Crawford-Davis Symposium at Regent Law School

As mentioned in a previous post, Brooklyn Law School is holding a one-day symposium on Crawford-Davis related issues this Friday. Two weeks later, on Oct. 13-14, Regent Law School in Virginia Beach, Virginia, is holding a two-day symposium, titled "Crawford, Davis, and the Right of Confrontation: Where Do We Go from Here?" You can read about it here.

I'll be happy to give notice on this blog about any other confrontation-related events.

Crawford and Capital Sentencing

Andy Fine has called to my attention two recent cases, one quite good and the other not. I’ll discuss the bad one in another posting. The good one is United States v. Mills,, 2006 WL 2381329 (C.D.Cal., Aug 17, 2006), which holds that Crawford applies throughout the sentencing portion of a capital case. At least one other court had held that Crawford applies at the so-called “eligibility” phase – which establishes whether the accused is eligible for the death penalty – but not at the “selection” phase – which determines whether the death sentence actually will be imposed. The Mills court explicitly relied upon, and praised, John Douglass’s article, Confronting Death: Sixth Amendment Rights at Capital Sentencing, 105 Colum. L. Rev. 1967 (2005).

As I have suggested before, it appears to me the result reached by Mills has substantial appeal – if not under the Confrontation Clause then under the Due Process Clause. Suppose a person gives testimony in court during the selection phase. The court should not be able to excuse that witness from cross-examination simply because the court believes the testimony to be true. And, considering just a strong case, it seems clear the result should remain the same if the person makes a statement out of court with the intention that it be used at trial. Otherwise, the person could effectively testify without coming to trial and without taking an oath or being subject to cross-examination. This argument doesn’t distinguish capital sentencing from other sentencing proceedings; I don’t have any settled opinion as to whether the arguments treating death penalty proceedings as constitutionally different have merit.

One aspect of Mills is perplexing. The court says in a footnote, “As to non-testimonial statements, the post-Crawford standard remains unclear.” Aw, come on. The judge is aware of Davis – he had just cited it shortly before – but for that proposition he only cites pre-Davis cases. (Some of the court’s rulings as to whether particular statements are testimonial may also be arguable, but I won’t analyze those.) Really, it should be clear by now: If a statement is not testimonial, the Confrontation Clause doesn’t apply.

James Duane on the Puzzling Failure to Recognize the Death of Roberts

Crawford, in holding that testimonial statements lie at the core of concern of the Confrontation Clause and that satisfying the Roberts reliabiity standard does not suffice to render them admissible, left open the question of how, if at all, the Clause applies with respect to non-testimonial statements. Crawford suggested that Roberts may still apply to such statements, or that perhaps the Clause poses no obstacle at all to them. Now Davis has provided an answer, or at least Justice Scalia surely thought it has. James Duane of Regent Law School has written a short piece on the puzzling failure of some lower courts to recognize that Davis declared that the Confrontation Clause places no constraint at all on the admissibility of non-testimonial statements. The piece will be published in the Fall issue of Criminal Justice, but with permission it is available to read now, by clicking here.

In time, I assume it iwll be clear enough that Davis has left no room for the Roberts standard: Crawford held that an opportunity for confrontation, not reliability, is necessary with respect to testimonial statements, and Davis says that with respect to non-testimonial statements the Confrontation Clause simply does not apply. That, in my view, is the proper result as a matter of principle -- the Clause referes to witnesses, and witnesses are those who make testimonial statements -- and I think it will help lend a useful focus and clarity to the law of the Confrontation Clause. It may well be, however, that in occasional cases the failure of the prosecution to facilitate the production of the declarant of a non-testimonial statement will be held to be a violation of due process. If the prosecution is very sloppy with a small DNA sample, thus preventing the defense from examining it, I think that raises a possible constitutional issue; the same result could apply if the prosecution is very sloppy about allowing the defense to cross-examine the declarant of an important statement, even if the statement is non-testimonial and so the Confrontaiton Clause does not apply.

By the way, I suppose Roberts is still good (though somewhat dubious) law in one respect. The case itself involved the question of whether the witness should be deemed unavailable for Confrontation Clause purposes. That issue remains an important one under Crawford with respect to prior testimony, and although one may easily question the Roberts Court's conclusion that the prosecution made sufficient efforts to procure the witness's testimony for her to be be deemed unavailable, the Court has never indicated any doubt about that holding.

