Bottom-side amicus briefs in Bryant

Yesterday was the due date for amicus briefs supporting the respondent (the defendant) in Michigan v. Bryant. I filed one, which you can read by clicking here, and the National Association of Criminal Defense Lawyers filed another, which you can read by clicking here. If I learn that there are others, I will post them as well.

Respondent's brief in Bryant

Here is the brief, filed yesterday, of respondent Bryant in Michigan v. Bryant. Amicus briefs supporting Bryant are due on the 23rd. I expect to file one.

Cert denied in Pendergrass (and reply brief)

As reported in a comment by an anonymous reader, the Supreme Court denied cert this morning in Pendergrass v. Indiana. I may have mroe to say on this later. For now, I'll simply say that the basic issue presented by the case -- who must testify as to the results of a forensic lab test -- is an important one that the Court will have to resolve sooner or later.

I never posted Pendergrass's reply brief in support of certiorari, but for completeness will do it now; you can see it by clicking here. Personally, I think the issue is well enough joined that the Court could have taken this case if it were disposed to resolve the matter now. It may be that both sides from Melendez-Diaz are a little wary given the addition of yet another new Justice.

State's BIO in Pendergrass

The state has filed its Brief in Opposition in Pendergrass v. Indiana. You can read it by clicking here.

Sooner or later, the Court is going to have to address the basic issue raised by this case -- whether a prosecutor may prove an event or condition (here, the conduct and results of a lab test) by presenting the testimony of a person who did not observe that event or condition.

State-side amicus briefs in Bryant

The Solicitor General's Office and 36 states have filed amicus briefs on the state's side in Michigan v. Bryant. You can read the SG's brief by clicking here and the states' brief by clicking here. Both briefs, like that of Michigan, take the perspective of the interrogator in determining whether the statement is testimonial. I think this is a basic error, and I hope the Court does not fall into it.

I assume that if SG Kagan is confirmed to the Court she will be recused from sitting on this case, given that her name is now on the cover of a brief submitted in it. And that means that it is possible that the Court will ultimately be equally divided, which would leave the decision below untouched.

State's brief in Michigan v. Bryant

The State, which is the petitioner, has filed its brief -- a day early -- in Michigan v. Bryant, the pending case on fresh accusations. You can read it by clicking here. I expect to be filing an amicus brief on behalf of the respondent. So for now I will confine myself to a few short comments.

1. The brief justifies its name. It is refreshingly short -- the body is only 17 pages.

2. At the very outset, it poses the Question Presented: "[A]re preliminary inquiries . . . nontestimonial . . . ?" But the question isn't whether the inquiries, preliminary or not, are testimonial. The question is whether the statements, in this case by the victim, are testimonial or not. One of the critical points that I hope will be clarified as a result of this case is that the question of whether a statement is testimonial or not must ultimately be made from the perspective of the speaker (or of a reasonable person in the position of the speaker), not from that of the questioner, if there is one.

3. The brief appears to take the position that any statement made in response to police interrogation before the police have ascertained the identity and location of the perpetrator is non-testimonial. This view would vitiate much of the confrontation right. It would also distort the incentives of police, and detract from their protective function.

More on Bryant

Some more on Bryant: Here, once again, are links to the Michigan Supreme Court opinion, from the court's website and from Westlaw. And here, via Scotusblog, are links to the petition for certiorari and to the brief in opposition.

Bryant will give the Court a chance to resolve several important issues in confrontation law. Here are several points I hope it will establish:

1. The proper perspective for determining whether a statement is testimonial is that of the speaker – that is, of the potential witness – not of a police interrogator, if there is one. The state will try to argue that in this case when the police came to the scene they did not know how dangerous it might be. Even if that assertion were true – and it seems dubious at best – it is clear that the victim knew that the assailant posed no immediater danger. The victim's statement was made for evidentiary purposes, to describe the crime and identify the person who committed it. On this ground, it should be considered testimonial.

