Amicus Curiae Brief — Davis v. Washington

@O YD | repi- 2m |

Nos. 05-5224 and 05-5705 OFFICE OF THE CLERK

IN THE

Suprenie Court of the United States

HERSHEL HAMMON,

Petitioner,

@ Vy. o

INDIANA,

Respondent.

ADRIAN MARTELL DAVIS,

Petitioner, .

o Vv. o

WASHINGTON,

Respondent.

ON WRITS OF CERTIORARI TO THE SUPREME COURTS OF

INDIANA AND WASHINGTON

BRIEF OF AMICUS CURIAE

THE NATIONAL DISTRICT ATTORNEYS ASSOCIATION

IN SUPPORT OF RESPONDENTS

rrr xereeere rere ree nearer eeneee ee nese eee eer cr TI TE I TD DINE SEITE EEE

Paul A. Loghi

State’s Attorney,

Winnebago County, Illinois

President,

National Distnct Attorneys Association

Mark Ryan Dwyer — Counsel of Record

One Hogan Place

David M. Cohn New. York, New York 10013

Susan Axelrod (212) 335-9000

Joshua A. Engel

Of Counsel

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......0.00.........00.cceeceeeeeeeeeeeees i

INTEREST OF THE AMICUS CURIAE........................ |

SUMMARY OF ARGUMENT ...000000o eects 3

TTT achvcscsetcsiipticiseisiuscintincgphaiia lige leaiainieidebtindueudaneneebiahine 5

Part One: Supreme Court Pronouncements

Regarding the Core Confrontation Right and its

Relationship to the Hearsay Rulle.....................000....0...... 5

Part Two: The Supreme Court Returns to the Core

Principles of the Confrontation Clause in

Crawford v. Washington .........0.....0....000:ccccceceeeeeeteeeees 14

Part Three: The Statements in the Present Cases

are not "Testimonial," and Due Process should

be the Ultimate Test of the Propriety of their

Introduction at Triak sooo... cccccecccccceccccccececeeeeeeee 25

IIT shsncninstsindencibysticieeduniiessiniptanitinetenetion dciaiiteeeds 29

TABLE OF AUTHORITIES

FEDERAL CASES

Barber v. Page, 390 U.S. 719 (1968) ...cccccceccssscssesseeseeenseen 10

Berger v. California, 393 U.S. 314 (1969)... 10

Brookhart v. Janis, 384 U.S. | (1966)...............cccceeeeeeeeeeees 10

Bruton v. United States, 391 U.S. 123 (1968)... 10

California v. Green, 399 U.S. 149 (1970)... ee 9,10

Chambers v. Mississippi, 410 U.S. 284 (1973) .....::ccssc0000 27

Crawford v. Washington, 541 U.S. 36 (2004).......... passim

Delaney v. United States, 263 U.S. 586 (1924)..........0...... 11

Douglas v. Alabama, 380 U.S. 415 (1965)... 10

Dowdell v. United States, 221 U.S. 325 (1911)............... 7,8

Dutton v. Evans, 400 U.S. 74 (1970)... eee 9,10, 11

Estelle v. McGuire, 502 U.S. 62 (1991) 0.0.0... ee ceeee 27

Idaho v. Wright, SE A. BE GI escinencccnssentccionn 12, 13

Kirby v. United States, 174 U.S. 47 (1899) ...cccccccecssseseeoee 7

Lec v. Illinois, 476 U.S. 530 (1986) oo... eee eeeeeeceeees 12

Lilly v. Virginia, 527 U.S. 116 (1999)... oe. 12,13, 14

ul

Mancusi v. Stubbs, 408 U.S. 204 (1972)... eee 10

Mattox v. United States, 156 U.S. 237 (1895).....7, 8, 10, 15

Motes v. United States, 178 U.S. 458 (1900) ......... oa

Ohio v. Roberts, 448 U.S. 56 (1980)... ee. passim

Pointer v. Texas, 380 U.S. 400 (1965)...............0.00008. 6,9, 10

Reynolds v. United States, 98 U.S. 145 (1878) ............... 6,7

Roberts v. Russell, 392 U.S. 293 (1968)............ccceceeeeeee ee 10

Snyder v. Massachusetts, 291 U.S. 97 (1934) 0000.02... 7,8

Spencer v. Texas, 385 U.S. 554 (1967) ....... eee eeeeeeeeeeee 28

United States v. Inadi, 475 U.S. 387 (1986)................ 12, 13

White v. Illinois, 502 U.S. 346 (1992)... 12, 13, 16

STATE CASES

People v. Orpin, 8 Misc. 3d 768,

796 N.Y.S.2d 512 (Justice Court, Town of

Irondequoit, Monroe Co. 2005) .0.0.........cecececceeeeeeseeeceenseees 24

People v. Nrene, 8 Misc. 3d 649, 798 N.Y.S.2d 891

(Crim. Ct. N.Y. REE SERRE SI ae ear ny aN a 24

11

MISCELLANEOUS

Amar, Confrontation Clause First Principles: A

Reply to Professor Friedman, 86 Geo. L.J. 1045

REE TER Ne cree oF ae waa ee ke Chee 6,14

Berger, The Deconstitutionalization of the

Confrontation Clause: A Proposal for a

Prosecutorial Restraint Model, 76 Minn. L. Rev.

