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Crawford Cert. Petitions

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Here are a couple of certiorari petitions to watch for those dealing with the aftermath of Crawford v. Washington, 541 U.S. 36 (2004).

Crawford indicated and Davis v. Washington confirmed "that one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation." 165 L.Ed.2d. 224, 244 (2006). One popular method of obtaining the absence of the witness is to murder her. But does the state have to prove not only that the defendant murdered the witness but that his specific intent was to prevent her from testifying? That is the issue in New Mexico v. Romero, 07-37. The cert. petition is here, courtesy of AAG Joel Jacobsen. As a practical matter, such proof could be extremely difficult. Motives of preventing testimony, retaliation for going the police, and whatever the motive was for the original act of violence could all be mixed. When the killer has multiple motives, how do you prove specific intent?

Another Crawford case to watch is Cage v. California, 07-5156. I don't have the cert. petition on this one yet. The Cal. Supreme opinion is here for now but will scroll off in about a month. Lisa Marie Cage is a mother who will never be mistaken for June Cleaver. She was convicted of aggravated assault for carving a long, deep gash in the face and neck of her son with a piece of glass. Cal. Supreme held that the son's statement to the emergency room doctor in response to the question "What happened?" was not testimonial. A statement to the investigating police officer was testimonial, but it was harmless due to being cumulative to the other statement.

Update: The cert. petition in Cage is here, courtesy of Gary Schons. Counsel for Cage has stated the question as the admissibility of the doctor's testimony rather than the harmlessness of the officer's testimony. Not the way I would have done it.

4 Comments

Is the admissibility of the out-of-court statements (i.e., because the defendant had witness killed) a Rule 104(a) or Rule 104(b) question?

Joel Jacobsen? The Joel Jacobsen?

If this name doesn't ring any bells, click on over to judgingcrimes, pronto...

Yes, one and the same. I notice he hasn't blogged on Romero, though, presumably to maintain separation of his personal-opinion blog from his official duties as advocate for the people of Nuevo Mexico.

He has a Crawford-related post on a couple of Michigan cases here.

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