No Confrontation Problem if Not Offered for the Truth

The confrontation right only arises if the statement in question is offered into evidence for the truth of what it asserts. This basic principle, enunciated in Tennessee v. Street, 471 U.S. 409 (1985), was specifically reaffirmed in Crawford, 541 U.S. at 59 n.9. Occasionally a court will forget this point and create a Confrontation Clause issue where none exists.

I was reminded of this by the decision yesterday in State v. Woinarowicz, 2006 N.D. 179, 2006 WL 2360187. This was a drug case, and the defendant objected to the introduction of evidence found in her hotel room. A police officer testified at a suppression hearing that a friend of the defendant had given consent to enter and search the room. The defendant objected on the basis of the Confrontation Clause.

The North Dakota Supreme Court rightly rejected this objection. The basis for the Court's decision was that the Confrontation Clause doesn't apply at suppression hearings. Well, fair enough. That's certainly what the decisions say, though as I've pointed out before if the Clause itself doesn't apply there still should be some confrontation right as a matter of due process at suppression hearings: A court wouldn't let a prosecution witness step down from the stand without being subjected to cross, and the prosecution shouldn't be able to avoid cross by taking the testimony out of court.

A crisper, cleaner way of reaching the result in this case would have been to hold that there could not have been a confrontation problem because the friend's utterance was not being offered for the truth of any proposition that it asserted. Now, one might say that it literally asserted that the police had consent and that it was offered to prove that the police had consent. But the utterance here was not a report of any matter. Rather, it was an act of operative significance. If the friend said what the officer testified she said, the police had consent because she said it -- that utterance was the act giving the police consent. The officer therefore testified to a consent-giving event that he personally witnessed, and one could not ask the prosecution to do better than that.

Analysis of post-Davis Supreme Court decisions

I previously posted a brief, preliminary summary, prepared by Andrew Fine, of the Supreme Court's decisions after Davis, denying certiorari in some Crawford-related cases involving fresh accusations and GVRing (granting, vacating and reversing for reconsideration in light of Davis) in others. Here is a more extensive analysis, prepared by the Public Defender Service for the District of Columbia under the supervision of Tim O'Toole, and presented here with their permission and my thanks. How the GVRed cases will eventually be resolved is not yet certain, of course, but I think it is clear that the Court's decisions reflect an unwillingness to assume that a fresh accusation was probably made during an "ongoing emergency".

"First Impressions" -- An On-Line Symposium from the Michigan Law Review

The Michigan Law Review has begun an on-line "companion" journal called First Impressions, which has just published its first edition, a set of essays on Davis and Hammon. The contributors are Andrew Fine, Lisa Griffin, Tom Lininger, Joan Meier, Robert Mosteller, and me. (No, this was not my idea; this project is entirely attributable to the gumption of the student editors.) The essays reflect a wide range of views. You may see them by clicking here. Congratulations to the editors!

Shifting the Burden, Take 2

One response to Crawford that has been attempted by prosecutors in some states has been to tell defendants, in effect, "We are introducing into evidence a testimonial statement made by a witness whom we are not calling to the stand. But the witness is available, and if you like you may subpoena her and call her as your own witness." In State v. Campbell, 2006 ND 168, 2006 WL 2074742, called to my attention by James Duane, the North Dakota Supreme Court recently held this procedure constitutionally acceptable in the context of the report of a state crime lab. The court strongly suggested that the report was testimonial (I think it plainly was), but decided it need not determine that issue definitively because, in its view, the defendants had waived the confrontation right. The basis for this conclusion was that a statute gave the defendants the right to subpoena the author of the report and they did not do so. I have previously discussed at some length on this blog reasons why I believe that such a procedure is constitutionally inadequate. I will not repeat those arguments; you may read the prior posting by clicking here.

I will add several further thoughts, though. First, suppose that a state adopted a general procedure that whenever a prosecution witness testified the accused could indicate his desire for cross-examination, but that cross would be deferred until the close of the prosecution's case, at which time the accused would have the option of recalling the witness. Obviously, such a procedure would be a dramatic change of traditional criminal trial procedure. It seems unlikely to me that it would satisfy the Confrontation Clause. But the subpoena process approved by Campbell is worse, because the initial testimony is not presented live and the defendant has to subpoena the witness, not simply demand cross.

