"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, June 23, 2006

SCOTUS right on two...

Davis v. Washington -- no one will be surprised if I think this is a common-sense opinion. Scalia rules that
statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentiallly relevant to later criminal prosecution.

So a 911 call is admissible when it's relating an ongoing situation, as in Davis, where the battered wife was relating what her assailant was doing; while in Hammon, the second case considered in the joint opinion, the hearsay was about criminal conduct that had already ended.

The case is not really remarkable (except for defining more clearly the scope of Crawford), since it essentially reaffirms the common law understanding of excited utterance or present sense impression exceptions to the hearsay rule (cf., Doe v. Thomas, 227 Va. 466, 318 S.E.2d 382 (1984)) as being reliable stand-ins for trustworthiness in lieu of cross-examination. Ken's fear that this hearsay exception will trump the 6th Amendment is misplaced. As Scalia noted, it's relatively easy for a trial court to figure out when the "exigent" or excited utterence part of the hearsay is over and the "investigatory" part begins. The Court figured it out pretty well in the Davis case, and other than an ideological belief that judges will simply find against defendants, there's no reason to assume courts won't do their jobs.

To the extent such excited utterances can be self-serving or designed to get the defendant in trouble, as Ken insinuates, they can be attacked in argument to the fact finder as such... that is, they should, as Scalia holds, be admissible as a threshold matter, but what weight to give them is an entirely different and eminently arguable question. Good lawyers like Ken will effectively point out when and why such a statement, while admissible, might not be worth much credence.

Dixon v. U.S.: Where the defendant claims duress as an affirmative defense, the Supreme Court holds that the common law practice does not offend against due process by placing the burden of proof to show duress on the defendant. The government need only prove the elements of the offense, and its burden of production is discharged. If the defendant wants to claim duress, she bears the burden to prove it.

This case, again, only makes common sense. The opposite conclusion, urged by the defendant, would have the government prove a negative: that there was no duress beyond a reasonable doubt! Especially with a modern, statutory offense such as lying on a firearms form, the scienter element is strictly limited: "Did the defendant knowingly sign the form?" These are in some degree "strict liability" type offenses, and duress does not negate the element of "knowingly" engaging in the conduct. Duress typically negates mens rea or bad intent, not scienter: if I'm truly forced to commit a crime that requires malicious intent, then I should be found not guilty because I acted not from malice but from duress. The Court not surprisingly concluded that in crimes without such an intent element the common law burden-shifting to prove duress does not interfere with due process of law.

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