Wednesday, September 21, 2005
Hammon: papered and ready for Conference
I have previously posted my petition for certiorari in Hammon v. Indiana
Monday, September 19, 2005
Supreme Court developments
I have previously reported on pending cert petitions in two cases, Davis v. Washington and Hammon v. Indiana, but htere is another one ahead of them on the docket, Ferguson v. West Virginia. This is a murder case, involving statements by the decedent months before his death in which he expressed his fear of the accused. The state did not initially respond to Ferguson's petition for certiorari, but the Court called for a response, so it has fileda brief in opposition, to which Ferguson has filed a reply.
Meanwhile, the Court has called for a reesponse in Davis. And in Hammon, the state filed a brief in opposition without waiting for a call from the Court. I hope to have it, and the reply that I am now preparing, on the blog soon.
Meanwhile, the Court has called for a reesponse in Davis. And in Hammon, the state filed a brief in opposition without waiting for a call from the Court. I hope to have it, and the reply that I am now preparing, on the blog soon.
Fixed website for Fisher outline
Jeff Fisher has prepared, and updates from time to time, an outline of post-Crawford developments that many readers have found very useful. He now has it at a fixed website, which you can get to at any time by clicking here.
Wednesday, September 14, 2005
Fresh accusations -- interesting developments, useful in part
The conflict in the lower courts with respect to fresh accusations has been deepened by two recent decisions.
I have been holding off reporting on Commonwealth v. Gonsalves, 445 Mass. 1, 2005 WL 2046000 (Aug. 29, 2005) because I have wanted to write a long post on it but have not yet had time, so I will report on it briefly. This was a domestic violence case involving statements made at the scene. With only one justice not joining the majority opinion, the court held that “questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense,” and was therefore per se testimonial within the meaning of Crawford. Moreover, the court said explicitly, “This includes ‘investigatory interrogation,’ such as preliminary fact gathering and assessment whether a crime has taken place.” If the statement is not made in response to interrogation – in particular, if it is made in response to “questioning by law enforcement agents to secure a volatile scene or establish the need for or provide medical care,” that does not mean that it is not testimonial; that just means that there must be a case-by-case inquiry as to “whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.” Thus, the court deals rather neatly with Crawford’s references to interrogation, but without treating interrogation as a prerequisite for a statement being deemed testimonial; the ultimate test, the one adopted previously by the Sixth Circuit among others, is the correct one. The court remanded for further findings, but indicated strongly that a statement made by the complainant to responding officers was probably per se testimonial and that a statement made by her to her mother was probably not testimonial. The first of these conclusions is clearly correct. I think the second one is much more questionable, and I wish the court had paid more attention to the question. The matter of private accusations made by the victim of a crime to a confidante is, in my view, a very troubling one; such confidantes do sometimes pass the complaint on to the authorities (as happened in this case, though apparently someone else reported the disturbance). In general, though, I think Gonsalves is a very helpful development.
Just today, the United States Court of Appeals for the Third Circuit issued United States v. Hinton. This involved two statements, one a 911 call and the other a statement by the complainant made in a squad car identifying the accused. The court adopted the Sixth Circuit approach, which is good news, and held that the statement made in the squad car was testimonial, which is also good news; the court was not distracted by the fact that this statement was made informally and not in response to interrogation. (But no good news for Mr. Hinton; the court held that admission of this statement was harmless error.) The court also held that the 911 call – in which the complainant said that an unknown assailant, whom he described, had brandished a gun and had warned him not to return to the area – was not testimonial. In this aspect of the case, the court’s analysis was quite cursory. Having (properly) applied a test based on the reasonable anticipation of someone in the complainant’s position to the statement made in the squad car, the court said that this formulation was “less helpful” in the context of the 911 call, and then pointed out that the purpose of the call was to seek police assistance. Certainly that was at least one purpose, and perhaps the dominant purpose, but if the question is one of anticipation rather than of purpose, then at least arguably the statement was testimonial; perhaps the case is less strong, though, than others in which the assailant is identified.
I have been holding off reporting on Commonwealth v. Gonsalves, 445 Mass. 1, 2005 WL 2046000 (Aug. 29, 2005) because I have wanted to write a long post on it but have not yet had time, so I will report on it briefly. This was a domestic violence case involving statements made at the scene. With only one justice not joining the majority opinion, the court held that “questioning by law enforcement agents, whether police, prosecutors, or others acting directly on their behalf, other than to secure a volatile scene or to establish the need for or provide medical care, is interrogation in the colloquial sense,” and was therefore per se testimonial within the meaning of Crawford. Moreover, the court said explicitly, “This includes ‘investigatory interrogation,’ such as preliminary fact gathering and assessment whether a crime has taken place.” If the statement is not made in response to interrogation – in particular, if it is made in response to “questioning by law enforcement agents to secure a volatile scene or establish the need for or provide medical care,” that does not mean that it is not testimonial; that just means that there must be a case-by-case inquiry as to “whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime.” Thus, the court deals rather neatly with Crawford’s references to interrogation, but without treating interrogation as a prerequisite for a statement being deemed testimonial; the ultimate test, the one adopted previously by the Sixth Circuit among others, is the correct one. The court remanded for further findings, but indicated strongly that a statement made by the complainant to responding officers was probably per se testimonial and that a statement made by her to her mother was probably not testimonial. The first of these conclusions is clearly correct. I think the second one is much more questionable, and I wish the court had paid more attention to the question. The matter of private accusations made by the victim of a crime to a confidante is, in my view, a very troubling one; such confidantes do sometimes pass the complaint on to the authorities (as happened in this case, though apparently someone else reported the disturbance). In general, though, I think Gonsalves is a very helpful development.
Just today, the United States Court of Appeals for the Third Circuit issued United States v. Hinton. This involved two statements, one a 911 call and the other a statement by the complainant made in a squad car identifying the accused. The court adopted the Sixth Circuit approach, which is good news, and held that the statement made in the squad car was testimonial, which is also good news; the court was not distracted by the fact that this statement was made informally and not in response to interrogation. (But no good news for Mr. Hinton; the court held that admission of this statement was harmless error.) The court also held that the 911 call – in which the complainant said that an unknown assailant, whom he described, had brandished a gun and had warned him not to return to the area – was not testimonial. In this aspect of the case, the court’s analysis was quite cursory. Having (properly) applied a test based on the reasonable anticipation of someone in the complainant’s position to the statement made in the squad car, the court said that this formulation was “less helpful” in the context of the 911 call, and then pointed out that the purpose of the call was to seek police assistance. Certainly that was at least one purpose, and perhaps the dominant purpose, but if the question is one of anticipation rather than of purpose, then at least arguably the statement was testimonial; perhaps the case is less strong, though, than others in which the assailant is identified.
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