Second, the logic of the Campbell opinion appears to be unlimited with respect to types of statement. That is, the prosecution could present its entire case through affidavits and say to the defense, "We believe these witnesses are available. If you insist on confronting them, subpoena them and call them as part of your case." That would work an even greater revolution in criminal trial procedure. Perhaps implicit in Campbell is the idea that the declarant there was under the control of the state, so that there could be no doubt about his or her availability. But if so, why should the defense have to subpoena the witness, rather than simply demand that the state produce him or her? And if that is all the defense has to do, shouldn't the witness have to testify as part of the prosecution's case rather than as part of the defense's?

Third, the subpoena procedure would make inevitable frequent litigation over availability of the witness, with the incentives twisted. Note that under Crawford, as under Roberts before it, it is the prosecution, the party seeking admission of the prior statement, that sometimes claims the witness is unavailable. Under the ordinary post-Crawford procedure, the issue of unavailability arises only if there has been a prior oportunity for confrontation. Even within that relatively small category of cases, the prosecution has a strong incentive to produce the witness -- it may prefer the live testimony of the witness to the out-of-court statement, but in any event producing the witness avoids the issue and so is safer. Thus, the prosecution will want to demonstrate unavailability in those cases, and pretty much only those cases, in which it is not able easily to produce the witness. But the subpoena process turns the incentives around. Under that process there has not been an opportunity for confrontation, so if the witness is unavailable the out-of-court testimonial statement must be excluded. Thus, the defendant, the party on whom the burden of producing the witness is placed, has a strong incentive to demonstrate that he cannot do so. If the defense reports that it subpoenaed the witness but the witness does not appear, then the prosecution would frequently contend that the fault is the defense's -- the subpoena was too late, or it went to the wrong place, or it wasn't served properly, or no effort to enforce it was made. (And what effort should the defense make?) If the witness is determined to be unavailable, the statement must be excluded and the process will have achieved nothing. The prosecution might demonstrate that the witness is available by producing her itself, in which case also the process will have achieved nothing. Or perhaps the court will determine that the witness could have been produced by proper efforts, but that seems unacceptably speculative.

Fourth, it is perfectly acceptable, and probably virtually inevitable, to require the defendant, as a condition of predicating error on a denial of confrontation, to make a timely demand that the witness be produced. The critical differences between such a requirement and the subpoena process approved by the Campbell court are: (1) Under the subpoena process, but not under a timely demand requirement, it is the defense that does the work of procuring the witness's attendance. (2) Under the subpoena process, the witness testifies as part of the accused's case, raising numerous difficulties analyzed in my prior posting. Under a timely demand requirement, the witness testifies as part of the prosecution case, which is as it should be. Note, then another recent case, Howard v. United States, 2006 WL 1834995 (D.C. Jul. 6, 2006; amended, Jul. 10), called to my attention by Jeff Fisher. The situation was similar to that of Campbell, and the court likewise held that the accused waived the confrontation right by not subpoenaing the author of a lab report. But here the court not only emphasized that the subpoena was cost-free to the defendant but declared:

Had the defense served a subpoena on the chemist, as the statute permits, the government could have presented him in its case in-chief, and the chemist then would have been available for cross-examination by the defense.

If the court insists that the witness, if subpoenaed, testify as part of the prosecution's case, then a subpoena procedure that is cost-free to the defendant looks very much like a requirement of a timely demand.

Finally, having said all this, I think it may be possible to articulate situations in which the accused may be required to certify that he has some good reason for not being willing to waive the confrontation right -- just wanting to impose costs on the prosecution and thereby gain a litigation advantage not being a good reason. Indeed, in my prior post on burden-shifting, I said that I would soon present another post discussing this possibility. But I have not made good on the promise yet; as I began drafting it became apparent to me that the matter was more complex than I had anticipated. I will continue mulling, because I think this is a crucial subject, and I welcome comments.

Andy Fine on Davis and Hammon

Andy Fine has written a fine practitioner's guide to issues presented in light of Davis and Hammon. Its primary audience is New York appellate defense lawyers, but it should be useful to a far wider range of readers than that. Accordingly, with Andy's permission, I am attaching it here.

New Crawford Symposium at Brooklyn

Brooklyn Law School, under the leadership of Bob Pitler, ran an excellent symposium on Crawford in February 2005. They are now holding another conference, on September 29. For more information, click here.

Regent Law School, in Virginia Beach, Va., will also be holding a symposium on Crawford issues in October. More information later.

