Thursday, June 21, 2012

Source of the "targeted individual" test?

I hope to be offering more commentary on Williams within a few days.  Meanwhile, perhaps I can offer a solution to one mystery.  Justice Kagan quite sensibly says that where Justice Alito's "targeted individual" test comes from "is anybody's guess."  One answer, ironically, might be right here on this blog.  In a couple of commentaries, and then in a longer one in January 2011 that I put in a full posting, titled "Pure Cold Case" Prosecutions & The Confrontation Clause:  What Does The Future Hold?, Paul Vinegrad, a frequent contributor to this blog -- always resourceful and frequently, as here, wrong-headed, in my view -- suggested this test.  (He spoke about the need for "reasonable suspicion" to detain or arrest "a particular person.")  You can see Paul's posting, and the critical commentary I offered on it, by clicking here.

Of course, even if this does solve the mystery of where Justice Alito got the idea, it only pushes the mystery back somewhat.  Referring to Paul's test in my response, I said, "I’m not sure where he gets that – so far as I know there is no historical basis for it." And I pointed out what would be its stunning consequences -- for example, rendering outside the scope of the confrontation right a police officer's formal description of a crime scene, made before a suspect was identified but in full anticipation of use at an eventual trial.

Five justices rejected this theory, and for good reason.  I am sorry that four justices remain so desperate to limit the impact of Melendez-Diaz that they are willing to sign on to just about any theory that achieves that objective, no matter how lacking in foundation it might be and what devastation it would work on the confrontation right.  But five remains greater than four.


henry said...

I cannot help but wonder if any of this have to do with that these justices have a innate streak of trusting the established authority to do the right thing.

This is from the observation almost the same set of justice also dissent in southern union co vs united states, where the apprendi revolution continues with respect to jury decision or judge decision on fines.

Only surprised there is CJ Roberts joined the other side.

It's like the dissenting justices are saying what's the point in disputing all these things, they are inherently reliable and ought to be left with ppl with the established executive authority aka judges and police.

Anonymous said...

I would not at all be surprised if the Court grants cert in one of the cases being held for Williams in hopes of getting a more coherent holding. Perhaps one of the cases presents the "not for its truth" issue more cleanly than Williams did.

Anonymous said...

The Supreme Court ruled today on the cases that were being held for Williams--summarily granting, vacating, and remanding nine of them. No new grants in merits cases.

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Brian said...

I don't understand how, eight years after Crawford, we got a plurality still invoking discussions of reliability. It's not like it's a one-sided mistake either, we saw some of it in Michigan v. Bryant's majority too. Looking forward to your further comments on Williams.

BC said...

I think there are continued references to reliability because, other than Scalia and Ginsburg, the Court is having buyer's remorse over Crawford.

Anonymous said...

See United States of America v, Polidore, NO. 09-40896, 2012 WL 3264561 (6th Cir. Aug. 13, 2012), where the court held that a recorded 911 call informing the police that someone was selling crack was non-testimonial. If this case isn't an example of the mess that Bryant created, I don't know what it.

pv said...

The 6th Circuit's holding in Polidore is correct. But it's reasoning could have been more precise.

The reason why the anonymous declarant's accusatory statements are not testimonial is because they bear "no resemblance" to the historical practices that the Confrontation Clause meant to eliminate.

They bear no resemblance because: (1) they were not sworn, under oath, or formalized in any way, (2) they were not made under a government-created coercive environment, and (3) the person being accused had not yet been "targeted," i.e., arrested or detained, by any government official.

Richard Friedman said...

I'm scrambling to finish other work -- mainly a piece on Williams that I hope to post in draft here before too long -- but just a few words in response to Paul's comment.

(1) It may be that eventually five justices would vote to say that if a statement is not sworn or certified it doesn't come within the Confrontation Clause, but that hasn't happened yet, an it would be the death of the right. As of now, eight justices said in Davis that the statement in Hammon was testimonial, that part of the 911 call in Davis itself was, and that it made no sense to have something like an oath requirement.

(2) The Court has also been clear that there does not have to be a government-created coercive environment for a statement to be testimonial; a witness-originated statement can be testimonial as well. It should be obvious that an accused should not be subject to conviction on the basis of a statement shoved under the prosecutor's door.

(3) I don't think even Justice Alito thinks that the Clause should be limited to those who have been arrested or detained. That would really be ridiculous. (I don't think Hammon had been arrested or detained, either.) And as of now, five justices have rejected a "targeted individual" test.

Polidore came out of the 5th Circuit, not the 6th, by the way.

Anonymous said...

Anyone know if there any Williams like cases in the pipeline involving a "targeted" individual, or a sworn-to/certified lab report? Think the Court is likely to grant cert in such a case soon? Or like the lower courts chew on Williams for a while?

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