To my regret, I have not posted on this blog for a long time. I will try to be better about that in the future.
The Supreme Court opens its new term next week, and there are at least two pending cert petitions, both in murder cases, raising Confrontation Clause issues.
One is my own, in Berkman v. Indiana, No. 12-10691, seeking review of Berkman v. State of Indiana, 976 N.E.2d 68 (Ind. Apps. 2012), transfer denied, 984 N.E.2d 221 (Ind. 2013). The petition raises two issues: (1) The Indiana courts hold that a discovery deposition provides an opportunity for cross-examination sufficient to satisfy the Confrontation Clause. I think this is wrong, and there is a clear conflict among states on this point. (2) In this case, the trial and appellate courts applied what I contend amounted to a per se rule that a transient disability is sufficient for a determination of unavailability. Numerous courts have done the same, but the rule properly followed by most jurisdictions is that a determination of unavailability requires consideration and articulation of various factors, including the likely duration of the disability. Here are links to the petition, the appendix to the petition, the brief in opposition, and the reply brief in support of the petition.
The second is New Mexico v. Navarette, seeking review of State v. Navarette, 294 P.3d 435 (N.M. 2013). The New Mexico Supreme Court held – as I think should be obvious – that an autopsy report performed as part of a murder investigation is testimonial for purposes of the Confrontation Clause. The petition seeks not only to reverse that holding but also to cut back dramatically on Crawford. Here are links to the petition and the reply brief in support of the petition on Westlaw and SCOTUSblog, and here is one to the brief in opposition. Sooner or later the Court will probably have to address the question of whether autopsy reports in murder cases are testimonial -- though I think it should be a no-brainer. Whether this is an appropriate case is another matter.
