Law Commons^™

Confronting The Confrontation Clause: Addressing The Unanswered Question Of Whether Autopsy Reports Are Testimonial Evidence - People V. Hall, Bailey Ince

Touro Law Review

No abstract provided.

Someone Call 911, Crawford Is Dying - People V. Duhs, Caroline Knoepffler

Touro Law Review

No abstract provided.

Criminal Procedure Decisions From The October 2007 Term, Susan N. Herman

Touro Law Review

No abstract provided.

Court Of Appeals Of New York - People V. Leon, Madeline Katz, Madeline Klotz

Touro Law Review

No abstract provided.

Appellate Division, First Department - People V. Williams, Brian E. Peterson

Touro Law Review

No abstract provided.

Testimonial Statements: The Death Of Dying Declarations? - People V. Clay, Sarah R. Gitomer

Touro Law Review

No abstract provided.

The Decline Of The Confrontation Clause In New York - People V. Encarnacion, Anthony Fasano

Touro Law Review

No abstract provided.

An Unappealing Decision For New York Dwi Defendants - People V. Pealer, Christopher Gavin

Touro Law Review

No abstract provided.

Confrontation And Forensic Laboratory Reports, Round Four, Richard D. Friedman

Articles

Crawford v. Washington radically transformed the doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. Before Crawford, a prosecutor could introduce against an accused evidence of a hearsay statement, even one made in contemplation that it would be used in prosecution, so long as the statement fit within a "firmly rooted" hearsay exception or the court otherwise determined that the statement was sufficiently reliable to warrant admissibility. Crawford recognized that the Clause is a procedural guarantee, governing the manner in which prosecution witnesses give their testimony. Therefore, a prosecutor may not introduce a statement that is testimonial …

The Sky Is Still Not Falling, Richard D. Friedman

Articles

Cases since Crawford have mainly fallen into two categories. One involves accusations of crime, made by the apparent victim shortly after the incident. In Michigan v. Bryant, a majority of the Court adopted an unfortunately constricted view of the word "testimonial" in this context. That decision was a consequence of the Court having failed to adopt a robust view of when an accused forfeits the confrontation right. How the Court will deal with this situation-one mistake made in an attempt to compensate for another-is a perplexing and important question. This Essay, though, concentrates on the other principal category of post-Crawford …

Who Said The Crawford Revolution Would Be Easy?, Richard D. Friedman

Articles

One of the central protections of our system of criminal justice is the right of the accused in all criminal prosecutions "to be confronted with the witnesses against him." It provides assurance that prosecution witnesses will give their testimony in the way demanded for centuries by Anglo-American courts-in the presence of the accused, subject to cross-examination- rather than in any other way. Witnesses may not, for example, testify by speaking privately to governmental agents in a police station or in their living rooms. Since shortly after it was adopted, however, the confrontation right became obscured by the ascendance of a …

Confrontation And Domestic Violence Post-Davis: Is There And Should There Be A Doctrinal Exception, Eleanor Simon

Michigan Journal of Gender & Law

Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal …

A Defense Attorney’S Guide To Confrontation After Michigan V. Bryant, Kathryn K. Polonsky

Kathryn K Polonsky

In 1603, the Crown charged Sir Walter Raleigh with high treason in part for plotting to murder King James I. In preparing for trial, Lord Cobham, Raleigh’s alleged co-conspirator, was interrogated and signed a sworn confession. During trial, the King used the Crown-procured ex parte testimony of Cobham against Raleigh. Raleigh demanded Cobham be brought before the court so Raleigh might interrogate him “face to face.” Raleigh was sure Cobham would prove his innocence. After all, Cobham had written a letter stating his charges against Raleigh contained no truth.

The Judges refused to allow Raleigh the use of Cobham’s exonerating …

Williams V. Illinois And The Confrontation Clause: Does Testimony By A Surrogate Witness Violate The Confrontation Clause?, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party. …

Who Must Testify To The Results Of A Forensic Laboratory Test? Bullcoming V. New Mexico, Richard D. Friedman

Articles

Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report through the in-court testimony of a supervisor or other person who did not perform or observe the reported test?

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

Articles

In Part I of this Article, I will illustrate the hidden declarant issue through a series of hypotheticals that highlight both the hearsay and Confrontation Clause problems associated with proving former testimony. Next, in Part II, I will demonstrate that treating the hidden declarant's statements as testimonial, and thus subject to exclusion on Confrontation Clause grounds, is consistent with Crawford and its progeny.

I will then demonstrate, in Part III, that historically, in both England and the United States, the accused had the right to confront hidden declarants, and that the historical exception for former testimony does not extinguish the …

"I'M Dying To Tell You What Happened": The Admissibility Of Testimonial Dying Declarations Post-Crawford, Peter Nicolas

Articles

This Article demonstrates the existence and delineates the scope of a federal constitutional definition of "dying declarations" that is distinct from the definitions set forth in the Federal Rules of Evidence and their state counterparts. This Article further demonstrates that states have state constitutional definitions of "dying declarations" (for purposes of interpreting state constitutional analogues to the Confrontation Clause of the Sixth Amendment) that may differ in important respects from the federal constitutional definition of "dying declarations."