re ee cctaceectsvinieiesubiidnissneimidonaseeiiiadiediamecime enemas 23

Friedman, Confrontation: The Search for Basic

Principles, 86 Geo. L.J. 1011 (1998) wo... cece 14

Wright & Graham, Federal Practice and Procedure:

UN CONTE sttstinniesictsicininitsistinieienindeeeaniaen 15

iV

In The

SUPREME COURT OF THE UNITED STATES

Nos. 05-5224 and 05-5705

HERSHEL HAMMON,

Petitioner,

---V eee

INDIANA,

Respondent.

ADRIAN MARTEL DAVIS,

Petitioner,

o-V .---

WASHINGTON,

Respondent.

On Writs of Certiorari to the Supreme Courts of

Indiana and Washington

BRIEF OF AMICUS CURIAE

NATIONAL DISTRICT ATTORNEYS

ASSOCIATION IN SUPPORT OF RESPONDENTS

INTEREST OF THE AMICUS CURIAE

The National District Attorneys Association

("NDAA")' is a nonprofit corporation and the sole national

' Accompanying this brief are letters of consent to its

filing. No counsel for any party authored any part of this brief,

and no person or entity, other than amicus, has made a monetary

contribution to the preparation or submission of this bref.

membership organization representing local prosecuting

attorneys in the United States. Since its founding in 1950,

NDAA's programs of education and training, publications,

and amicus curiae activity have carried out its guiding

purpose of serving as "the Voice of America's Prosecutors

and To Support Their Efforts to Protect the Rights and

Safety of the People." A

The NDAA and its members have a compelling

interest in the outcome of these appeals Se:ause of the

severe damage a reversal] in either case could do daily in

innumerable prosecutions in courthouses across this nation.

Put simply, the positions advanced by petitioners would

have an enormous and negative impact on the ability of

prosecutors to do their jobs, and of the courts to do justice.

As the facts in Hammon and Davis show, great harm would

be done in domestic violence prosecutions, in which

victims frequently will not appear in court. Should

informal statements taken in the immediate wake of attacks

on domestic violence victims be excluded, as petitioners

ask, junes would never hear the reports which, very often,

are the most trustworthy proof of serious crimes.

And the damage would by no means be limited to

domestic violence cases. Elderly victims, children, and the

socially powerless frequently are unable or unwilling to

appear in court. A rule disallowing statements that

traditionally have been admissible under hearsay

exceptions such as the one for excited utterances would

offer a free pass to many of those who prey on such

victims. Nor-are cases involving vulnerable victims the

only ones at stake. For centuries the courts have admitted

hearsay in all kinds of cnminal cases, on behalf of the

prosecution and the defense, because the wisdom of the

5

common law has demonstrated that hearsay exceptions

promote just results.

Critically, there is no constitutional justification for

the harmful results that petitioners seek. The Confrontation

Clause was designed to preclude “trial by affidavit." A trial

by affidavit is one in which the prosecution makes its case

with a declaration (1) created in a formal out-of-court

examination, by a government agent, (2) of a declarant

aware that the statement was intended for use at a tnal.

NDAA asks this Court to return to this understanding of the

Confrontation Clause and make clear that, subject to due

process limitations, states are free to regulate the

admissibility of non-testimonial hearsay statements.

SUMMARY OF ARGUMENT

The present cases require this Court to determine

whether the statements at issue are "testimonial" hearsay

barred by the Confrontation Clause of the Sixth

Amendment. The petitioners in Hammon v. Indiana and

Davis v. Washington both take a wrong turn in analyzing

the meaning of “testimonial.” In that regard, petitioner

Davis incorrectly posits that the Confrontation Clause

forbids the admission of any hearsay that does not fall

within a hearsay exception recognized before 1791 (see

Davis Brief: 11-12, 22-34). This Court has never --

including in Crawford v. Washington — suggested that the

Confrontation Clause froze hearsay law in 1791.

* The brief of petitioner Hammon sometimes appears to

endorse that position as well (sec Hammon Brief: 22, 28).

‘ws

Petitioner Hammon puts forward an equally flawed

theory, finding "testimonial" any statement that transmits to

a known public official “information for use in

investigation or prosecution of crime" (Hammon Brief: 13).