Post-Davis decisions by the Supreme Court: A Preliminary Look

The Davis opinion left many questions unanswered, even within the realm of statements made shortly after a crime to law enforcement officials. Some indication beyond the opinion of what the Supreme Court is thinking about these issues may be gleaned from its post-Davis decisions, denying certiorari in some cases and granting, vacating, and remanding in others. Andy Fine has drawn these cases to my attention and written a very brief summary, which I am posting here with his permission, and with a very short comment afterwards; I am hoping to post a more detailed analysis before too long.

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Very Early Fallout From Davis/Hammon

Some may have thought that the Supreme Court’s term ended on June 29 with its decisions in Hamdan v. Rumsfeld and Clark v. Arizona, but the Court also issued an interesting batch of “GVRs” on June 30, granting cert, vacating and remanding for reconsideration in light of Davis/Hammon in seven cases. Criminal defendants were the petitioners in each instance. Six of these seven cases involved crime-scene statements to responding police, and two of those, Wright v. Minnesota and Lewis v. North Carolina, were appeals from state supreme court decisions holding such statements to be nontestimonial under Crawford. See State v. Wright, 701 N.W.2d 802 (Minn. 2005); State v. Lewis, 619 S.E.2d 830 (N.C. 2005). The Lewis decision is particularly intriguing, since the North Carolina Supreme Court’s analysis in some respects resembled that adopted in Davis/Hammon; the state high court said that when police responding to emergency calls for help ask preliminary questions at the crime scene to ascertain whether the victim, other civilians, or the police themselves are in danger, they are not obtaining information for the purpose of making a case against a suspect, and the ensuing statements therefore are not testimonial. And in Forrest v. North Carolina, the Court “GVR’ed” where the declarant, described as nervous, shaking, and crying, blurted out most of her statements before any questions were asked. See State v. Forrest, 596 S.E.2d 22 (N.C. App. 2004).

On the other hand, the Court denied cert to the state in Gonsalves v. Massachusetts, in which the Massachusetts Supreme Judicial Court had held that statements that are the product of any questioning by law enforcement agents other than to secure a volatile scene or ascertain the need for medical care are testimonial per se, and that other statements are testimonial if a reasonable person in declarant’s position would anticipate the statement’s use against the accused in a prosecution. Commonwealth v. Gonsalves, 833 N.E.2d 549 (Mass. 2005). The Court also denied cert to one criminal defendant appealing from an adverse state supreme court decision involving crime-scene statements to responding police, Hembertt v. Nebraska. See State v. Hembertt, 696 N.W.2d 473 (Neb. 2005).

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Friedman psotscript: Hembertt, involved a woman running outside of a house as police arrived, crying and saying , "[H]e's inside. He's upstairs." This appears to be the type of case that the Court had in mind when it noted that some statements made to police at the scene are non-testimonial because within the emergency doctrine. To this case, we might also add
Foley v. Massachusetts, denying cert in Commonwealth v. Foley, 833 N.E.2d 130 (Mass. 2005), a companion case to Gonsalves involving responses to the question "[W]here is he?" and to an inquiry about the need for medical care. In addition, the issue had not been properly preserved in Foley, as in Greene v. Connecticut, denying cert in State v. Greene, 874 A.2d 750 (Ct. 2005).

An interesting sidelight on Crawford and Craig

In its decision today in United States v. Gonzalez-Lopez, the Supreme Court, per Justice Scalia, has an interesting discussion in passing of Crawford with an intriguing citation to his dissent in Maryland v. Craig, 497 U.S. 836 (1990), which allowed children to give testimony outside the presence of the accused in some circumstances. The Court holds that the right to have counsel of one's choice is violated without the need to show prejudice. In doing so, it refuses to follow the following logic: The right is meant to ensure a fair trial, and therefore unless a fair trial was impaired there is no violation. The Court says:

It is true enough that the purpose of the rights set forth in that Amendment is to ensure a fair trial; but it does not follow that the rights can be disregarded so long as the trial is, on the whole, fair. What the Government urges upon us here is what was urged upon us (successfully, at one time, see Ohio v. Roberts, 448 U. S. 56 (1980)) with regard to the Sixth Amendment's right of confrontation--a line of reasoning that 'abstracts from the right to its purposes, and then eliminates the right.' Maryland v. Craig, 497 U. S. 836, 862 (1990) (SCALIA, J., dissenting). Since, it was argued, the purpose of the Confrontation Clause was to ensure the reliability of evidence, so long as the testimonial hearsay bore 'indicia of reliability,' the Confrontation Clause was not violated. See Roberts, supra, at 65-66. We rejected that argument (and our prior cases that had accepted it) in Crawford v. Washington, 541 U. S. 36 (2004), saying that the Confrontation Clause 'commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.' Id., at 61.

