Tuesday, May 27, 2014
Cert denials
The Supreme Court denied cert this morning in Turner, No. 13-127, Brewington, No. 13-504, James, No. 13-632, Ortiz-Zape, No. 13-633, Galloway, No. 13-761, Yohe, No. 13-885, and Edwards, No. 13-8618. Some of the case I had earlier listed are still pending, and two Derr, No. 16-637, and Cooper, No. 13-644, are listed for the conference of June 5, but I'd be surprised if the Court would deny outright in all these cases today and then grant in one of those. I could be wrong; I haven't looked carefully enough at the cases to see if the remaining cases are sufficiently dissimilar to to all of today's to make it plausible that the Court would deny outright in these and then grant in one of those a couple of weeks later. But for now I'm guessing that, for whatever reason, the Court does not want to revisit just yet the various questions related to how the Confrontation Clause applies to forensic reports.
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7 comments:
The Court is hopelessly deadlocked on what test should govern whether a hearsay declarant is a "witness[] against" an accused.
Unless one or more of the justices are willing to deviate from the their seemingly iron clad position on this issue, there is no reason to continue to address the subject.
Perhaps a fact pattern will arise that will cause one or more of the justices to change his/her mind. But I think that is very unlikely.
The best chance for the muddied waters of the CC to clear will be when a justice retires and is replaced by someone who is willing to view take a fresh look at the scope of the CC's reach.
In the meantime, it does appear that, for the most part, lower court's applying the testimonial approach are not holding hearsay declarant's to be CC "witnesses" unless the government was actively involved in producing the statement. So, despite the absence of a holding from the Court, lower courts have established a "state action" requirement before the CC can apply. That, in effect, most assuredly narrows the CC's scope significantly and is also a repudiation of any test that would result in a contrary finding.
The CC's scope is being narrowed. But it is by the lower court's filling the void left open by the Court. Perhaps that result is satisfactory to a sufficient number of justices that granting cert. is not required?
Coincidence does not equal causation, that is my response to the post above. The theory outlined is of course possible but I'm inclined to think that the narrowing of the CC by the states is an inadvertent rather than an intended consequence of the court's deadlock.
It seems that, even with the current make up of the Court, it can clarify a few things that it was unable to do in Williams, such as firmly reject the flawed "not-for-truth" rationale that an expert may rely on, and convey, testimonial statements from another analyst's report not for its truth but for the limited purpose of explaining her testimony. Also, if there was no consensus on the Court, then it wouldn't have made sense for them to hold and relist these cases for as long as they did. Any speculation on when the Court will be ready to take up this issue again?
I don't have any useful speculation on this. It could be that the Court waits until a change of membership makes it probable that one side or the other will win on these cases without relying on Justice Thomas.
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