In Hammon's view, it makes no difference whcther the

officer or the declarant intended that the information would

be used at a trial; nor does it matter why the information

was transmitted or whether the officer was involved in

preparing a case for trial (see Hammon Brief: 7, 10, 12-14,

18, 20-21, 41). In fact, Hammon would extend the.

meaning of “testimonial” to include many statements made

to civilians (see id. at 11, 15 n 11, 17). This expansive

view of the Confrontation Clause ignores the Framers’

view: the clause was designed to serve the limited purpose

of protecting against the common-law evil of "tral by

affidavit.”

As a review of this Court's decisions makes plain,

the Confrontation Clause bars prosecutors from collecting

formalized statements from witnesses and then using those

statements at tnal, without affording the defendant an

opportunity for cross-examination. Beyond that core

purpose, the Founders left the states free to develop hearsay

exceptions, just as they are free to develop other aspects of

evidentiary law and criminal procedure, in a manner

consistent with due process. Otherwise, the Confrontation

Clause will become a _ meta-hearsay rule imposed,

unjustifiably, upon the states by the federal courts.

The argument of amicus NDAA consists of three

parts. Part One examines the historical pronouncements of

this Court to demonstrate that the Framers intended that the

Confrontation Clause serve a limited purpose and did not

seek to freeze hearsay law in 1791. Part Two discusses this

Court's recent decision in Crawford v. Washington, 541

4

U.S. 36 (2004), which focused its analysis on the core

purpose of the clause and rejected the view that virtually all

hearsay is subject to Sixth Amendment scrutiny.

Specifically, as Crawford explained, the Confrontation

Clause imposes close constitutional scrutiny only on

"testimonial" hearsay — that is, formal statements of

witnesses created for use at trial, or their close equivalents.

Part Three addresses the regulations, apart from the

Confrontation Clause, which govern”™ non-testimonial

hearsay.

ARGUMENT

Part One: Supreme Court Pronouncements

Regarding the Core Confrontation Right and its

Relationship to the Hearsay Rule

A. The Text of the Confrontation Clause

The Sixth Amendment provides, in pertinent part,

that "[iJn all criminal prosecutions, the accused shall enjoy

the nght . . . to be confronted with the witnesses against

him” (emphasis added). It is undisputed that this clause

permits a criminal defendant to confront and cross-examine

any witness who gives live testimony at tnal. However,

from the text alone, it is not clear whether the clause bars

the prosecution from introducing hearsay statements of

declarants who do not appear at trial. As this Court noted

in Crawford, “witnesses against" could be understood to

mean only "those who actually testify at trial." Crawford,

541 U.S. at 42-43. If that definition were adopted, a

hearsay declarant would not qualify as a "witness" within

the meaning of the Confrontation Clause, just as a hearsay

declarant is not ordinarily considered a “witness” within the

5

~

meaning of the compulsory process clause of the Sixth

Amendment or the self-incrimination clause of the Fifth

Amendment. See Amar, Confrontation Clause First

Principles: A Reply to Professc " Fnedman, 86 Geo. L.J.

1045, 1047 (1998). Alternatively, "witnesses against”

could be interpreted to mean "those whose statements are

offered at tral," which would encompass all hearsay

declarants. See Crawford, 541 U.S. at 43. Or, perhaps, the

solution is "something in-between." Id.

B. Supreme Court Interpretations of the Confrontation

Clause Prior To Ohio v. Roberts

The Confrontation Clause was not held applicable

to the states until 1965. See Pointer v. Texas, 380 U.S. 400

(1965). In this Court's earlier decisions, few controversies

arose regarding the Sixth Amendment right of

confrontation, and the clause had little impact on the

conduct of criminal trials. In fact, this Court did not

consider whether the Confrontation Clause might bar

admission of out-of-court statements at criminal trials until

Reynolds v. United States, 98 U.S. 145 (1878), which was

decided nearly 90 years after the adoption of the Bill of

Rights.’ And, when faced with that question, this Court

adopted a circumscribed view that the confrontation right

was grounded in its history and was a response to grave

abuses that occurred at common law.

* In Reynolds, this Court upheld the admission of an

unavailable witness's prior testimony, because the defendant had

an Opportunity to cross-examine the witness at the prior trial and,

also, the defendant was responsible for the witness's failure to

appear. Sec id. at 159-61.

