tag:blogger.com,1999:blog-9532013.post2485432285298859514..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: Preliminary thoughts on the Bryant decisionRichard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-9532013.post-66835789439786238582011-03-04T18:02:32.107-05:002011-03-04T18:02:32.107-05:00I agree that the Bryant majority's assertion t...I agree that the Bryant majority's assertion that hearsay/reliability analysis should be used to determine the primary purpose of an out of court statement is completely illogical. For example, while the business record exception makes sense---because a business needs its records to be reliable in order to operate, if a document was made primarily for business related purposes it is sufficiently reliable for use at trial---that analysis does not work in reverse. The fact that an out of court statement is reliable does not shed any light on the purpose for which the statement was made. Essentially, the Bryant mayority is saying that courts should first determine the result they want, then back engineer their analysis (not that courts don't already do this).Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-88983540844802641022011-03-04T16:39:37.096-05:002011-03-04T16:39:37.096-05:00Bryant states that, "[i]n making the primary ...Bryant states that, "[i]n making the primary purpose determination, standard rules of hearsay, designed to identify some statements as reliable, will be relevant."<br /><br />What do you make of this? How will rules of hearsay help decide the primary purpose of anyhing? Is that point that testimonial statements, i.e, ones that are substitutes for trial testimony, are not relaible, while notestimonial statements, i.e., ones to meet an emergency, are reliable, so that if the statement fits within a hearsay exception it is not for trial, thus reliable and nontestimonial? Now I've confused myself.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-3836846687869228102011-03-03T15:51:49.213-05:002011-03-03T15:51:49.213-05:00Part of the problem with the decision is that the ...Part of the problem with the decision is that the Court <i>assumed</i> that Covington's version of the facts was "true." But, the Court's own rendition of the facts does not corroborate that.<br /><br /><b>FACTS:</b> we know that Covington was shot in the abdomen. We also know that when the police arrived at Covington's house, they found "a bullet on the back porch and an apparent bullet hole in the back door." [Opn. at 2]. We know that Covington told the police that he had a conversation with Bryant through the back door and when Covington "turned to leave, he was shot through the door." Id.<br /><br />Later in the decision, the majority noted that Covington "heard a shot and then he started to turn to get off the porch and then another one and that's when he was hit by a gunshot." Id. at 26, n.16.<br /><br />The First responders testified that they saw blood "on the front of his body," but to see the wound, the officers "had to move some clothing...." Id. at 28, n.18.<br /><br />Finally, Covington knew that Bryant was a "drug dealer...." Scalia, dissenting Op. at 6.<br /><br />As John Adams famously said in his defense of the British Soldiers, "Facts are stubborn things; and whatever may be our wishes ... they cannot alter the state of facts and evidence." Here we know that there were 2 shots fired - one from inside of the house (hence the single bullet hole in the door, and the bullet found lying on the porch).<br /><br />If as Covington claimed, i.e., a second shot (presumably by Bryant) was fired as he was turning and leaving, first where's the second bullet hole in the door, and next how could it have hit him in the "abdomen" versus his side or back? Couple that with the fact that the police did not testify to seeing a bullet hole IN Covington's clothing but, rather, testified that for them to see his wound they "had to move some clothing..."<br /><br />For those of us who have prosecuted or defended "street crimes," the above scenario had all of the earmarks of a "drug deal" gone bad. Equally as plausible from the <b>known</b> facts is that after the first shot which went through the door, Covington was "packing" a handgun tucked into his waistband, shot himself - hence only one bullet hole in the door and none in his clothing.<br /><br />Covington, while fleeing ditched the gun - he was obviously capable of driving as he drove to the gas station - and concocted the story that Bryant had shot him.<br /><br />I obviously don't know what caused the first jury to hang, but we know that it did. By assuming that Covington's statements to the police were "reliable," and with the lack of being able to "confront" him at trial [disregarding the forfeiture argument for a moment] about the significant, but apparently inconsistent "facts," created the Confrontation conundrum that Justice Scalia rightly complains of. Or as he said, "Twenty-five minutes is plenty of time for a shooting victime to reflect and fabricate a false story." Scalia, Op. at 13.<br /><br />Ergo - under the assumed facts - a return to <i>Roberts.</i> Just my 2 cents....Don Rehkopfhttps://www.blogger.com/profile/00591990643107446160noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-24511283281245168832011-03-02T12:48:03.371-05:002011-03-02T12:48:03.371-05:00This is an unfortunate decision that seems very re...This is an unfortunate decision that seems very result-driven. I have serious doubts that the result would have been the same had the victim not died. The irony, of course, is that after this decision, a victim who <i>does</i> survive need not testify, since the police can just relay his words for him.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-13386307813614216882011-03-02T10:43:08.179-05:002011-03-02T10:43:08.179-05:00While at first I didn't think Bryant would hav...While at first I didn't think Bryant would have much, if any, impact on the court's consideration of surrogate witness testimony, I'm starting to think otherwise. Say a forensic analyst conducts testing that produces evidence against a defendant (DNA, drugs, whatever) and drafts a report of his results. The prosecution originally intends for the analyst to testify at the defendant's trial, but for whatever reason, the analyst becomes unavailable. Could the prosecution successfully argue that since the originally intention was for the analyst to provide live testimony, the report of the testing was not made with the primary purpose of substituting for in-court testimony, and therefore, is not testimonial under Bryant? On the other hand, it could be argued that the report was draft with the intention that it could substitute of the analyst's testimony, if need be. Of course, this would not be an issue where the report was admitted as evidence pursuant to statute, as was the case in M-D.<br /><br />Anyway, just some pre-coffee thoughts.Anonymousnoreply@blogger.com