Court-Martial Trial Practice BlogNow that the current slew of confrontation cases are decided it’s time to regroup.
Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).
Confrontation, Experts, and Rule 703
Articles Tagged with melendez-diaz
Crawford-Melendez-Diaz-Blazier-Bullcoming
Professor Friedman has posted the States’ amicus brief in Bullcoming v. New Mexico, along with some rather trenchant dissection of their sky-is-falling and we-are-the-government arguments.
New Mexico brief-Bullcoming
Prof. Friedman links to the respondents’s brief in Bullcoming v. New Mexico.
Blazier trail
You may be familiar with the quote:
In every case involving [state your poison], we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)(emphasis added).
And you may be familiar with this research.
Bullcoming sitrep 1
Here is an observation by federalevidence.com:
One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.
More on Crawford, Melendez-Diaz, and possibly Blazier
United States v. Blazier was argued at CAAF and you can hear the oral argument at this link.
The U. S. Supreme Court has granted certiorari in Bullcoming v. New Mexico. Courtesy of CAAFLog here is the granted issue:
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 the laboratory analysis described in the statements.
Crawford, Melendez-Diaz, Briscoe, and Blazier stew
Here is Professor Friedman’s post about Briscoe.
The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. . The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion.
The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.
Here are the SCOTUSWiki links on the Supreme Court litigation.
Urinalysis cases
In two days CAAF has granted two urinalysis cases citing to Melendez-Diaz. Note Blazier is still undecided. In the Air Force case the defense did not object, in the Navy case the defense did object.
No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues:
WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE.
Michigan v. Bryant
Professor Friedman alerts that two amicus briefs have been filed. The link to his brief does not work, but the one to NACDL does. As a reminder the QP is:
Whether statements to investigating police officers accusing someone of a crime and describing the offense after it has been completed fall outside the scope of the Confrontation Clause merely because the suspect remains at large or the declarant has been injure
Blazier – er, I mean Pendergrass update
CAAFLog has posted a link to the denial of certiorari in Pendergrass v. Indiana. When the Supremes, or any appellate court, denies a petition this is what I usually think of. Probably need to update my trial notebook because there must be a more recent “quote?” Stern & Gressman must be past a 7th edition?
[D]enial of a petition for writ of certiorari . . . simply means that fewer than four members of the Court deemed it desirable to review a decision of the lower court as a matter "of sound judicial discretion." A variety of considerations underlie denials of the writ, and as to the same petition different reasons may lead different Justices to the same result.. . . Inasmuch, therefore, all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court’s views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. United States v. Carver, 260 U.S. 482 (1923). See also, Evans and Jordan v. Stephens, et. al., 544 U.S. 942, n.1 (2005)("Nothing is more basic to the functioning of this Court than an understanding that denial of certiorari is occasioned by a variety of reasons which precludes the implication that were the case here the merits would go against the petitioner"); and see, Stern & Gressman, Supreme Court Practice, 7th ed., para. 5.7.
So, what will CAAF do about Blazier?