Supreme Court Watch: Williams v. Illinois: Confrontation Clause – Pending Decisions Confrontation Clause: More Notice and Demand Rules? Supreme Court Watch Open Issue: Confrontation Clause – Resolving An Open Issue on the Scope Of Dying Declarations Circuit Split: Waiving An Objection to a Stipulation Under the Confrontation Clause Circuit Split: Admission Of Pre-Miranda Silence Circuit Split: Whether the Rule of Completeness Allows Inadmissible Evidence to be Admitted? More Judicial Criticism of the “Inextricable Intertwinement” Theory Rule Amendments: “Restyling” Federal Rules of Evidence Pending Rule Amendment: FRE 803(10) – Absence of Public Record 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.

On item 7., on how 404(b) is applied. This is an issue I frequently raise when the prosecution makes was is termed a ‘talismanic incantation,’ which lacks specificity to the offenses charged argument for admissibility.

Nearly every circuit has recognized the “inextricable intertwinement” theory (or “inextricably intertwined” doctrine). Several circuits have cautioned about admission of uncharged evidence in a case as part of the “inextricably intertwined” exception to FRE 404(b). Recently, this doctrine has come under increasing judicial criticism. . . . SeeUnited States v. Gorman, 613 F.3d 711 (7th Cir. 2010) (“[T]he inextricable intertwinement doctrine has since become overused, vague, and quite unhelpful. To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness. Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility.”)[.] Saltzburg, Martin and Capra, Federal Rules of Evidence Manual, Paragraph 404.02[12] (10th ed. 2012) (discussing issue at length and concluding, “The ‘inextricably intertwined’ exception substitutes a careful analysis with boilerplate jargon.”).

See e.g., United States v. Peterson, 20 M.J. 806 (N.M.C.M.R. 1985)(We abhor the “shotgun” application of rule 404(b) and will not accept the “talismanic incantation” of the words motive, intent, plan or design, modus operandi, etc., with nothing more.); United States v. Jenkins, 48 M.J. 594 (A. Ct. Crim. App. 1998)(It is not necessary “that relevant evidence fit snugly into a pigeon hole provided by Mil. R. Evid. 404(b).” Nevertheless, the profferer should delineate the theories of admissibility, as occurred here, and not simply render a talismanic incantation of all the bases listed in the rule, as often occurs.) And see United States v. Yammine, 69 M.J. 70 (C.A.A.F. 2010), in regard to Mil. R. Evid. 404(b) and 414. ARTICLE: The Use of Evidence of an Accused’s Uncharged Misconduct to Prove Mens Rea: The Doctrines Which Threaten to Engulf the Character Evidence Prohibition, 51 Ohio St. L.J. 575 (1990).

And don’t forget that even though evidence might initially be admissible under Mil. R. Evid. 404(b), you still need to have the judge balance admissibility under Mil. R. Evid. 403. See e.g. United States v. Ferguson, 29 M.J. 559 (A.F.C.M.R. 1989), pet. denied 32 M.J. 45 (C.M.A. 1990).

Here is a link to last years list.

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?

Here is a link to the appropriate documents on SCOTUSWiki. The petition was granted on 1 March 2010. So far there are two amici.

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: While the record establishes that the drug testing reports, as introduced into evidence by the prosecution, contained testimonial evidence (the cover memoranda of August 16), and the defense did not have the opportunity at trial to cross-examine the declarants of such testimonial evidence, (a) was the Confrontation Clause nevertheless satisfied by testimony from Dr. Papa? See, e.g., Pendergrass v. Indiana, 913 N.E.2d 703, 707-08 (Ind. 2009). But see, e.g., State v. Locklear, 681 S.E.2d 293, 304-05 (N.C. 2009); or (b) if Dr. Papa’s testimony did not itself satisfy the Confrontation Clause, was the introduction of testimonial evidence nevertheless harmless beyond a reasonable doubt under the circumstances of this case if he was qualified as, and testified as, an expert under M.R.E. 703 (noting that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied] need not be admissible in evidence in order for the opinion or inference to be admitted”)? Compare, e.g., United States v. Turner, 591 F.3d 928, 933-34 (7th Cir. 2010), and United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008), with United States v. Mejia (a.k.a. Little Chino), 545 F.3d 179, 197-98 (2d Cir. 2008). Appellant will file a brief on the above issues no later than thirty days after the date of this opinion. Appellee will file a brief no later than thirty days after the filing of Appellant’s brief. Appellant may file a reply no later than ten days after the filing of Appellee’s brief. If the government and defense appellate divisions of the other services file amicus curiae briefs on the above issues in support of a party, such briefs may be filed no later than ten days after that party has filed its brief. Pending receipt of the briefs, the case will remain on the docket for final decision.

United States v. Blazier, 68 M.J. 439, 443-44 (C.A.A.F. 2010).