This Article then shows that some of the definitions of "dying declarations" contained in federal and state hearsay exceptions exceed the federal and …

Melendez-Diaz V. Massachusetts: The Future Of The Confrontation Clause, Joseph Henn

Barry Law Review

The purpose of this article is to show the error in the majorities’ decision in Melendez-Diaz by approaching the issue from two perspectives. First, by investigating the cases and legal doctrines created by the Supreme Court in the years preceding Melendez-Diaz, this article will demonstrate why the case was erroneously decided. Second, this article explores the possibility that the majority decision was correct and thus the recently devised standard in Crawford v. Washington is inherently flawed. This article will further discuss the prior application of law before the Melendez-Diaz decision, offer analysis on the string of cases that led …

Melendez-Diaz And The Right To Confrontation, Craig M. Bradley

Chicago-Kent Law Review

In Crawford v. Washington, the Supreme Court overruled Ohio v. Roberts and adopted new law concerning the use of hearsay testimony at criminal trials. This was based on the Sixth Amendment's command that "In all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him .. " On its face this provision seems to say that the accused has the right to cross-examine anybody who testifies for the prosecution at trial, whether as a live witness or through hearsay. The Supreme Court acknowledged much of this in Crawford, but …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

Giles V. California: A Personal Reflection, Richard D. Friedman

Articles

In this Essay, Professor Friedman places Giles v. California in the context of the recent transformation of the law governing the Confrontation Clause of the Sixth Amendment. He contends that a robust doctrine of forfeiture is an integral part of a sound conception of the confrontation right. One reason this is so is that cases fitting within the traditional hearsay exception for dying declarations can be explained as instances of forfeiture. This explanation leads to a simple structure of confrontation law, qualified by the principle that the confrontation right may be waived or forfeited but not subject to genuine exceptions. …

Crawford, Retroactivity, And The Importance Of Being Earnest, J. Thomas Sullivan

Faculty Scholarship

In this article Professor Sullivan examines the Supreme Court's evolving Confrontation Clause jurisprudence through its dramatic return to pre-Sixth Amendment appreciation of the role of cross-examination in the criminal trial reflected in its 2004 decision in Crawford v. Washington. He discusses the past quarter century of the Court's confrontation decisions and their impact on his client, Ralph Rodney Earnest, recounting the defendant's conviction and twenty-four-year litigation journey through state and federal courts to his eventual release from prison in the only successful attempt to use Crawford retroactively known to date.

Is A Forensic Laboratory Report Identifying A Substance As A Narcotic 'Testimonial'?, Richard D. Friedman

Articles

Is a state forensic analyst's laboratory report, prepared for use in a criminal proceeding and identifying a substance as cocaine, "testimonial" evidence and so subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?

Does An Accused Forfeit The Confrontation Right By Murdering A Witness, Absent A Purpose To Render Her Unavailable?, Richard D. Friedman

Articles

If an accused murdered a witness, should he be deemed to have forfeited the right under the Sixth Amendment "to be confronted with" the witness, absent proof that the accused committed the murder for the purpose of rendering her unavailable as a witness?

Cross-Examination Earlier Or Later: When Is It Enough To Satisfy Crawford?, Christopher B. Mueller

Publications

No abstract provided.

Forfeiture Of The Confrontation Right After Crawford And Davis, Richard D. Friedman

Articles

So my topic this morning is on forfeiture of the confrontation right, which I think plays a central role in confrontation doctrine. And to try to present that, let me state the entirety of confrontation doctrine as briefly as I can. This is, at least, what I think the doctrine is and what it can be: A testimonial statement should not be admissible against an accused to prove the truth of what it asserts unless the accused either has had or will have an opportunity to confront the witness-which should occur at trial unless the witness is then unavailable-or has …

Crawford, Davis, And Way Beyond, Richard D. Friedman

Articles

Until 1965, the Confrontation Clause of the Sixth Amendment to the United States Constitution hardly mattered. It was not applicable against the states, and therefore had no role whatsoever in the vast majority of prosecutions. Moreover, if a federal court was inclined to exclude evidence of an out-of-court statement, it made little practical difference whether the court termed the statement hearsay or held that the evidence did not comply with the Confrontation Clause.

Crawford And Davis: A Personal Reflection, Richard D. Friedman

Articles

I have to say that when I stood up to argue Hammon I felt the wind at my back. I was basically a lawyer with an easy case, and there wasn't anything particularly unpredictable at the argument of Hammon. Now it got a little bit interesting, as I will explain later, because to a certain extent I was trying to argue the other case as well. But Hammon itself was sort of ordinary, normal law.

Davis And Hammon: A Step Forward, Or A Step Back?, Tom Lininger

Michigan Law Review First Impressions

Prosecutors, defense attorneys, and lower court judges hoped that the Supreme Court’s ruling in the consolidated cases of Davis v. Washington and Hammon v. Indiana (hereafter simply Davis) would provide a primer on testimonial hearsay. In retrospect, these hopes were somewhat unrealistic. The Davis ruling could not possibly clear up all the confusion that followed Crawford v. Washington, the landmark 2004 case in which the Court strengthened the right of the accused to confront declarants of testimonial hearsay. In Davis, the Court focused on the facts under review and developed a taxonomy that will be useful in similar cases, but …

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Michigan Law Review First Impressions

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …