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.

2 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.

Richard D. Friedman said...

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.