2. To the extent formality is a requisite for a statement to be deemed testimonial, it is satisfied by demonstrating that a reasonable person in the position of the declarant would expect the statement to be used in investigation or prosecution of a crime. It would make no sense to adopt a separate formality requirement. The purpose of the Confrontation Clause is to ensure that testimony is given under the proper conditions. To hold that a statement clearly made in anticipation of evidentiary use is not testimonial because it was given informally would stand logic on its head and invite witnesses and government authorities to evade the confrontation right by giving and taking such statmeents informally.

3. That the witness is in a medical emergency does not render non-testimonial his statements describing the crime and identifying the assailant. The situation of the victim was dire – but he did not help it by identifying the shooter and describing the circumstances of the shooting. Plainly, these statements were made for testimonial purposes.

4. That the suspect is at large when the witness speaks does not render the statements non-testimonial. The victim did not have any reason to believe that either he or anybody else was in further imminent danger from the assailant. A rule making a statement non-testimonial whenever the suspect identified by the statement is at large would yield absurd results, invite abuse, and create an incentive for bad policing.

One further thought: As mentioned in my first post on this case, I think it is an interesting question whether, under what I believe to be the optimal rule for forfeiture of the confrontation right, Bryant should be held to have forfeited the right. That depends on whether it was feasible, consistent with standards of humaneness, to take the victim's deposition. I believe that to the extent that one has an intuitive feeling that the statement in this case should be admitted this is responsive to an impulse that Bryant should not be allowed to have killed the victim and then caused his statement to be excluded on grounds of forfeiture. But Giles v. California appears to foreclose this resolution of the matter. I very much hope that what I regard as a mistake in one direction in Giles does not lead the Court to make a compensatory but broader mistake in construing the breadth of the confrontation right in Bryant.

Cert grant in Bryant

I was out of touch, skiing, yesterday, and am slow in reporting the news that the Supreme Crut granted cert in Michigan v. Bryant; I had previously reported on the state supreme court case. More on this later.

Cert petition on "Who must testify?"

Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.

G . . . VR in Briscoe

One June 25, the day the Supreme Court decided Melendez-Diaz, most observers -- including me -- confidently predicted that it would GVR Briscoe -- that is grant the petition, vacate the case, and remand it to the Virginia Supreme Court for further consideration in light of Melendez-Diaz. Well, now that has happened, in a rather odd way. The Court granted the petition on June 29. And, as many readers already know, today -- after full briefing and argument -- it vacated and remanded. You can find the per curiam opinion -- and the Court is listing it as an opinion, rather than as an order -- by clicking here, and you need not budget more than a few seconds to read it.

Thus, we have the result that most observers fully expected right after the Melendez-Diaz decision in June. We will probably not know, at least for a long time, why the Court decided to take the case. But there has been considerable speculation that it did so to give it an opportunity to reconsider Melendez-Diaz, or cut back on it, given the replacement of Justice Souter by Justice Sotomayor. A comment by Justice Scalia at argument lent some force to this theory.

Twenty-five states and the District of Columbia, as amici, explicitly asaked the Court to overrule the case. That didn't happen.

The essence of the argument presented by Virginia and the United States was implicitly that the Court should overrule Melendez-Diaz to the extent that it held that a state violates the Confrontatin Clause if it presents testimony in written form, leaving it to the defendant, if he wishes, to put the witness on the stand. (Virginia contended that the now defunct statute involved in the case required the prosecution to guarantee the presence of the witness, a reading of the statute that I believe is unjustified, and both Virginia and the United States conceded that this would be required to make the statute valid.) That didn't happen.

Instead, we have a per curiam decision, for a unanimous Court that now includes Justice Sotomayor rather than Justice Souter, treating Melnedez-Diaz without question as good law, as one would expect the Court should do.

I hope that states and prosecutors that have been waiting in hopes that somehow the Court would go back on what it just decided seven months ago today will now get on with what they should do. They should recognize that numerous states have long acted in a way that fully complies with the Confrontation Clause as it is so well applied in Melendez-Diaz, and that they can do the same.

No doubt, the issue of who must testify with respect to lab results will have to be resolved by the Court. In fact, Jeff Fisher has just filed a cert petition on this issue, and I will post that soon. Eventually, perhaps, the Court will also adress the lower-significant issues of whether a state may require a defendant who demands live testimony to assert a good faith reason or an intent to cross-examine.

