tag:blogger.com,1999:blog-9532013.post5734557320809079034..comments2024-03-28T04:12:44.103-04:00Comments on The Confrontation Blog: An illustration of the dangers of the New Mexico rule in BullcomingRichard D. Friedmanhttp://www.blogger.com/profile/08376534293308240526noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-9532013.post-65510694549154944782011-06-20T14:24:21.020-04:002011-06-20T14:24:21.020-04:00This is the original anon poster above; here too &...This is the original anon poster above; here too "professional" witnesses are friendly--indeed professional--with both sides. I'm in a jurisdiction of about 750,000 with thousands of felonies and tens of thousands of misdemeanors charged each year. Business is good.<br /><br />This communication goes on regardless whether there is a stipulation; indeed, perhaps even more when there is.<br /><br />And I'm glad someone else (anon above) has a similar experience.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-71552652254619441792011-06-19T23:50:56.599-04:002011-06-19T23:50:56.599-04:00Defense attorneys and their investigators contact ...Defense attorneys and their investigators contact and interview lab analysts all the time, just as they do with lay witnesses... especially when preparing for a jury trial where they are not stipulating to the forensic testimony.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-36980451268036777272011-06-16T16:31:20.046-04:002011-06-16T16:31:20.046-04:00But the witness would have been under no obligatio...But the witness would have been under no obligation to answer, or even respond to a phone call. My sense is that the type of pre-trial communications between defense counsel and lab witness that the anonymous commentator posits hardly ever happen, but I would be glad to know if I'm wrong.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-21083781905538009832011-06-16T16:21:19.802-04:002011-06-16T16:21:19.802-04:00My only point was that counsel could have known of...My only point was that counsel could have known of the answer the same way he found out at trial: ask the witness. But rather than sit back and wait for trial (which he presumably demanded for some other reason anyway), make a simple phone call ahead of time. Why would counsel "have had" to assume anything about the report? One finds out the strength of one's case by doing some (and sometimes simple) investigation.<br /><br />And before everyone gets excited and says that's not the way things work in the trial courts, I've been toiling in these vineyards (and on different sides) for nearly 20 years. It's not too hard.<br /><br />Again, just my two cents.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-23295034700124733382011-06-14T11:53:13.243-04:002011-06-14T11:53:13.243-04:00I certainly am not going to argue against the impo...I certainly am not going to argue against the importance of preparation and knowing one's case, but (1) I don't think it's accurate to say the Confrontation Clause can't affect guilty pleas. Pleas are negotiated in light of the prospective strength of the case at trial, and part of what happens at trial is confrontation. (2) If this case had pleaded out, I am not sure how defense counsel would have known of the error. The prosecutor would have waved the report around during negotiations, and defense counsel likely would have had to operate on the basis that it was accurate.Richard D. Friedmanhttps://www.blogger.com/profile/09512800093689534416noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-62587426371076768262011-06-14T11:41:34.466-04:002011-06-14T11:41:34.466-04:00This story from Texas seems to be a non sequitor. ...This story from Texas seems to be a non sequitor. Most people are sent to prison after pleading guilty, not after trial, and no interpretation of the confrontation clause can affect that. The logic of the argument would require all cases go to trial. The lesson of the Texas story is that parties and their lawyers--for both sides--should investigate their cases before deciding the best course of action.<br /><br />Just a thought.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-19978262910933903022011-06-10T17:55:47.368-04:002011-06-10T17:55:47.368-04:00Sotomayor will break with Kennedy, Alito, Roberts ...Sotomayor will break with Kennedy, Alito, Roberts & Breyer in Bullcoming.<br /><br />The later justices will hold that the "statement" by the nontestifying analyst -- that the defendant's BAC was .20 -- is outside the scope of Confrontation Clause protection. Their rationale will be the same as they stated in Melendez-Diaz. And, they might throw in that the "primary" purpose of the statement (under the Bryant totality-of-the-circumstances test) was not to build a case against Bullcoming. But, to the extent a "primary" purpose can be divined, was simply to create an official record as part of his official duty as an analyst.<br /><br />Sotomayor will hold that the .20 BAC statement was made for the "primary" purpose of use at a subsequent criminal trial. And, thus, under Davis & Bryant, was "testimonial" and within the scope of the CC. <br /><br />Scalia (and Ginsburg) will hold that the .20 BAC statement is "testimonial," by applying the "objective witness" test they cited in Melendez-Diaz. And, possibly, by finding a "primary" purpose to create trial evidence. Although Scalia certainly favors the much broader "objective witness" formulation.<br /><br />Kagan will join either Scalia/Ginsburg or Sotomayor. Probably the later.<br /><br />Thus, the result in Bullcoming (like the result in M-D) will depend upon whether the unsworn .20 BAC statement is formal enough to satisfy Thomas' interpretation of the CC.<br /><br />Bottom line: Plurality opinion, with Thomas once again (like in M-D) casting the decisive vote.pvnoreply@blogger.comtag:blogger.com,1999:blog-9532013.post-64845443759230828652011-06-09T15:04:29.726-04:002011-06-09T15:04:29.726-04:00The opinion in Sykes today, while not about the Co...The opinion in <i>Sykes</i> today, while not about the Confrontation Clause, worries me deeply. Justice Sotomayor once again joined the "pragmatist" "law and order" justices-- Roberts, Alito, Breyer, Kennedy-- to uphold prosecutors against defendants, just like in Michigan v. Bryant.<br /><br />Will we see this 5 member majority narrow or overturn <i>Ring</i>, <i>Blakely</i>, <i>Booker</i>, <i>Arizona v. Gant</i>, <i>Melendez-Diaz</i>, etc.?John Thackerhttps://www.blogger.com/profile/15269867695937765049noreply@blogger.comtag:blogger.com,1999:blog-9532013.post-54274854049921899522011-06-03T13:53:47.022-04:002011-06-03T13:53:47.022-04:00This is a great example, thanks for sharing it. H...This is a great example, thanks for sharing it. Hopefully the Court will have similar concerns in mind when it issues the opinion in Bullcoming.Brianhttps://www.blogger.com/profile/14062931072739261565noreply@blogger.com