In particular, this Court's earliest decisions reveal

that the "primary object" of the provision was "to prevent

depositions or ex parte affidavits, such as were sometimes

admitted in civil cases, being used against the prisoner in

lieu of a personal examination and cross-examination of the

witness." Mattox _v. United States, 156 U.S. 237, 242

(1895); see aiso Snyder v. Massachusetts, 291 U.S. 97, 107

(1934); Dowdell v. United States, 221 U.S. 325, 330

(1911). Consistent with that purpose, many of the early

Confrontation Clause disputes involved efforts by the

prosecution to introduce formalized documents or the pnor

sworn statements of nontestifying witnesses. See, e.g.,

Dowdell, 221 U.S. at 328-30 (certified record of prior court

proceedings); Motes v. United States, 178 U.S. 458, 470-74

(1900) (testimony at a "preliminary trial"); Kirby v. United

States, 174 U.S. 47, 49-50, 53-54 (1899) (guilty pleas of

accomplices); Mattox, 156 U.S. at 240-43 (prior swom

testimony of deceased witness); Reynolds v. United States,

98 U.S. 145, 158-61 (1878) (testimony at prior trial)."

To be sure, inis Court realized that the confrontation

nght might sometimes overlap with common law hearsay

prohibitions. For instance, in Mattox, the Court discussed

in dicta whether the Confrontation Clause batred admission

* The admission of formalized statements does not

necessari'y constitute a violation of the Confrontation Clause if

the defendant had a prior opportunity to confront and cross-

examine the witness- See Mattox, 156 U.S. at 240-43 (no error

in admission of former testimony of deceased witness, whom the

defendant had cross-examined at a prior trial: "the nght of cross-

examination having once been exercised, 1t was no hardship

upon the defendant to allow the testimony of the deceased

witness to be read").

of dying declarations, concluding that such statements were

admissible under a longstanding common-law exception.

See Mattox, 156 U.S. at 243-44; see also Dowdell, 221

U.S. at 330.° But critically, not one of this Court's early

cases held that the Confrontation Clause barred the

admission of statements that lacked the formal trappings of

affidavits, depositions, prior sworm testimony, or the like.

Further, in its early decisions, this Court refused to

expand the confrontation right beyond its core if doing so

would interfere with state court procédures and evidentiary

rules. For instance, in Snyder v. Massachusetts, supra, 291

U.S. at 102-22, this Court (per Justice Cardozo) rejected the

defendant's argument that the state court violated his

confrontation rights by permitting the jury to view the

crime scene in the defendant's absence. Assuming without

deciding that the Fourteenth Amendment made the

Confrontation Clause applicable to the states, see id. at 106,

Justice Cardozo observed that a state court procedure "does

not run foul of the Fourteenth Amendment because another

method may seem to our thinking to be fairer or wiser or to

give a surer promise of protection to the prisoner at the

bar." Id. at 105. This Court explained that there had

always been "recognized exceptions” to the "privilege of

confrontation," such as dying declarations. Id. at 107. The

Court added that the "exceptions are not even static, but

may be enlarged from time to time if there is no material

departure from the reason of the general rule." Id.

Similarly, the Court noted in Dowdell that the

Confrontation Clause did not bar admission of documentary

evidence used to prove collateral facts, because such evidence

had been admissible at common law. See Dowdell, 221 U.S. at

330.

As noted, in 1965, Pointer held that the

Confrontation Clause is applicable to the states. See

Pointer, 380 U.S. at 403. After Pointer, this Court

continued to make clear that the clause had not

"constitutionalized" the general, common-law restrictions

on hearsay. For instance, in California v. Green, 399 US.

149 (1970), this Court held that the defendant's

confrontation rights were not violated by a Califorma

hearsay rule which, contravening the "orthodox" common

law rule, allowed admission of prior inconsistent statements

for their truth. See id. at 153-64. While noting that the

Confrontation Clause and hearsay rules sometimes "protect

similar values," this Court stated pointedly that the clause

does not represent "a codification of the rules of hearsay

and their exceptions as they existed historically at common

law." Id. at 155. On the contrary, “merely because

evidence is admitted in violation of a long-established

hearsay rule does not lead to the automatic conclusion that

confrontation rights have been denied." Id. at 156.

Notably, im concurrence, Chief Justice Burger

"“emphasize[d] the importance of allowing the States to

experiment and innovate." Id. at 171. Justice Harlan, too,

observed that the Confrontation Clause protects against

"flagrant abuses" and does not "ordain common law rules

of evidence with constitutional sanction." Id, at 179.

\

In the same vein, this Court held in Dutton v.

Evans, 400 U.S. 74 (1970), that the Confrontation Clause

did not prevent Georgia from adopting a hearsay rule under

which coconspirator statements were admitted more

liberally than under federal law. This Court emphasized

that the relatively limited federal hearsay exception was "a

product, not of the Sixth Amendment,” but of other policy

concems. Id. at 82. Moreover, the defendant's challenge to

9

the Georgia rule did not fall within the core of the

confrontation nght, because it did not involve, for instance,

"a confession made in the coercive atmosphere of official

interrogation" or a "wholesale denial of cross-

examination.” Id. at 87. Likewise, in concurrence, Justice

Harlan observed that it was not the “core purpose" of the

Confrontation Clause to "prevent overly broad exceptions

to the hearsay rule," because "the clause is simply not well

designed for taking into account the numerous factors that

must be weighed in passing on the appropriateness of rules

of evidence." Id. at 94, 96.

