Articles Tagged with confrontation

Courtesy of federalevidence here is their list of potential significant evidence issues affecting criminal cases this coming year.

  1. Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions
  2. Confrontation Clause: More Notice and Demand Rules?
  3. Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations
  4. Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause
  5. Circuit Split: Admission Of Pre-Miranda Silence
  6. Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted?
  7. More Judicial Criticism of the “Inextricable Intertwinement" Theory
  8. Rule Amendments: “Restyling” Federal Rules of Evidence
  9. Pending Rule Amendment: FRE 803(10) – Absence of Public Record
  10. Cameras In The Courtroom: Increasing Requests for Televising Supreme Court Proceedings

On item 8., which will depend on how the President “adopts” the restyling.  Interesting that there may be issues surrounding implementation of the restyled rules.

The FRE were “restyled” by amendments effective December 1, 2011. The amendments were intended to make the rules easier to use and were not intended to result in substantive changes. As the restyled rules are applied, one question will be whether language differences in the new version result over time in substantive modifications.

The respondent in Michigan v. Bryant has filed his brief and is found here courtesy of Professor Friedman (who indicates a likely amicus filing on his part).

Here is the QP:

Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

CAAFLog advises that Pendergrass v. Indiana, No. 09-866, is scheduled for the 10 June case conference at the Supremes.  Here courtesy of Prof. Freidman counsel for Pendergrass and also of Melendez-Diaz and Briscoe “fame,” is the Pendergrass cert petition.  Here also is the state of Indiana’s brief in opposition to certiorari at this link.

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz.   C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense
appellate divisions from the other services, on the following:

We’ve spent a lot of time over the last months addressing Crawford issues in the context of forensic reports.  Let’s not forget that there are some exceptions to Crawford and confrontation.

Professor Colin Miller writes about the co-conspirator “exception” to Crawford.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are non testimonial, even if they are made to confidential informants.

Here is a link to the full cert petition in Pendergrass v. Indiana.  The question presented is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).

Well, that may be anti-climatic?  I think the Supremes punted.  Here’s a link to the Briscoe memorandum opinion, more later.

PER CURIAM. We vacate the judgment of the Supreme Court of Vir-ginia and remand the case for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massa-chusetts, 557 U. S. ___ (2009).

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