Recent Articles

Brief in Opposition in Briscoe

August 13, 2008 14:56

The Commonwealth has filed its Brief in Opposition in Briscoe and Cypress v. Virginia, the case in which I filed a petition challenging Virginia's statute shifting to the accused the burden of producing as a live witness the author of a certificate of forensic laboratory results. You can read it...

Reflections on Giles, Part 4: The Alito and Thomas opinions

August 12, 2008 19:49

Justice Thomas wrote a brief concurrence in Giles expressing the view that the statement at issue – made by the victim to a responding officer after an alleged assault – was not testimonial in nature. He regarded it as indistinguishable from the statement made to a responding officer in Hammon v. In...

No confrontation issue if the statement isn’t even offered.

July 18, 2008 16:11

That seems obvious enough, but the point arose in an interesting context in United States v. Tucker (8th Cir. Jul. 17, 2008). Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the...

Reflection on Giles, Part 3: What Does It Mean?

July 02, 2008 20:43

The accused has intentionally engaged in serious wrongful conduct that has in fact caused the victim to be unavailable as a witness at trial. What state of mind on the part of the accused with respect to that unavailability will support a finding of forfeiture under Giles? There is some ambiguity...

Reflections on Giles, Part 2: Is Giles bad for defendants?

June 30, 2008 14:26

On its surface, Giles appears to be a major victory for defendants. I am not sure that will prove to be right over the long run.1. The Giles test – however it develops – may turn out to be rather easily satisfied.We’ll have to see over time how the lower courts, and ultimately the Supreme Court, r...

Reflections on Giles, Part 1: History, Dying Declarations, and Forfeiture

June 27, 2008 05:39

As readers of this blog will recognize, I am obviously very disappointed by the result in Giles. It has unfortunate consequences for the theory of the Confrontation Clause. It will complicate litigation. And it will lead to some bad results – though to what extent it will do so is unclear, d...

Giles vacated and remanded

June 25, 2008 15:00

The Supreme Court decided Giles v. California today. You can see the opinion by clicking here. Giles won; the decision is vacated and remanded, and the forfeiture theory does not apply. I have not had time yet to read the opinion, and so can't say much more (except that I think this is a veyr...

Top-side amicus briefs in Melendez-Diaz (updated, June 24, pm)

June 24, 2008 18:19

Yesterday was the deadline for amicus briefs in support of the petitioner in Melendez-Diaz v. Massachusetts, No. 07-591, the case raising the issue of whether forensic laboratory reports are testimonial within the meaning of the Confrontation Clause. I have filed a brief, which you can see by...

Petitioner's brief in Melendez-Diaz

June 19, 2008 21:29

While we wait for the Supreme Court to decide Giles, Melendez-Diaz v. Massachusetts, the case that will decide whether forensic lab reports are testimonial, is moving ahead. To see the petitioner's main brief on the merits, filed this past Monday, click here. Jeff Fisher is lead counsel for the...

Cert petition in a burden-shifting case

May 30, 2008 17:43

In several posts, I have discussed, and railed against, statutes that shift to the accused the burden of producing a prosecution witness, typically the author of a lab report. Yesterday, I filed a cert petition raising this issue, and seeking review of the decision of the Supreme Court of Virginia...