So also with the Sixth Amendment right to counsel of choice. It commands, not that a trial be fair, but that a particular guarantee of fairness be provided-- to wit, that the accused be defended by the counsel he believes to be best. . . .

The discussion is significant for Confrontation Clause analysis for at least two reasons.

First, it offers a key to the intellectual foundations behind Crawford. Scalia indicates that an unrestrained functional approach -- determine the purpose of the rule, and then simply decide on a case- by-case basis whatresult would support that purpose -- is unacceptable in this context. He is operating more categorically, but assessment of the purpose of the doctirne is essential in determining what the critical categories are.

Second, Scalia was able to take a pot shot at Craig on behalf of a majority of the Court -- the four more liberal members of the Court and himself. Scalia dissented bitterly in Craig, and while Crawford untouched, its categorical nature certainly had more affinity with Scalia's dissent in Craig than with Justice O'Connor's opinion for the majority. Gonzalez-Lopez (a return to the win column for Jeff Fisher, by the way) provides Scalia with a little more ammunition for oerruling Craig in light of later developments.

Hammon and Davis decided

The Supreme Court decided Hammon v. Indiana and Davis v. Washington today, in a consolidated opinion written for the Court by Justice Scalia; Justice Thomas wrote a separate opinion. Hammon won 8-1 and Davis lost 9-0. You may see the syllabus and the opinions by clicking here. I'm obviosuly delighted by the victory in Hammon (the case I argued) and very disappointed by the result in Davis. Commentary on the decisions by several people, including me, may be found at www.scotusblog.com/ . For today, I will probably not comment further here or there (we've just started a vacation, I got very little sleep last night, and I am going to take a nap!), but your comments are more than welcome, and I'll join in later.

Supreme Court to decide retroactivity of Crawford

The Supreme Court granted cert today in Whorton v. Bockting, No. 05-595, thus agreeing to review the decision of the Ninth Circuit that Crawford applies retroactively to habeas cases. In one sense, this is utterly unsurprising, because the conflict between the Ninth Circuit, on the one hand, and other circuits is very clear. But the Court conferred on the case in January, issued no decision, and then held it without another conference until last Thursday. I had thought maybe the Court was holding the case because it thought the decisions in Davis and Hammon might bear on it, but if that were so one would not expect a decision now. So what's up? An explanation, which seems plausible, offered to me by one knowledgeable Corut-watcher is that there were four but not five votes for summary reversal, and the Court was waiting to see whether the new justice would make five. When the answer was no, the Court had to grant cert.

As I understand it, it is possible the Court may decide the case under a threshold issue, not specific to the Confrontation Clause, that AEDPA severely restricts the retroactive application of Supreme Court decisions in habeas cases.

Comments on any aspect of this case?

Later-arising evidence and adequacy of the opportunity for cross

Crawford, quite properly, gives prosecutors incentive to take the testimony of witnesses before trial, under oath and subject to confrontation, in case the witness is unavailable at the time of trial. It appears to me that prosecutors should do so far more often than they do now and that procedural rules making it difficult to hold such a pretrial examination should be amended. But pretrial examinations inevitably raise the question of whether the opportunity for cross-examination was adequate. One problem is whether counsel had adequate time to prepare. Another, to some extent the other side of the same coin, is whether the earlier opportunity should be deemed inadequate because some information that might have been used in cross and that is available at trial was not available at the time of the earlier proceeding.

In People v. Jurado, 2006 WL 870936, a capital case decided yesterday, the California Supreme Court weighed in. There, the prosecution had taken the "conditional examination" – basically, as I understand it, a deposition held for purposes of preserving testimony – of a key witness, who became unavailable by the time of trial. The prosecution offered the prior examination over the objection that the opportunity for cross was inadequate because the witness had subsequently made an important statement that would have been valuable in cross-examination. The state supreme court rejected this argument, pronouncing flatly, "Absent wrongful failure to timely disclose by the prosecution, a defendant's subsequent discovery of material that might have proved useful in cross-examination is not grounds for excluding otherwise admissible prior testimony at trial."