Underpinning the notion that the Confrontation

Clause served a limited, core purpose, nearly all of this

Court's confrontation cases from the era of Pointer, Dutton,

and Green -- like the earlier cases from the Mattox era -

prohibited the introduction only of formal statements akin

to affidavits or depositions, such as prior swom testimony

or confessions obtained as a result of police interrogation.

See, e.g., Mancusi v. Stubbs, 408 U.S. 204, 213-16 (1972)

(pnor testimony); Green, 399 U.S. at 151-52 (preliminary

hearing testimony and inculpatory statement to the police);

Roberts _v._ Russell, 392 U.S. 293, 293-95 (1968)

(codefendant's confession); Bruton v. United States, 391

U.S. 123, 126-28 and n. 3 (1968) (same); Berger v.

California, 393 U.S. 314 (1969) (preliminary hearing

testimony); Barber v. Page, 390 U.S. 719, 720-25 (1968)

(same); Brookhart v. Janis, 384 US. 1, 4 (1966)

(codefendant's confession); Douglas v. Alabama, 380 US.

415, 416-20 (1965) (same); Pointer, 380 U.S. at 401-08

(preliminary hearing testimony). In fact, pnior to 1980, this

Court heard hardly any cases in which defendants alleged

that the admission of non-formalized hearsay statements

violated their confrontation nghts. And, when faced with

such claims, this Court rejected them out of hand. Sce

10

Dutton, 400 U.S. at 76-90 (statement of coconspirator),;

Delaney v. United States, 263 U.S. 586, 590 (1924) (same).

C. Ohio v. Roberts and the "Constitutionalization" of

Hearsay Law

This Court charted a new course in Ohio v. Roberts,

448 U.S. 56 (1980), subjecting every hearsay statement

admitted at a criminal tral to Confrontation Clause

scrutiny. Notably, the contested evidence in Roberts -- a

witness's sworn testimony at a preliminary hearing, see id.

at 58-59 -- fell within the core class of statements to which

the Confrontation Clause had always been applied. Hence,

the Court in Roberts had no need to consider whether the

Confrontation Clause applied to all hearsay. And notably,

the Roberts Court expressed no desire to "map out a

theory" of confrontation that "would determine the validity

of all hearsay . . . exceptions.” Id. at 64-65 (internal

quotations omitted). Nevertheless, seeking a general

standard to reconcile the Confrontation Clause and the

hearsay rule, this Court held that the prosecution could not

"normally" introduce the hearsay statement of a

nontestifying declarant without first demonstrating the

declarant’s unavailability. Id. at 66. Even then, the

statement was admissible only if it fell within a "firmly

rooted" hearsay exception or bore other "particularized

guarantees of trustworthiness.” Id.°

* In Roberts, the Court held that admission of the

witness's preliminary hearing testimony did not violate the

defendant's confrontation rights, because the hearing testimony

bore sufficient indicia of reliability. See Roberts, 448 U.S. at 70-

74. The Court eschewed a resolution more compatible with the

traditional interpretation of the clause: that the defendant's

(continued .. .)

11

Significantly, even while applying the far-reaching

Roberts standard, this Court abided generally by the core

principles of the Confrontation Clause. That is, the Court

held formalized hearsay accusations, including statements

made during police-arranged interrogations, inadmissible

under the clause and permitted the admission of less-than-

formal declarations. Compare Lilly v. Virginia, 527 U.S.

116, 120-21, 127-39 (1999) (holding that admission of

accomplice's confession to the police, which incriminated

defendant, violated defendant's confrontation nghts); Idaho

v. Wright, 497 U.S. 805 (1990) (state court violated

defendant's confrontation rights by admitting statements

made by child victim to pediatrician during examination of

victim arranged by police and child welfare officials); and

Lee v. Illinois, 476 U.S. 530, 546-47 (1986) (codefendant's

confession to the police was improperly admitted at

defendant's trial); with White v. Illinois, 502 U.S. 346, 348-

58 (1992) (holding that the Confrontation Clause did not

bar admission of excited statements made by the child

victim to her babysitter, her mother, and a police officer

who arrived on the scene); and United States v. Inadi, 475

U.S. 387, 388-400 (1986) (holding that the Confrontation

Clause did not require the prosecutor to prove

unavailability before introducing the statements of a

nontestifying coconspirator).

