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Bloggers Debate the Impact of Davis

Yesterday's Supreme Court decision in Davis v. Washington "represents a subtle retreat from the presumption of innocence," argues Norm Pattis at Crime & Federalism. In Davis, Justice Antonin Scalia wrote for a unanimous Supreme Court that a crime victim's 911 call was not "testimonial" and could be admitted into evidence, even if the caller was not available to appear in court and be cross-examined. A core problem with the ruling, says Pattis, is that the court required no evidence of the witness's unavailability, instead accepting the broad proposition that domestic violence victims are often afraid to appear in court.

"What Scalia has done was substituted speculation about why the victim was not available for proof that a defendant caused the victim to be unavailable. He did so at the expense of the presumption of innocence and at the behest of a public interest group claiming special rules of evidence for victims of some crimes."

If Pattis sees the decision as a subtle retreat, the lawyer who lost the case says that he does not believe the opinion "necessarily portends a seriously wrong turn in the law." Jeffrey L. Fisher, who argued the case on behalf of petitioner Adrian Davis, writes at SCOTUSblog that the decision's practical impact may be less onerous  for criminal defendants than might appear from Scalia's theoretical discussion.

Fisher notes that the court's 2004 ruling Crawford v. Washington, that testimonial statements of absent witnesses ordinarily may not be introduced, defined the outer boundaries of "testimonial," but "left the status of a great mass of statements unresolved." Davis, if nothing else, defines new boundaries, Fisher says. While the court concludes that the 911 call is not testimonial, it rules that a police investigatory interview in the companion Hammon case is. Fisher reads this to conclude "that the Court thinks most of the statements in between Davis and Hammon are testimonial."

"I think that, fairly read, the lower courts should take away from today’s opinion that the Court is serious about the right to confrontation and that statements describing past incidents to law enforcement agents cannot serve as a substitute for live testimony at criminal trials."

Fisher's post at SCOTUSblog is one of several comments from guest contributors as part of a blog-symposium on the Davis case.

Posted by Robert J. Ambrogi on June 20, 2006 at 05:23 PM | Permalink | Comments (0)


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