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.
Monday, June 18, 2012
Opinions in Williams
You can read the opininos in Williams v. Illinois by clicking here. Commentary from me later.
9 comments:
pv
said...
What a doctrinal mess!
Looks like formality (or informality) will decide case outcomes (in expert witness cases), i.e., Thomas holds the trump cards.
Agreed, re the bench/jury trial distinction. My impression is that the whole case creates only more confusion about what can come in at trial, rather than clarifying anything.
Besides the jury/bench confusion, in a case where an expert relies on a certified (and therefore formal enough for Thomas) lab report, is Williams not controlling? Is the "not for its truth" rational for FRE 703 dead, since 5 justices rejected it? It is almost as if Williams actual won the legal argument regarding the intersection of 703 and the CC.
In your opinion, after reading Williams, do you believe that there are 5 justices who would hold that Amy Hammon's statements to the cops -- before she signed the affidavit -- are not testimonial? If so, why? If not, why?
The answer to this question will provide a lot of insight into the future of Confrontation Clause doctrine.
Paul's question is a good one. Recall that in the Davis opinion, which resolved Hammon as well, Justice Scalia said for 8 justices that it was an easy case. Nevertheless, in Giles, Justice Alito indicated that the statement involved there probably shouldn't have been deemed testimonial, and I thought that that statement was probably materially similar to the one in Hammon. So I wasn't terribly surprised that he took what might be considered a sidelong shot at Hammon in Williams. But golly, Hammon was so clearly right that I've got to believe that among Roberts, Kennedy, and Breyer I'd get at least one vote and perhaps all three. If not, then we might as well acknowledge that witnesses to a crime may speak at leisure to the police in their living rooms, and never take an oath or face a trier of fact or the accused or be subjected to adverse examination, and yet they would be able to supply sufficient evidence for a conviction.
The four justices clearly state that hearsay is not barred by the CC unless it (1)involves "formalized" statements and (2) involves statements having the primary purpose of accusing a targeted individual of a crime (slip op., at 29).
The four justices also stated that Hammon involved an "informal" statement (slip op., at 30).
Isn't this a pretty strong indication that these four justices would join with Thomas's dissent in Hammon (regarding the "formality" question) if the issue was before them at this time?
It seems to me that there are five justices who are prepared to hold that Amy Hammon's informal (i.e., pre-affidavit) accusatory statement is not barred by the CC.
And the only way to bar its admission (by relying on the CC) would be to establish a bad faith intent on the part of the prosecution to "evade confrontation" at trial (see Thomas's opinion in Williams at p. 9, fn. 5).
Seems to me that bad faith "evading confrontation" might be established when a prosecutor knows that a declarant is available to testify at trial but doesn't want to put them on the stand because (1) they have baggage that might undermine their credibility or (2) the prosecutor believes that they will "go sideways" and repudiate their earlier statement and wants to put on a "cleaner" case by simply using their initial, accusatory, nontestimonial hearsay statement.
So are we going to have pre-trial "evading confrontation" hearings probing a prosecutor's intent?
I think if a SA office changes its procedures to require all forensic reports not be sworn or certified in light of Williams, an argument could be made that the change was made in order to evade the CC, especially if the standard practice before hand was to have such reports sworn/certified. It would be hard to prove up, but I'd be surprised if we don't see such claims in the near future.
And if the defense has a good faith belief the prosecution is trying to evade the CC, why not have a hearing on it?
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9 comments:
What a doctrinal mess!
Looks like formality (or informality) will decide case outcomes (in expert witness cases), i.e., Thomas holds the trump cards.
The bench trial v. jury trial distinction is a particularly fascinating (headscratching?) one.
Agreed, re the bench/jury trial distinction. My impression is that the whole case creates only more confusion about what can come in at trial, rather than clarifying anything.
Besides the jury/bench confusion, in a case where an expert relies on a certified (and therefore formal enough for Thomas) lab report, is Williams not controlling? Is the "not for its truth" rational for FRE 703 dead, since 5 justices rejected it? It is almost as if Williams actual won the legal argument regarding the intersection of 703 and the CC.
Prof. Friedman,
In your opinion, after reading Williams, do you believe that there are 5 justices who would hold that Amy Hammon's statements to the cops -- before she signed the affidavit -- are not testimonial? If so, why? If not, why?
The answer to this question will provide a lot of insight into the future of Confrontation Clause doctrine.
Thanks.
Paul's question is a good one. Recall that in the Davis opinion, which resolved Hammon as well, Justice Scalia said for 8 justices that it was an easy case. Nevertheless, in Giles, Justice Alito indicated that the statement involved there probably shouldn't have been deemed testimonial, and I thought that that statement was probably materially similar to the one in Hammon. So I wasn't terribly surprised that he took what might be considered a sidelong shot at Hammon in Williams. But golly, Hammon was so clearly right that I've got to believe that among Roberts, Kennedy, and Breyer I'd get at least one vote and perhaps all three. If not, then we might as well acknowledge that witnesses to a crime may speak at leisure to the police in their living rooms, and never take an oath or face a trier of fact or the accused or be subjected to adverse examination, and yet they would be able to supply sufficient evidence for a conviction.
Prof. Friedman,
The four justices clearly state that hearsay is not barred by the CC unless it (1)involves "formalized" statements and (2) involves statements having the primary purpose of accusing a targeted individual of a crime (slip op., at 29).
The four justices also stated that Hammon involved an "informal" statement (slip op., at 30).
Isn't this a pretty strong indication that these four justices would join with Thomas's dissent in Hammon (regarding the "formality" question) if the issue was before them at this time?
It seems to me that there are five justices who are prepared to hold that Amy Hammon's informal (i.e., pre-affidavit) accusatory statement is not barred by the CC.
And the only way to bar its admission (by relying on the CC) would be to establish a bad faith intent on the part of the prosecution to "evade confrontation" at trial (see Thomas's opinion in Williams at p. 9, fn. 5).
Seems to me that bad faith "evading confrontation" might be established when a prosecutor knows that a declarant is available to testify at trial but doesn't want to put them on the stand because (1) they have baggage that might undermine their credibility or (2) the prosecutor believes that they will "go sideways" and repudiate their earlier statement and wants to put on a "cleaner" case by simply using their initial, accusatory, nontestimonial hearsay statement.
So are we going to have pre-trial "evading confrontation" hearings probing a prosecutor's intent?
I think if a SA office changes its procedures to require all forensic reports not be sworn or certified in light of Williams, an argument could be made that the change was made in order to evade the CC, especially if the standard practice before hand was to have such reports sworn/certified. It would be hard to prove up, but I'd be surprised if we don't see such claims in the near future.
And if the defense has a good faith belief the prosecution is trying to evade the CC, why not have a hearing on it?
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