This issue is a difficult one, posing the question of what is the baseline against which to measure adequacy of the opportunity for cross. On the one hand, it appears that if the trial been held at the time of the prior examination there would have been no basis to contend that the opportunity for cross was inadequate; furthermore, later-arising evidence, such as a new statement by the witness, would not likely require a new trial. On the other hand, if the witness had testified at trial – which is when we expect most witnesses to testify – then the defense would have had the benefit of cross-examining on the basis of the later statement. It may be that the accused could still impeach the witness effectively, even without the witness being present for cross, but it is doubtful that this would eliminate altogether the differential between earlier and later cross.

I am inclined to think that the later time – the time of the trial – is the more appropriate baseline, and that the court should consider how serious is the lost opportunity to cross-examine on the basis of the later-received evidence. This would leave matters rather indeterminate in this area, but that might be better than the broad decision by the California Supreme Court.

Transcripts of Arguments in Davis and Hammon

The transcripts of the arguments in Davis and Hammon are now available. You can get the Davis transcript by clicking here, and the Hammon transcript by clicking here. I'm sure every stammer of mine reported in the transcript is accurate, but there are two words reported inaccurately in the Hammon transcript that I will note here, for whatever it might be worth. On p. 3, line 12, in my very first sentence, it has me using hte word "similar" when I said "simple". And on p. 61, line 18, right in the middle of my peroration it has "abated" when I said "evaded".

Report on the Hammon and Davis arguments

Davis and Hammon were argued on Monday, and now we wait for the decisions.

Robert H. Jackson once wrote, “[A]s Solicitor General, I made three arguments in every case. First came the one I had planned – as I thought, logical, coherent, complete. Second was the one actually presented – interrupted, incoherent, disjointed, disappointing. The third was the utterly devastating argument that I thought of after going to bed that night…” Advocacy Before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A. J. 801, 803 (1951). I think the main difference between Justice Jackson and me is that my too-late thoughts wake me up early in the morning rather than keeping me up late at night.

When the transcripts of the arguments become available, I will post them on the blog. Meanwhile, readers can find accounts in the press, and I offer below the observations recorded that night, at my request, by my 13-year-old daughter, who sat through the full arguments in both cases, two hours in all.

Hammon v. Indiana case
Supreme Court of USA
March 20, 2006

Rebecca’s Supreme Court Decoration Notes

Ceiling Notes

• 25 red boxes on ceiling.
• 4 flowers in each box (flowers weren’t always in the same pattern)
• 100 total flowers in red boxes
• 84 little white boxes on ceiling
• 40 long white flowers in 20 blue boxes on ceiling
• Blue squares w/ flowers in each of 4 corners
• 6 lights in blue boxes on ceiling
• 30 little blue boxes with white flowers (not counting corners or lights) in total

Other Notes

• In mural above justices, there were 30 people total
• Facing towards front of court room on left, the mural has only 15 people in total
• 24 pillars total

Reply Briefs in Davis and Hammon

Yesterday was the second anniversary of Crawford, and to celebrate I filed my reply brief in Hammon, which you can get by clicking here. Jeff Fisher filed his reply brief in Davis last week, and you can get it by clicking here.

The cases are now set for argument on Monday, March 20.

A Personal Confrontation Bibliography

Areader has asked for a listing of my writings on confrontaiton. Here are citations. I will try to add in links in the near future.

Is Barking Up the Wrong Tree Assertive Conduct? and other contributions to an electronic symposium published in 16 Mississippi Coll. L. Rev. 1 (1995).

Prior Statements of a Witness: A Nettlesome Corner of the Hearsay Thicket, 1995 Sup. Ct. Rev. 277.

Confrontation Rights of Criminal Defendants, J. F. Nijboer & J. M. Reijntjes, Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence, 533-41 (1997).

Confrontation and the Definition of Chutzpa, 31 Israel L. Rev. 506 (1997).

Anchors and Flotsam, Book Review of Mirjan Damaška, Evidence Law Adrift, 107 Yale L. J. 1921 (1998).

Confrontation: The Search for Basic Principles, 86 Georgetown L.J. 1011 (1998).

Truth and Its Rivals in the Law of Hearsay and Confrontation, 49 Hastings L.J. 545 (1998).

Thoughts from Across the Water on Hearsay and Confrontation, Oct. 1998 Crim. L. Rev. 687.

