Thursday, June 24, 2010

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.


paul v said...

Why is everyone ignoring the following statements by the Melendez-Diaz dissent in their attempt to avoid going "dangerously wrong" by basing constitutional interpretation upon "historical guesswork."

(1) "We should limit the Confrontation Clause to witnesses like those in Raleigh's trial." and

(2) "[O]ut-of-court statements should only 'require confrontation if they are produced by, or with the involvement of, adversarial government officials responsible for investigating and prosecuting crime.'"

Isn't there a more direct fit between this "adversarial relationship" standard and the historical record (in particular Raleigh's Case), than that which accompanies the evidentiary-purpose standard proposed by Mr. Kry? Shouldn't the Court do exactly what the Melendez-Diaz dissent states -- avoid "historical guesswork"?

Under the "adversarial relationship" standard, once such a relationship (between the government and a suspect) solidifies, the declarant would be a "witness" for CC purposes and all of his/her ensuing statements would be inadmissible absent confrontation, regardless of their formality or lack thereof.

For CC purposes, the government and a particular suspect become adversaries once the government has "probable cause" to arrest a particular person for a particular crime.

Applying this standard to Bryant: At the time the officers posed the "What Happened?;" "Who Did It?;" and "Where Is He?" questions, they had not yet developed "probable cause" to arrest anyone. Indeed, they had not even developed "reasonable suspicion" to detain anyone. The officers were simply not acting in an adversarial capacity to anyone, including the declarant, at the time the statements were made.

The "adversarial relationship"/"probable cause" standard is also more consistent with the Court's precedent than Mr. Kry's "evidentiary purpose" test or Prof. Friedman's "objective declarant" test.

Application of this standard is consistent with the results in Crawford, Davis & Hammon, as well as all of the Court's pre-Crawford CC cases.

It would also result in more reasonable results in the undercover operations situation where, after the government has targeted a particular person (and has "probable cause" to arrest them) they send in an operative for the specific purpose of deliberately eliciting evidence from a declarant/co-conspirator for use at a subsequent trial against all conspirators. Under the "adversarial relationship"/"probable cause" standard, the declarant would be a CC "witness." However, under the "evidentiary-purpose" test (and Prof. Friedman's "objective declarant" test), the unwitting declarant's accusatory statements would not be barred by the CC.

Application of the "adversarial relationship"/"probable cause" standard would also eliminate the conundrum involving statements by very young children to investigating government officials. Prof. Friedman's very young kids = barking dogs analogy would not be needed to keep CC doctrine coherent.

If the four dissenting justices in Melendez-Diaz hold true to their word, it appears as though the development of CC doctrine will be undergoing a needed facelift. Since Justice Thomas is not about to budge from his formality-based formulation (notwithstanding Mr. Kry's persuasive, although inference-based historical argument), it would appear that there are at least five justices who will hold the victim/declarant in Bryant was not a CC "witness."

Oh well, just when we thought that the "testimonial" approach was going to live at least as long as the Ohio v. Roberts reliability regime ... How prophetic the late Chief Justice Rehnquist's words are proving to be ... The saga continues.

Richard D. Friedman said...

Well, Paul's test has absolutely nothing to do with the history of the confrontation right, which as I emphasize in my brief long predates the institutions of public prosecutors and police forces. It would also severely constrict the confrontation right -- it would, for example, allow the prosecution to use, without interference by the Confrontation Clause, the first identifying statement from a witness who knew full well that the statement was going to be used as juridical proof. I won't predict what the Court will do, but if they adopt anything like this test it will, I think, be virtually throwing away the central right of our criminal justice system.

Dinah Menil said...
This comment has been removed by a blog administrator.
Anonymous said...

The link to your amicus brief is broken.

Richard D. Friedman said...

Sorry -- I'll try to fix this promptly.

Richard D. Friedman said...

Should be fixed now.