The government filed its brief on the C.A.A.F. specified issues this week. NIMJ has filed an amicus brief (I have abstained on that as I was trial defense counsel), I believe NACDL may have filed an amicus, but I haven’t seen the filing.

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.

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).

STATEMENT OF THE CASE This Court held in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), that the prosecution violates the Confrontation Clause when it introduces forensic laboratory reports into evidence without affording the accused an opportunity to “‘be confronted with’ the analysts at trial.” Id. at 2532 (quoting Crawford v. Washington, 541 U.S. 36, 54 (2004)). This case raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports. In this case, a bare majority of the Indiana Supreme Court upheld the practice, deepening a square conflict of authority on the issue. The Indiana Supreme Court granted discretionary review. While the case was pending, this Court issued its decision in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), clarifying that forensic laboratory reports are testimonial under Crawford. Three months later, a bare majority of the Indiana Supreme Court affirmed the court of appeals, adopting yet another rationale to justify admitting Powers’ forensic reports without calling her to the stand. Specifically, the Indiana Supreme Court upheld the admission of Powers’ testimonial statements on the ground that “it [is] up to the prosecutors to choose among the many ways of proving up scientific results, as long as the way chosen feature[s] live witnesses.” App. 12a (citing Melendez-Diaz, 129 S. Ct. at 2532 n.1). The court noted that State introduced two live witnesses: Lisa Black, Powers’ supervisor, and Dr. Conneally, the prosecution’s genetics expert. In the Indiana Supreme Court’s view, this “sufficed for Sixth Amendment purposes.” App. 12a-13a. The dissent accused the majority of basing its reasoning on “certain isolated passages from the Melendez-Diaz opinion” that, “taken in context,” dictated the opposite result. App. 15a-16a. In the dissent’s view, Melendez Diaz held that “a defendant has a constitutional right to confront at the very least the analyst that actually conducts the tests.” App. 19a. The opportunity to cross-examine a supervisor is “no substitute for a jury’s first-hand observations of the analyst that performs a given procedure.” App. 19a.

The petition notes a growing and deeper split over the meaning of Melendez-Diaz. And notes for example that:

In the wake of Melendez-Diaz, two state supreme courts and one federal court of appeals have held that the Confrontation Clause prohibits what might be called “surrogate” forensic testimony – that is, introducing one forensic analyst’s testimonial statement through the in-court testimony of another. In direct contrast, three state high courts have held, based on the two distinct theories the Indiana appellate courts adopted below, that introducing one forensic analyst’s testimonial statement through the in-court testimony of another does not violate the Confrontation Clause. The post-Melendez-Diaz conflict concerning surrogate forensic testimony deepens a pre-existing split over whether, as a more general matter, testimonial statements of a nontestifying witness can be introduced through the in-court testimony of an expert witness.

To illustrate the reason why it is necessary to have the actual personnel involved in testing testifying, the petition uses an issue from California. I think we can think of situations in military labs – Hastis, USACIL and its DNA testing.

Surrogate witnesses fail to address – and may actually aggravate – the problems posed by an analyst’s potential fraud, incompetence, or flawed methodology. A recent case from California vividly illustrates the point. In People v. Dungo, 98 Cal. Rptr. 3d 702 (Cal. Ct. App. 2009), rev. granted (Cal. Dec. 2, 2009) the prosecution introduced an autopsy report to prove that a certain amount of time had elapsed before the victim’s death, a hotly contested issue at trial. The medical examiner who had authored the report, however, had since been fired. He had also been forced to resign “under a cloud” from another job, and was blacklisted by law enforcement in two more counties for falsifying his credentials. Id. at 704. Finally, the examiner had been known to base his conclusions on police reports instead of forensic methods. See People v. Beeler, 891 P.2d 153, 168 (Cal. 1995); Scott Smith, S.J. Pathologist Under Fire Over Questionable Past, THE RECORD, Jan. 7, 2007, available at http://www. recordnet.com/apps/pbcs.dll/article?AID=/20070107/A_NEWS/701070311#STS=g329z7h5.134t. In light of this problematic track record, the prosecution put the medical examiner’s supervisor on the stand instead of the examiner. As the supervisor explained during the preliminary hearing, “[t]he only reason they won’t use [the examiner himself] is because the law requires the District Attorney to provide this background information to each defense attorney for each case, and [the prosecutors] feel it becomes too awkward to make them easily try their cases.” Dungo, 98 Cal. Rptr. 3d at 708 (alterations in original). The California Court of Appeal held that this surrogate testimony violated Crawford, observing that the “prosecution’s intent” had been to “prevent[] the defense from exploring the possibility that the [medical examiner] lacked proper training or had poor judgment or from testing [his] ‘honesty, proficiency, and methodology.’” Id. at 714 (quoting Melendez-Diaz, 129 S. Ct. at 2538).

So what next for court-martial cases?

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).