Lilly v. Virginia: A Chance to Reconceptualize the Confrontation Right, AALS Section on Evidence Newsletter (Spring 1999), at 5.

Confrontation Confronted (with Margaret A. Berger and Steven R. Shapiro), an adaptation of the amicus curiae brief submitted to the U.S. Supreme Court on behalf of the American Civil Liberties Union in Lilly v. Virginia (No. 98-5881), 42.3 Law Quadrangle Notes 90 (Fall/Winter 1999).

The Suggestibility of Children: Scientific Research and Legal Implications (with Stephen J. Ceci), 86 Cornell L. Rev. 1 ( 2000)

Lilly v. Virginia: Glimmers of Hope for the Confrontation Clause?, International Commentary on Evidence http://www.law.qub.ac.uk/ice (July 10, 2000)

"E" is for Eclectic: Multiple Perspectives on Evidence, 87 University of Virginia L. Rev. 2029 (2001).

The Conundrum of Children, Confrontation, and Hearsay, 65 Law and Contemporary Problems 243 (2002).

Dial-In Testimony (with Bridget McCormack), 150 University of Pennsylvania L. Rev. 1171 (2002).

No Link: the Jury and the Origins of Confrontation Right and the Hearsay Rule, in John W. Cairns and Grant McLeod (eds.), The Dearest Birth Right of the People of England: The Jury in the History of the Common Law, 93, Hart Publishing Ltd. (2002).

Remote Testimony, 35 Michigan J. of Law Reform 695 (2002).

Crawford v. Washington, AALS Section on Evidence Newsletter (Fall 2003), at 2.

Confrontation as a Hot Topic: The Virtues of Going Back to Square One, 21 Quinnipiac L. Rev. 753 (2003).

‘Face to face’: Rediscovering the right to confront prosecution witnesses, 8 Int’l J. Ev. & Proof 1 (2003).

Minimizing the Jury Over-Valuation Concern, 2003 Mich. St. DCL L. Rev. 967.

Adjusting to Crawford: High Court Decision Restores Confrontation Clause Protection, 19 Crim. J. No. 2, p. 4 (2004).

The Crawford Transformation, Section on Evidence Newsletter (Spring/Summer 2004), at 2.

The Confrontation Clause Re-Rooted and Transformed, 2003-2004 Cato Supreme Court Review 439 (2004).

Crawford Surprises: Mostly Unpleasant, 20 Crim. J. No. 2, p. 36 (2005 (symposium issue).

Grappling with the Meaning of “Testimonial”, 71 Brooklyn L. Rev. 241 (2005).

State-side briefs in Davis and Hammon

The state-side briefs in Davis and Hammon were filed on Thursday, February 2. To look at PDF copies of each brief, click below.

1. Brief of the respondent State of Washington, in Davis v. Washington.

2. Brief of the respondent State of Indiana, in Hammon v. Indiana.

3. Amicus brief of the United States, in Davis.

4. Amicus brief of the United States, in Hammon.

5. Amicus brief of 27 states, in both cases.

6. Amicus brief of Cook County, Illinois, in both cases.

7. Amicus brief of Wayne County, Michigan, in Hammon.

8. Amicus brief of the National District Attorneys Association, in both cases.

9. Amicus brief of the National Network to End Domestic Violence and 56 other organizaitons (and one individual) devoted to remedying and addressing domestic violence, in both cases.

10. Amicus brief of the National Association of Counsel for Children, in both cases.

Reply briefs are due March 9.

Crawford and Bruton -- any relation?

I've gotten a couple of inquiries tonight -- and some others before -- about the relation of Crawford to Bruton. It seems to me that the two cases address issues along different dimensions. The question addressed by Crawford is when introduction of an out-of-court statement would violate the accused's confrontation rights. The Bruton problem, at least in its classic form, arises when there are co-defendants and introduction of a confession by one defendant would violate the confrontation rights of the other defendant but not those of the declarant. Bruton, in other words, assumes the answers to the substantive confrontation questions -- OK against one defendant, a violation against the other -- and then addresses the question of how to resolve that situation. Thus, it seems to me that Crawford and Bruton have very little to do with one another, except that Bruton problems are more likely to arise under Crawford than under the prior regime, because confrontation problems are recognized more often.

I am not particularly confident on this because I don't know a lot about Bruton. I'd welcome comments from anybody who has any insights or information to offer on this question. Please identify yourself!