Thursday, January 15, 2015

Bottom-side amicus briefs in Ohio v. Clark

[Updated Jan. 27, 2015, 8:40 am]

Here are the other bottom-side amicus briefs in Clark:

First, the brief of the Innocence Network.

Second, a brief of the Amicus Project of Southwestern Law School and affiliated parties.  (I had not previously provided the link for this one; sorry.)

Third, a brief of the Arizona Attorneys for Criminal Justice and defense lawyers associations from Connecticut and Iowa.

Fourth, a brief of the Family Defense Center and other organizations.

Fifth, a brief of the National Association of Criminal Defense Lawyers.

And just to present them all in one place, here again is a link to the brief  I put in with Steve Ceci.


paul said...

Four Justices believe that the test to determine if hearsay is "testimonial" is whether the "primary purpose of the interrogation" of the declarant was to "accuse" a "targeted" person of a crime. Yet this test is not mentioned by any of the respondent's supporting amici. Nor do these amici adequately address the fact that a fifth Justice requires sufficient "formality/solemnity" before he will find hearsay to be "testimonial."

At bottom, in my opinion, the dispositive question in Clark will be what iteration of the primary purpose test five Justices are willing to agree upon, if any.

The most likely primary purpose test to gain the support of five Justices is some combination of the "targeted" test (adopted by four Justices in Williams) and Justice Thomas's "formality" test.

All of the parties to this litigation should have spent more time confronting that possibility in their briefs.

They also should have provided the Court with a practical, easily administered, test for determining when during the government questioning a person is "targeted" as a potential criminal.

As I have previously stated, that "targeting" occurs only after the government questioner has developed "reasonable suspicion" to believe that a particular person has committed a particular crime.

It can be presumed that questions asked by the government after reasonable suspicion exists has as its primary purpose accusation and, therefore, assuming that the declarant has some basic understanding that they are accusing someone of wrongdoing, the resulting statements are "testimonial."

The possibility that a child declarant's hearsay accusation is unreliable is, after Crawford, irrelevant to Confrontation Clause analysis. Yet respondent and his amici persist in their attempt to revive the Roberts reliabiity regime (without mentioning Roberts by name) that was clearly repudiated by Crawford and its progeny.

If reliability of hearsay is a federal constitutional consideration it is via the Due Process Clause. But Clark does not raise a due process challenge. Perhaps a future child hearsay case will.

Anonymous said...


When you have the facts, pound the facts. When you have the law, pound the law. When you have neither the facts or the law, pound the table.

"All of the parties to this litigation should have spent more time confronting that possibility in their briefs."

Maybe. But maybe not. Maybe engaging in the nuances would have only turned off people one needs to win. There is a logic to taking a hands off approach. In any event, in six weeks the picture should be clearer after arguments. But then again, maybe not since Thomas holds one of the key votes and he never says anything.

Professor Sherry Kolb has argued that SCOTUS should use this case to overturn Crawford and go back to Roberts. I think that is unlikely but at this stage in the Crawford game why not shoot for the moon? I sincerely have no idea which way this case will go.

paul said...

In his dissent in Bryant, Scalia states that the majority's reference to reliability-based hearsay exceptions as "relevant" to the question of whether a declarant is a CC "witness," implicitly overturns Crawford and returns to Roberts. And he rips the majority for not just coming out and expressly killing his Crawford baby -- the opinion that I believe he has stated he is most proud of.

But we know that's not the case, because the four dissenters in Melendez-Diaz and Bullcoming (all of whom were also in the majority in Bryant) -- Kennedy, Roberts, Alito & Breyer -- set forth the "targeted" primary purpose test in the subsequent, and latest, CC case -- Williams.

In any event, I would not rule out the possibility that Breyer (who prefers seemingly workable rules over inflexible First Principle doctrine) decides to join Sotomayor (the author of Bryant), Kagan (who wasn't on the Court when Crawford was decided), Kennedy (who has been, perhaps, the most vocal critic of what he called Crawford's "wooden" approach), Alito (who wasn't on the Court when Crawford was decided and has questioned whether the "testimonial" approach is proper), and Roberts (who, as the CJ, wants the Court to finally reach a comprehendable CC doctrine) in deciding to overrule Crwaford and return to Roberts or a Roberts-like reliability-based regime.

Since this slim possibility exists, it may make sense for the respondent and his amici (except Professor Friedman who has a vested interest in the testimonial approach) to repeatedly reference the purported unreliability of child hearsay in general and the even stronger argument that the child's hearsay accusation in Clark is particularly unreliable because he was found to be incompetent to testify at trial.

My (hedged) bet is that the Court either significantly narrows Crawford's approach by adopting a combination of the four-Justice "targeted" test and Thomas's "formality" test. And leaves questions of reliability to the Due Process Clause. Or, less likely, abandons Crawford (after its relatively short 10 year life) and returns to a reliability-based approach to the CC.

We shall see.

Norman Garland said...

Paul and Anonymous:
The brief we filed as amicus for the respondent addresses the primary purpose test and formality. When you posted these comments Rich has not yet posted our the link to our brief on the blog. It is there now. I urge you to look at our brief. You will probably disagree with our arguments, but we did address the points you raise.

Norman Garland said...

I forgot to say that the brief I am referring to is the one from the Amicus Project at Southwestern Law School.

paul said...

Professor Garland,

I (previously) read your brief. It doesn't address the "targeted" (primary purpose) test adopted by four Justices in Williams. In fact, your brief doesn't even cite Williams.

Without sounding presumptuous, if I had filed an amicus brief in support of Clark, I would have devoted some portion of it attempting to convince the four Justices in Williams (who adopted the "targeted" person permutation of the primary purpose test) that their test didn't comport with the pre-1791 history.

In my opinion, the "targeted" (primary purpose) test is the most historically accurate reflection of the Framers intent in including the Confrontation Clause in the Bill of Rights.

All the best,


Anonymous said...

I think the state of the CC serves as a good example of why cases should be handled by members of the experienced SCOTUS bar. If Williams had been argued by Jeff Fisher or Prof Friedman, rather than some random PD, we probably would have avoided the mess that Williams created.