But for right now, on an issue that is -- pardon the expression -- orthogonal to those, the issue of how must a prosecution witness testify, the critical point confirmed by Melendez-Diaz remains the law: A prosecution witness must testify live, face to face with the accused, and not in writing.

Top 50 Criminal Justice and Criminology Blogs

I just received word that Justice City, USA, another blog, listed the Confrontation Blog as one of the top 50 Criminal Justice and Criminology Blogs. I didn't even know there were 50 blogs in the field! But it's an interesting list, which you can find at.

http://careersincriminaljustice.net/?p=60

In any event, my thanks to readers. I look forward to being able to comment with (relative) lack of restraint once Briscoe is decided.

Transcript in Briscoe

The Supreme Court heard argument yesterday in Briscoe v. Virginia. You can read the transcript by clicking here. I will hold substantive comments -- including about the exchange on the word "orthogonal" -- until after the decision.

Here are a couple of corrections, though, as to case names. On page 8, line 21, the case I referred to was Learn, not Warren.

On page 50, lines10-11 the cases to which Ms. Kruger referred were Inadi and White v. Illinois.

Reply brief in Briscoe

I have just served and filed the reply in Briscoe. You can read it by clicking here.

The argument will be on January 11, at approximately 11 am. I will argue on behalf of the petitioners. Steve McCullough, who became the Solicitor General of Virginia while the petition in this case was pending, will argue on behalf of Virginia. I want to take this opportunity to say that he has been extremely gracious, as well as professional, throughout the entire matter. The United States has asked for and received 10 minutes of time, from Virginia's allotment; I don't know who will argue.

Briscoe: Bottom side amicus briefs, and argument date

The Solicitor General has filed an amicus brief in support of Virginia in the Briscoe case. You can read it by clicking here. Twenty-six states and the District of Columbia have also filed a brief in support of Virginia, and you can read that one by clicking here.

The argument has been set for January 11.

Respondent's Brief in Briscoe

The Commonwealth of Virginia has just filed its brief in Briscoe v. Virginia. You can read it by clicking here. The reply brief is due November 25, and I believe the argument will likely be held on January 11.

Joint Appendix in Briscoe

For anybody who might be interested, here is a link to the Joint Appendix in Briscoe

Petitioners' Brief in Briscoe filed

I have filed the Petitioners' Brief in Briscoe v. Virginia (U.S., Supreme Court, No. 07-11191) today. You may see it by clicking here.

Cert granted in Briscoe

As some readers already know, the Supreme Court granted cert today in Briscoe v. Virginia, on a petition I filed last year. The petition sought review of the decision of the Supreme Court of Virginia in Magruder v. Commonwealth, 275 Va. 283, 657 S.E.2d 113 (2008). You can read the petition by clicking here, the Commonwealth's brief in opposition by clicking here, and my reply brief in support of the petition by clicking here.

I had said that I would comment on the dissent in Melendez-Diaz. In light of the grant in Briscoe, I will not do that.

An initial reaction to the Melendez-Diaz decision

Here are some early thoughts about the majority opinion in Melendez-Diaz v. Massachusetts, 2009 WL 1789468, and Justice Thomas’s concurrence. I’ll try to write in a few days about the dissent.

First, this is a terrific decision. It is the right result, for the right reasons. It clears up a lot of issues that should have been clear. It should have been unanimous; the principal concern it raises is not anything it says, or doesn’t say, but that only five justices joined it, and one of those five is about to leave the Court.

An anonymous commenter to my earlier post said that the Court never made an affirmative argument as to why the lab reports were testimonial. I don’t think that is correct. Part II of the opinion makes the case. It does so briefly because Justice Scalia believes – accurately, I think – that this is an easy case, a “rather straightforward application of Crawford.” First, the Court says that affidavits are in the core class of testimonial statements identified by Crawford, and these certificates are clearly affidavits. Correct. Sufficient for the result. But then the Court gives an underlying basis. Although it had just quoted the three definitions of “testimonial” recited by Crawford, now it just applied one, the right one (or at least the one closest to right) – the statements were made “under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” And under that standard, the case is an easy one; indeed, the sole purpose of the certificates was evidentiary. Easy case.

