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Opening Arguments

The right to confront

The Sixth Amendment guarantees, among other things, that an accused person "shall enjoy the right . . . to be confronted with witnesses against him." The Supreme Court in 2004, in an opinion written by Justice Antonin Scalia, also applied that standard to "testimonial statements" in criminal trials, but it left unclear what would be considered "evidence," which does not require being able to cross-examine one's accuser, and what would be considered "testimony," which does. What about 911 calls? What about statements by a witness to police shortly after a crime? The court accepted two cases, one of them from Indiana, in an attempt to clear up the confusion. The decision, also written by Scalia, just came down today, and some mighty fine hairs are being split.

The U.S. Supreme Court ruled on Monday that a victim's emergency call to a 911 operator can be admitted as evidence, but crime scene statements to a police officer must face cross-examination.

In the ruling in two different cases, the justices clarified what evidence can be used at trial when the victim is unavailable to testify and is not subjected to cross-examination by the defendant.

In one of the cases, from Washington state, the Supreme Court agreed with the state Supreme Court that the function of a 911 call is not to "bear witness" but to seek help so it is not the "functional equivalent" of uncross-examined, in-court testimony. So 911 calls CAN be admitted, even if the person who made the call isn't in court to be questioned. In the Indiana case, the court disagreed with our Supreme Court, which had ruled that a statement given by a woman to police at the scene of the crime was "non-testimonial," since she was merely responding to factual inquiries by police. Not so, Scalia says today: "The sole purpose of the police questioning was to investigate a possible crime, and there was no emergency in progress." So witness statements are OUT, unless the witness is in court to be questioned.

These are interesting cases because they have resulted in some unusual allies and opponents. When I made some calls a few months ago, I found Ken Falk on the ICLY stressing the need to keep the confrontation clause sacrosanct, which was essentially the position taken by Scalia in the 2004 case. Allied on the other side were prosecuting attorneys and representatives of the Fort Wayne Women's Bureau, who wanted to see some leeway because of the difficulty in getting witnesses to testify in domestic violence cases.

The decision should also be a splash of cold water for people who wrote alarmingly last week about the court's "conservative shift" in a 5-4 decision (Scalia again) looking with more favor than in the past on no-knock police searches. Even if police err by going in no-knock while armed with a search warrarnt, suppressing the evidence is too high a penalty to pay. A one-vote, carefully worded opinion was no cause for worry that the court was going to turn over our civil liberties to police thuggery, and today's decision underscores that. It looks like the Roberts court is going to approach criminal-justice matters with as much nuanced language as previous courts.

UPDATE: State Rep.Win Moses, D-Fort Wayne, noting Indiana's new "Castle Bill," which says an individual "is justified in using reasonable force, including deadly force against another person if he or she believes someone is threatening their dwelling or motor vehicle," says he intends to introduce legislation requiring officers to knock before entering a residence, no matter what the Supreme Court says. The combination of Supreme Court and state actions, he says, has created a delicate situation that might get some officers shot.

I have to admit that his logic is impeccable. “There are citizens in my district and across Allen County who have guns,” Moses said.

Comments

Bob G.
Tue, 06/20/2006 - 9:18am

Just to hit on the Win Moses gig....

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