Moreover, even while the Roberts standard

prevailed, this Court acknowledged that the Confrontation

Clause should not be viewed as a "general rule prohibiting

confrontation rights were not violated because he had an

opportunity to examine the witness at the preliminary hearing.

—s — i

12

~

the admission of hearsay statements.” Wnght, 497 U:S. at

814; see also White, 502 U.S. at 357 (declining to interpret

the Confrontation Clause to work a "wholesale revision of

the laws of evidence") (internal quotations omitted); Inadi,

475 U.S. at 392 ("Roberts itself disclaimed any intention of

proposing a general answer to the many difficult questions

arising out of the relationship between the Confrontation

Clause and hearsay"); cf. Lilly, 527 U.S. at 137

(analogizing accomplice confession at issue to "the core

concerns of the old ex parte affidavit practice").

The attempt of Roberts to "steer a middle course,"

White, 502 U.S. at 352 (quoting Roberts, 448 U.S. at 68 n.

9), ultimately failed. Almost from its inception, Justices

and commentators criticized Roberts for abandoning a

century of precedents regarding the core meaning of the

Confrontation Clause. Concurring in White, Justice

Thomas (joined by Justice Scalia) argued that the Roberts

standard "complicated and confused the relationship

between the constitutional nght of confrontation and the

hearsay rules of evidence" by assuming that "all hearsay

declarants are ‘witnesses against’ a defendant within the

meaning of the Clause" -- "an assumption that is neither

warranted nor supported by the history or text" of the Sixth

Amendment. White, 502 U.S. at 358-59 (Thomas, J.,

concurring) (emphasis in original). Justice Thomas

- advocated a return to the historical interpretation that "the

Confrontation Clause is implicated by _ extrajudicial

statements only insofar as they are contained in formalized

testimonial materials, such as affidavits, depositions, prior

testimony, or confessions." Id. at 365; see also Lilly, 527

U.S. at 143-44 (Thomas, J., concurring).

Similarly, in Lilly, Justice Breyer argued that the

effort to "tie the [Confrontation] Clause so directly to the

13

hearsay rule" was "of fairly recent vintage" and that the

reliability standard of Roberts was "too narrow and too

broad" when viewed in light of the "traditional purposes” of

the clause. Lilly, 527 US. at 140-41 (Breyer, J.,

concurting). Specifically, Justice Breyer explained that the

reliability rule was too broad, because it "would make a

constitutional issue out of the admission of any relevant

hearsay statement," even one "made long before the crime

occurred and without relation to the prospect of a future

trial." Id. at 142 (emphasis in original). In addition, the

reliability rule was too narrow, because it would permit

admission of "testimony" prepared out of court so long as it

fell within a "well-recognized hearsay rule exception." Id.

at 141. Justice Breyer also questioned the notion, implicit

in the Roberts standard, that the Sixth Amendment inquiry

should focus on the "trustworthiness" of the statement at

issue. See id. at 142. Justice Breyer predicted that, in a

future case, it might be necessary to "reexamine the current

connection between the Confrontation Clause and the

hearsay rule." Id.; see also Amar, Confrontation Clause

First Principles. 86 Geo. L.J. at 1048-49; Fredman,

Confrontation: The Search for Basic Principles, 86 Geo.

L.J. 1011 (1998).

Part Two: The Supreme Court Returns to the Core

Principles of the Confrontation Clause in

Crawford v. Washington

A. Crawford Overrules Roberts and Restores the

Understanding that the Confrontation Clause Is Aimed

at Only a Limited Class of Hearsay.

In Crawford, supra, this Court reyected the Roberts

analysis and retumed to an _ understanding of the

Confrontation Clause consistent with its jumsprudence for

14

the 100 years prior to Roberts. This Court held that

Roberts had wrongly departed from the historical focus of

the Confrontation Clause, which was to prevent the “use of

ex parte examinations as evidence against the accused."

Crawford, 541 U.S. at 50. This Court explained that the

confrontation right was designed to redress flagrant abuses

that occurred in civil-law practice and under the Marian

statutes in 16"- and 17""-ceniury England, and particularly

during the treason trial of Sir Walter Raleigh. See id. at 43-

47. A confrontation right restricting the prosecutorial use

of ex parte examinations arose as a result. See id. at 45-47.

