4th 5th and 6th Amendment

25 October

• 3-5 pages is a reasonable expectation for the length of the motion.
• You say, "at an evidentiary hearing, the defendant offers to prove..." and then lay out the facts. So say what you want, what your legal theory is, and then what you'd expect to show at the evidentiary hearing you want. I think I can show this, and if I do show this, I'm entitled to X relief under Y law.
• Confrontation.
  The basic idea is a face-to-face meeting between accuser/witness and defendant. Obviously, in Olden Dayes, there would have been no technological way to take testimony without having the witnesses in the room where the trial was held (and the defendant was). The government has to produce witnesses at trial, in other words. There are at least 3 distinct components to that meeting that are developed in case law over time:
  1. The accuser has to look at the defendant.
  2. The accused has the opportunity to meet the gaze of the witness.
  3. The jury is the audience for this interaction.
  These are three psychologically complex phenomena, and they're understood to be critical to the meeting of accuser and accused.

  There's a fourth important thing, though: opportunity for cross-examination. The ability to ask the witness questions. And this has always been a big deal: even when you couldn't call witnesses of your own, or have a lawyer, or testify on your own behalf, you could at least ask questions of witnesses. That was pretty much your only right to defend yourself.

  There are and have always been limits on the topics and extent of cross-examination, but it's a right that has pretty much always been there.

• What happens when confrontation collides with equally long-standing traditions of permitting hearsay?
• Ohio v. Roberts: a very controversial case (referenced in Crawford v. Washington.
  The state calls the defendant's daughter against her father at a preliminary hearing. Defense counsel tries to lead, helpfully, in cross-examination, but she's not going there.

  Now, at trial, she doesn't appear. But the court allows her testimony from the earlier hearing. Roberts challenges the admission of that testimony, for lack of confrontation.

  The prosecution has to show:

  1. Witness is unavailable (this includes the proper assertion of a privilege)
  2. Statement is reliable because eigher:
     • Firmly rooted hearsay exception; or
     • adequate indicia of reliability
  If a defendant wants to offer a hearsay statement against the state, this is not an issue because this is right of the accused.

  How do we know if a statement is reliable? Well, in this case it was made under oath, in a court proceeding; there was a verbatim transcript; there was some limited cross-examination.

  Why wasn't this just the former testimony exception? Because there was only pretty limited cross-examination-- the incentives to develop that testimony were different. Cross-examination is limited by statute at the preliminary hearing and also the battle isn't fully joined (they're just looking for probable cause).

  Still, it was good enough, and the statements came in.

  Note that by announcing this in a state court case, they're covering both state and federal cases: this is a strong rollout for this rule, then.

• Crawford
  Scalia didn't like Roberts from the get-go.

  Juries decide reliability. The constitutional right is about confrontation, not reliability.

  So now the rule is that the statement is admissible only if:

  1. The witness is unavailable
  2. The statement is either
     • Non-testimonial and meets a hearsay exception
     • Testimonial and there was a prior opportunity for cross-examination equivalent to what you'd get at trial (i.e., if you've already had confrontation, you're not entitled to it again).

  Crawford's wife invokes spousal privilege after previously giving some statements to police. Inadmissible because it's testimonial, and there was no prior opportunity for cross-examination.

27 October

• Hearings will be 11/8, 11/10. We will start as usual, but class will end at 6:00. 15 minute break. Then hearings at 6:15. Will finish roughly at 7:00. There will be teams. We'll have 1 direct and 1 cross. We are Monday. Generally there would be argument and a ruling at court; here the movant is just going to ask for a briefing schedule.
• Show that there's something in dispute, the resolution of which demands a hearing. "This is what I think I can prove." (i.e. defendant alleges X, Y, and Z; at a hearing, counsel believes the evidence will show, Jackson offers to prove that...). That will entitle me to relief under $RULE. Don't argue, and don't synthesize facts and law; don't analogize to other cases.
• End-up: wherefore, Jackson requests the court for $RELIEF, or in the alternative for a schedule for briefing.
• You forfeit your right to confrontation if you make the witness unavailable ("forfeiture by wrongdoing").
• Giles v. CA a post-Crawford case that deals with whether you forfeit your right to cross-examine the witness merely because you killed the witness, or does it need to be done with the intent of preventing the testimony. The answer is that it requires proof (by preponderance) of specific intent to make the witness unavailable. That's sort of uncharacteristically defense-friendly.
• MI v. Bryant: just argued 2 weeks ago... what do we do, post-Crawford about testimonial dying declarations? We shall see. That's the oldest and most primordial hearsay exception, of course.
• Melendez-Diaz
  Certifications from analysts at a state lab that the contents of the bags was cocaine. Are those testimonial? Yup.

  This is a huge practical issue, but almost not at all in WI. Nearly every drunk driving lab has breath and blood test evidence from the state hygiene lab; most criminal cases have something from the crime lab.

  In WI, by statute, you can offer a certified copy at the preliminary hearing (where there's no cross-examination). At trial, the analyst always appears (called by the state), unless the defense stipulates to the contents of the report. Lots of other states, for the sake of efficiency, just sent the reports as public records under seal (authenticated, good hearsay exception). But Crawford makes this practice unacceptable, even though it was way more convenient.