By Craig Napier
The Daily Record Newswire
It’s October!
October means fests with dark beer and pretzels, football, a dipping thermometer and the new term of the U.S. Supreme Court.
On its second day of the “season,” the court heard arguments in a case that will have a big impact for criminal lawyers trying cases around the country — Michigan v. Bryant.
It will not have an impact like Miranda or anything, but it will be used quite frequently in situations when you have victims or witnesses who are unavailable for trial and the state is trying to introduce their statements made to police about an alleged crime.
Normally, this is a no-no under the Supreme Court case Crawford v. Washington, but because of some language in that case and a few more decided since, there is some question about what is and what is not verboten under the Constitution’s confrontation clause.
For the uninitiated, it rests on whether or not the declarent’s statements are testimonial or nontestimonial in nature. I’m sure you’re saying, “Thanks, that cleared it right up.”
However, the devil lies in what is testimonial, statements designed to be used in any pending criminal proceeding, or nontestimonial.
The court said in Davis v. Washington that the statements of a victim while on the phone with the 911 operator were not testimonial because they were spoken in an attempt to help authorities deal with an ongoing emergency.
However, in a companion case, Hammon v. Indiana, the court said statements made by a domestic violence victim sitting on her front porch with the suspect inside the same house gave testimonial statements to the police when they asked her what happened.
In the case under consideration by the court now, the Michigan Supreme Court reversed a trial court and appeals court to say that statements made by a gunshot victim about what had happened to him cannot be testified to by police when the victim died.
This squarely confronts the issue of whether any traditional exceptions to hearsay survived Crawford. I think I get the rationale behind the testimonial vs. nontestimonial logic; it is really about those firmly rooted exceptions and an attempt to narrow the field of exceptions that could be utilized by prosecutors to get hearsay into evidence.
Prior to Crawford, such hearsay evidence was allowed when a firmly rooted exception was found to allow it. As any good lawyer knows, roots grow at varying degrees depending on how much you want the evidence before a jury.
It was too arguable, I’m sure, and with Crawford, as with many cases the court gives us, they just made the argument something different.
And with many judges still operating under the older rules, many testimonial statements get in under old exceptions that don’t apply anymore.
I’m so interested in this because I feel my first trial was a split decision only because the judge failed to omit evidence that was strikingly similar to that covered by Hammon.
That case is currently in the beginning stages of appeal in Missouri, and I’d like to think that some strong language concerning the rule on what is and what is not testimonial could help the appeals lawyer’s arguments.
I have to understand, too, that language watering down the division between testimonial and nontestimonial statements will likely hurt.
It’s kind of rewarding to see things you have argued make it to the Supreme Court for consideration. It lets you know whether or not you are in line with the analysis of the folks who decide what law means in this country — and hopefully lets the people who heard you ranting about the unconstitutionality of some action in court know that you are not always full of it.
Of course, the inverse is true, too, and that is the rub of our profession sometimes.
What you are full of can be decided outside of your control at some October morning session by nine folks who resemble a choir but are rarely harmonious.
Craig Napier is an attorney in the Kirksville office of the Missouri State Public Defender System. He can be reached at ncnapier@gmail.com.