Further, the text of the Confrontation Clause, which

guarantees an accused the right to confront the "witnesses"

against him, Crawford, 541 U.S. at 51, demonstrates its

focus. “Witnesses,” this Court noted, are "those who ‘bear

testimony.” Id. (quoting | N. Webster, An Amencan

Dictionary of the English Language (1828) (emphasis

added)). Hence. the Confrontation Clause was designed to

prevent "admission of testimonial statements of a witness

who did not appear at trial." Id. at 53-54 (emphasis

added).' The clause was not, as Roberts suggested, aimed

at all hearsay. Id. at 51 ("not all hearsay implicates the

Sixth Amendment's core concerns"). Crawford plainly

Stated that Roberts had reached too far in subjecting all

hearsay to "close constitutional scrutiny." Crawford, 541

U.S. at 60; see also Wright & Graham, Federal Practice

* Consistent with the confrontation nght. the prosecution

may introduce even a testimonial statement of a nontestifying

witness if the witness 1s unavailable and the defendant had a

prior opportunity to cross-examine him. Sce id. at 54: accord

Mattox, 156 U.S. at 240-43.

15 ;

and Procedure: Evidence §§ 6343, 6344, pp. 326-30, 345,

393-94 (1997).

Significantly, Crawford cited this Court's pre-

Roberts precedents with approval, finding them “largely

consistent" with the principles underlying the

Confrontation Clause. See Crawford, 541 U.S. at 57.

Crawford also ‘approved the “outcomes,” if not the

reasoning, of this Court's decisions during the Roberts era,

Stating that the results "hew[ed] closcly to the traditional

line." Id. at 58." The Crawford Court adopted a new

standard not in order to overrule precedents, but to guide

lower courts, which had received little meaningful direction

from the "amorphous" Roberts reliability rule. See id. at

63-64. In short, Crawford admonished lower courts to

enforce core confrontation principles strictly and, when

faced with cases outside the core, to forestall the

"constitutionalization" of ordinary hearsay rules.

All of this explodes the central theme of the brief of

petitioner Davis. As noted, Davis’ argument assumes that

the Confrontation Clause is a "super" codification of all

hearsay rules extant in 1791. Thus, according to Davis, if

there was no hearsay exception for "excited utterances” in

* This Court found possible “tension” in only one of the

Roberts-era cases, White v. Illinois. supra, noting that the child

victim's statement to the investigating officer in that case might

not have been admissible under the historical understanding of

the confrontation nght. See id. at 58 n. 8. NDAA submuts that,

under a proper understanding of what hearsay 1s “testimonial,”

there is no “tension” at all; the victim's statement to the

investigating officer was not testimonial, and thus was properly

received. See Part Two (B) and Part Three. infra.

16

1791, the Confrontation Clause bars them. But, as

explained in Crawford and in this Court's pre-Roberts

decisions, the clause is aimed at only a limited class of

hearsay statements: those which are "testimonial." Hence,

the constitutional inquiry does not tum on whether excited

utterances were admissible. under a recognized hearsay

exception in 1791 (or upon the adoption of the Fourteenth

Amendment in 1868). Instead, the cntical question is

whether a particular utterance is "testimonial" within the

meaning of the clause.”

” Petitioner Davis would find support for his position in

a footnote in Crawford which discusses dying declarations, 541

U.S. at 56 n. 6, but he msunderstands that footnote. In it, the

Court notes that all dying declarations arguably are admissible,

because an exception to the hearsay rule for dying declarations

was recognized before 1791. Petitioner Davis believes that this

amounts to an endorsement of his thesis that the Confrontation

Clause allows the admission of hearsay only if an exception for

such hearsay was recognized by 1791. See Davis Brief: 23; see

also Hammon Brief: 29. But this Court did not by any means

endorse petitioner's view. The Court simply stated that, because

of the vintage of the dying declaration exception, even a

testimonial dying declaration might be admissible. The Court

did not state that all more-recently recognized hearsay

exceptions are unconstitutional. Petitioner Hammon makes a

similar mistake as to excited utterances. Sce Hammon Briet: 22-

23.

B. Crawford limits the class of "testimonial" statements

to those akin to the ex parte affidavits used in Marian

times.

Petitioner Hammon's brief, and the amici

submissions of defense groups and civil liberties

organizations, appear gencrally to recognize that the

Confrontation Clause applies only to "testimonial" hearsay.

The flaw in these briefs is that they define testimonial

hearsay far more broadly than is justified. According to the

definitions proposed in_ these briefs, testimonial

declarations include any "accusatory" statement, or any

statement made by a person who reasonably would expect

that the utterance will be of any use to law enforcement.

See, e.g., Hammon Brief: 7-8, 41; Brief of NACDL: 3, 3-4,

5, 7-9, 14-17, 21, 23; ACLU Brief: 8, 14.'°. These tests

have one thing in common: they find no basis in Crawford

or earlier decisions of this Court.

As Crawford explained, the Roberts test had

departed from “historical principles” by being "too broad,”

since it applied "the same mode of analysis" to all hearsay,

whether or not it "consist{ed] of ex parte testimony."

