This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.
Thursday, June 17, 2010
Respondent's brief in Bryant
Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.
3 comments:
paul v
said...
The victim in Bryant was not a "witness" under the CC.
The victim's statement was not produced with the involvement of "adversarial" government officials responsible for investigating and prosecuting crime.
There is no indication that any of the officers who asked the victim "what happened?" were "adversarial" to anyone -- the victim and/or an identified suspect -- at the time the question was asked.
Indeed, at that time, none of the officers even knew who the suspect was.
If they hold true to their dissenting opinion in Melendez-Diaz, Kennedy, Roberts, Breyer & Alito should hold that the victim was not a CC "witness."
Clearly, the victim's statement does not meet Thomas's formality test.
Scalia & Ginsburg probably will find the victim's statement to be "testimonial" (i.e., the victim is a CC "witness") by interpreting the term "ongoing emergency" very narrowly.
That leaves Sotomayor & Kagan(?).
Prediction - at least 5-4 in favor of Michigan.
Prediction - the Melendez-Diaz dissenters move away from Crawford's "testimonial" formulation to their "adversarial relationship" concept.
I won't predict what's going to happen, but Paul's "produced with the involvement of 'adversarial' government officials responsible for investigating and prosecuting crime" doesn't represent the definition of testimonial, and is contrary to footnote 1 of Davis.
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3 comments:
The victim in Bryant was not a "witness" under the CC.
The victim's statement was not produced with the involvement of "adversarial" government officials responsible for investigating and prosecuting crime.
There is no indication that any of the officers who asked the victim "what happened?" were "adversarial" to anyone -- the victim and/or an identified suspect -- at the time the question was asked.
Indeed, at that time, none of the officers even knew who the suspect was.
If they hold true to their dissenting opinion in Melendez-Diaz, Kennedy, Roberts, Breyer & Alito should hold that the victim was not a CC "witness."
Clearly, the victim's statement does not meet Thomas's formality test.
Scalia & Ginsburg probably will find the victim's statement to be "testimonial" (i.e., the victim is a CC "witness") by interpreting the term "ongoing emergency" very narrowly.
That leaves Sotomayor & Kagan(?).
Prediction - at least 5-4 in favor of Michigan.
Prediction - the Melendez-Diaz dissenters move away from Crawford's "testimonial" formulation to their "adversarial relationship" concept.
I won't predict what's going to happen, but Paul's "produced with the involvement of 'adversarial' government officials responsible for investigating and prosecuting crime" doesn't represent the definition of testimonial, and is contrary to footnote 1 of Davis.
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