for long of Ann Arbor, had this to say in response (and has also given me permission to post it here):

I just glanced at the New Mexico Supreme Court's opinion. What's fascinating is that the court did not claim to be applying Crawford retroactively. Instead, it emphasized that Crawford did not even announce a new rule, a proposition that the U.S. Supreme Court squarely rejected in Bockting.

It's almost as if the U.S. Supreme Court let this one go because explaining to Mr. Earnest why he won't get a new trial after all would be too embarrassing: "Well, sir, what happened was that the New Mexico Supreme Court was absolutely correct back in 1985 when it reversed your conviction and ordered a new trial for you. But you never got that new trial because, at that time, we thought that the New Mexico Supreme Court was wrong. Well, it turns out that we were wrong, but it took us another 20 years or so to figure it out. But see, the problem now is that you can't receive the benefit of our recent change of heart, because your direct appeal concluded a long time ago. So even though the New Mexico Supreme Court's 1985 decision to grant you a new trial was right on, you're pretty much stuck with our incorrect decision saying that you can't have a new trial. Sorry aboutthat!"

Monday, March 05, 2007

A Flurry of Forfeiture Decisions

There have been three significant decisions on forfeiture within the last few weeks: U.S. v. Martinez, 2007 WL 489217 (D.C.Cir. Feb 16, 2007); State v. Jensen, 2007 WL 543053, 2007 WI 26, Wis., February 23, 2007 (No. 2004AP2481-CR.), and, just today, People v. Giles (Ca. Mar. 5, 2007). I hope to post comments on all three (and also on Whorton) within a few days.