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10-30-1985 Justice O'Connor, Per Curiam, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

In this case, the Delaware Supreme Court reversed respondent William Fensterer's conviction on the grounds that the admission of the opinion testimony of the prosecution's expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d. 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.

10-29-1985 Correspondence From Marshall To O'Connor, Thurgood Marshall

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra:

Please add the following to your Per Curiam:

JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U.S. 111, 120- 121 (1983) (MARSHALL, J ., dissenting); Wyrick v. Fields, 459 u.s. 42, 51- 52 (1982) (MARSHALL, dissenting).

10-22-1985 Correspondence From Blackmun To O'Connor, Harry A. Blackmun

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra:

My original inclination was to hold this case for No. 84-1279, Delaware v. Van Arsdall. That is still my inclination.

You now have six votes, however, for your proposed per curiam. Would you please note at the end of your opinion:

"JUSTICE BLACKMUN would grant certiorari and give this case plenary consideration."

10-22-1985 Justice O'Connor, Per Curiam, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

In this case, the Delaware Supreme Court reversed respondent William Fensterer's conviction on the grounds that the admission of the opinion testimony of the prosecution's expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d. 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.

10-21-1985 Correspondence From Brennan To O'Connor, William J. Brennan

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra,

Thank you very much for your prompt reply to my letter. I am happy to join your opinion with your suggested changes. I very much appreciate your consideration.

10-21-1985 Correspondence From Powell To O'Connor, Lewis F. Powell

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra:

I agree with your Per Curiam.

Bill Brennan's suggestions may be helpful. But my join is not conditioned on your acceptance of them.

10-21-1985 Correspondence From O'Connor To Brennan, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

I think your concerns may be satisfied by the following revisions to the circulating draft, which I am willing to make if they are satisfactory to you:

10-21-1985 Correspondence From White To O'Connor, Byron R. White

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra,

Please join me.

10-21-1985 Correspondence From O'Connor To Stevens, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

You describe Agent Robillard's testimony as involving "an implied prior representation of which the declarant disclaims present knowledge," on the grounds that his qualification as an expert implied that "he had a valid reason for reaching that conclusion at the time of his investigation." But the question reserved in Green involved an express prior representation specifically introduced by
the prosecution as substantive evidence. I see nothing in our cases that would justify embarking on the difficult and questionable enterprise of deciding when there has been an implied representation. In any event, in this case, Agent Robillard openly admitted at voir …

10-20-1985 Justice Correspondence, Unknown

Delaware v. Fensterer, 474 U.S. 15 (1985)

As the Court has granted cert on two Confrontation Clause cases, I think this case should be held. New Mexico v. Earnest, No. 85-162 (Oct. 18 Conference), which raises the question whether the Clause precluded admitting a hearsay confession of a codefendant without first considering the statement's reliability, will discuss issues of reliability and will reinterpret Ohio v. Roberts, 448 u.s. 56 (1980) in ways that are certain to be relevant to this case. Delaware v. Van Arsdall, No. 84-1279, raises the question of whether barring the defendant from cross-examining a witness about a possible deal with the prosecutors in …

10-18-1985 Correspondence From Stevens To O'Connor, John Paul Stevens

Delaware v. Fensterer, 474 U.S. 15 (1985)

In his concurring opinion in California v. Green, the Chief Justice emphasized "the importance of allowing the states to experiment and innovate, especially in the area of criminal justice." 399 U.S. at 171. Because I believe that comment is applicable to the Delaware court's consideration of the question that is functionally equivalent to the
question left open in Green (and discussed in footnote 18 on page 169), I adhere to my vote to deny cert.

10-18-1985 Correspondence From Brennan To O'Connor, William J. Brennan

Delaware v. Fensterer, 474 U.S. 15 (1985)

At conference I vote to hold this case for Delaware v. Van Arsdall, No. 84-1279. Although I still prefer that disposition, I wonder if you would consider making some changes in your per curiam so that I could join it. My suggestions are the following:

10-17-1985 Justice O'Connor, Per Curiam, Sandra Day O'Connor

Delaware v. Fensterer, 474 U.S. 15 (1985)

In this case, the Delaware Supreme Court reversed respondent William Fensterer's conviction on the grounds that admission of the opinion testimony of the prosecution's expert witness, who was unable to recall the basis for his opinion, denied respondent his Sixth Amendment right to confront the witnesses against him. 493 A. 2d. 959 (1985). We conclude that the Delaware Supreme Court misconstrued the Confrontation Clause as interpreted by the decisions of this Court.

10-17-1985 Correspondence From Rehnquist To O'Connor, William H. Rehnquist

Delaware v. Fensterer, 474 U.S. 15 (1985)

Dear Sandra,

Please join me in your Per Curiam.

09-12-1985 Preliminary Memorandum, Unknown

Delaware v. Fensterer, 474 U.S. 15 (1985)

1. SUMMARY: Petr contends that Sup. Ct. Del. erred in reversing resp's conviction on the ground that admission of testimony of a prosecution witness violated resp's rights under the Confrontation Clause of the Sixth Amendment.