But the Court goes on to respond to a “potpourri” of counter-arguments. As an introduction, it notes that its result does not upset a long-standing, well-established body of law; most of the decisions allowing lab reports in without a live witness are from the Roberts era.

The first counter-argument it knocks down is that the certificates are not testimonial because they are not accusatory. Lots of witnesses give testimony that is not accusatory. It would wipe out a good deal of the confrontation right if it were limited to statements that are accusatory. Descriptions of a crime scene, narrations of the victim’s whereabouts or of the defendant’s – none of these are accusatory.

Next, the Court knocks down the idea that somehow the Confrontation Clause doesn’t apply because lab technicians are not “conventional” witnesses. It breaks this down into three parts. One is that the witness’s observations were “near-contemporaneous” – to which the Court’s response is essentially, “Not really true, and irrelevant in any event.” Second, the lab analyst doesn’t observe the crime or any human action related to it. That’s pretty similar to the “accusatory” argument – lots of testimony falls outside that narrow category. Third, the statement wasn’t made in response to interrogation. Once again, so what? The Court emphasizes a point it made in Davis – a volunteered statement can be testimonial. (And anyway, it says, this was in response to a police request.) All plainly right.

Third is the argument that somehow the certificates are different because they report on a scientific test. That, says the Court, is just an invitation to return to the pre-Crawford regime of Roberts. Right. And anyway, these statements aren’t always so reliable. But lest anyone believe that the Court’s discussion of reliability signaled that it was hedging on its rejection of reliability as the governing criterion for the Confrontation Clause:

The analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation; we would reach the same conclusion if all analysts always possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.

I didn’t know that Mother Theresa’s reputation for veracity was so strong – but otherwise, clearly correct.

Fourth, the Court blasts the idea that the certificates should be exempt as business or official records. Once again, the Court's basic take is "Not true, and so what anyway?" The certificates don't qualify under the traditional exception because they were produced for use at trial. And if the exception did extend so far, it wouldn't do the prosecution any good. The Court gives a clarification, which was necessary but should not have been, of the relationship between the Confrontation Clause and hearsay exceptions:

Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because – having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial – they are not testimonial. Whether or not they qualify as business or official records, the analysts' statements here – prepared specifically for use at petitioner's trial – were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.

Fifth is the argument that the power to subpoena the analyst, either under the Compulsory Process Clause or a state statute, adequately fulfills the confrontation right. Justice Scalia gives this argument the back of the hand that it deserves, dismissing it in a single paragraph – though several states had adopted it. And it was dangerous, too, because the principle was limitless and would have posed a significant threat to the continuing vitality of the Confrontation Clause. I confess I was a little sorry to see this part of the opinion; my petition in Briscoe v. Virginia, which has been held pending this decision, had raised this issue, and I would have loved to argue it. Instead, we get handed a victory without argument. Darn.

Finally, and perhaps what most motivated the dissenters, is concern about the burden to the judicial system. Once again, the response is basically two-fronted. Sure the Confrontation Clause, like other constitutional guarantees, makes prosecution more burdensome, but that does not give us leeway to ignore it. At greater length, the Court expresses doubt about "dire predictions": "Perhaps the best indication that the sky will not fall after today's decision is that it has not done so already." Plenty of states do not rely on certificates (or on surrogate witnesses), and they have managed. I will write more about this issue later, but for now just a couple of quick points: First, most defendants, as the Court says, have no desire for the lab technician to appear. Second, the Court properly notes that a simple notice-and-demand statute is valid. Under such a statute, if the prosecution gives timely notice of of intent to use a certificate, the defendant must make a timely demand for the witness to appear or give up the right. Correct.

Finally, one brief point about Justice Thomas's concurrence. He has, incorrectly in my view, placed emphasis on formality. But these certificates were as formal as could be. I don't think this was a particularly difficult case for him.

More at a later time. Now, I'm going to celebrate my 20th anniversary with my wife. A better gift from the Court than Giles, which was decided a year ago today.

Melendez-Diaz reversed

Scotusblog reports that Melendez-Doiaz has been reversed, by a 5-4 vote, with Justice Sclaia writing the majority opinion and Justice Kennedy writing a dissent. I will post more when I know more!