Monday, June 14, 2010

Cert denied in Pendergrass (and reply brief)

As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

I never posted Pendergrass's reply brief in support of certiorari, but for completeness will do it now; you can see it by clicking here. Personally, I think the issue is well enough joined that the Court could have taken this case if it were disposed to resolve the matter now. It may be that both sides from Melendez-Diaz are a little wary given the addition of yet another new Justice.


paul v said...

No reason for the Court to decide the Pendergrass issue.

I (humbly) predict that the Court will use Bryant to redefine the test for determining who is a "witness," for CC purposes.

And I predict that the new test will be consistent with the formulation set forth by the dissenting justices in Melendez-Diaz.

Under this new test, far fewer out-of-court declarants will be CC "witnesses," than under the Crawford formulation.

If I was writing a brief in Bryant, I would certainly be addressing this possible scenario.

Anonymous said...

Indiana's BIO was right on in Pendergrass. It is too soon for SCOTUS to tackle the issue(s) of technical reviewer and/or expert bases testimony.

Richard D. Friedman said...

Why is it too soon? And why would there be no need to resolve this issue?

Anonymous said...

An issue that Indiana raised in its BIO is that the California Supreme Court is presently reviewing a handful of appeals addressing similar issues (e.g., People v. Dungo). In light of California’s “fiscal crisis,” does anyone have an idea when these cases will be resolved?

paul v said...

The Cal Supremes may have been waiting to see if the Court granted cert. in Pendergrass.

They may also be waiting to see if, as I posted above, the Court uses Bryant to modify Crawford's (still relatively new) CC "witness" formulation.

Previously, the Cal Supreme's sat on People v. Cage for a long time, waiting for the Court's opinion in Davis.

They are a moderately conservative court. And not particularly interested in forging a path without some guidance from the Court.

Anonymous said...

The Illinois supreme court recently held that an expert's testimony regarding a DNA profile derived by a third-party lab from semen recovered from a rape victim did not constitute hearsay under the state's adoption of FRE 703, and, therefore, did not violated the defendant's confrontation rights. The testifying expert was not an employee of the lab and took no part in the analysis that produced the DNA profile. The expert did, however, personally conduct that statistical matching of the deduced profile to the defendant's profile. The case is People v. Sandy Williams.