Crawford, 541 U.S. at 60. In addition, the Roberts test was

"too narrow,” because it allowed the admission of "ex parte

testimony upon a mere finding of reliability." Id. Hence,

' The latter two references are, more formally. to the

brief submitted in the HLlammon case by “The National

Association of Criminal Defense Lawyers and the Public

Defender Service for the District of Columbia" and to the bnef

submitted in both cases by "The American Civil Liberues Union.

the ACLU of Washington and the Indiana Civil Liberties

Union.”

this Court adopted a new standard in Crawford, focused on

ex parte "testimonial" statements, in order to return the

Confrontation Clause to its proper concern. That is, this

Court sought to remove "close constitutional scrutiny" from

most hearsay while ensuring strict enforcement of the

clause for "paradigmatic confrontation violations." See

Crawford, 541 U.S. at 60.

In promulgating this standard, Crawford adopted a

limited definition of "testimonial." "Testimony" means a

"solemn declaration or affirmation made for the purpose of

establishing or proving some fact." Crawford, 541 U.S. at

51 (quoting 1 N. Webster, An American Dictionary of the

English Language (1828)). Hence, an “accuser who makes

a formal statement to government officers" bears

"testimony" within the meaning of the Confrontation

Clause. Others, such as “a person who makes a casual

remark to an acquaintance," do not. Crawford, 541 U‘S. at

51. Therefore, at its core, the confrontation right is

concemed with formal declarations such as “prior

testimony at a preliminary hearing, before a grand jury, or

at a former trial" -- and also "police interrogations" --

because those “are the modem practices with closest

kinship to the abuses at which the Confrontation Clause

was directed." Id. at 68.

In finding that these types of statements were

testimonial, Crawford did not attempt to provide a precise

definition of "testimonial" declarations. The Court did,

however, identify three possible definitions of this core

class of statements: (1) "ex parte in-court testimony or its

functional equivalent — that 1s, material such as affidavits,

custodial examinations, prior testimony that the defendant

was unable to cross-examine, or similar pretrial statements

that declarants would reasonably expect to be used

19

prosecutorially"; (2) "extrajudicial statements

contained in formalized testimonial materials, such as

affidavits, depositions, prior testimony, or confessions";

and (3) "statements that were made under circumstances

which would lead an objective witness reasonably to

believe that the statement would be available for usc at a

later trial." Id. at 51-52.

We submit that the first two definitions, which are

quite similar,~ correctly suggest the boundaries of

"testimonial" hearsay. Under both definitions, a

"testimonial" declaration would be a statement (1) created

in a formal, out-of-court examination by a government

agent (2) of a declarant aware that the statement was

intended for use at a trial. Both definitions are consistent

with this Court's pre-Roberts interpretations of the

Confrontation Clause, which make plain that the clause

excludes only formal hearsay statements. In that regard,

both definitions include only "solemn declarations or

affirmations." And both encompass the examples of

testimonial hearsay identified in Crawford. See Crawford,

541 U.S. at 68. Helpfully, these definitions likewise

simplify the task of the lower courts. They moot any

debate about whether subjective motives or understandings

of the speaker, or the listener, control whether a statement

is "testimonial." See, e.g., Hammon Brief: 14-21. And

they effectively eliminate the need to engage in speculation

about the mental states of unavailable declarants.

Simply put, when an affidavit is signed or a

statement is taken in a formal setting, both the declarant

and the interrogator are well aware that it can be used for

tral. It is only when both the declarant and the

interrogating official are aware that a statement is being

20

taken for possible use at tnal that the statement is

"testimonial."

The third possible definition of testimonial hearsay

reported in Crawford is not supported by any of this Court's

pre-Roberts holdings. But even that formulation is far

narrower than the ones proposed by petitioner Hammon

and the supporting amici. Petitioncr Hammon insists that

"testimonial" hearsay includes any statement that the

declarant might reasonably expect to be used for any law

enforcement purpose, and not just at trial (Hammon Brief:

12-13, 18). For example, petitioner would have it that a

victim's spontaneous statement to a 911 operator that he

needs aid because he has been shot is no different from a

swom deposition or prior trial testimony. Needless to say,

petitioner cites no precedent from this Court in making thai

suggestion.

Alternatively, petitioner Hammon urges this Court

to rule that "a statement made to a known police officer (or

other government agent with significant law enforcement

responsibilities) and accusing another person of a crime is

testimonial within the meaning of Crawford" (Hammon

Brief: 7, 10). He thus would remove from consideration

whether either party to a statement anticipated its

subsequent law enforcement use, and focuses only on

whether the statement qualifies as an “accusation” —

however an “accusation” might be defined. But petitioner

Hammon weaves this test too from whole cloth, rather than

any Confrontation Clause decision of this Court. Even the

third possible definition of "testimonial" hearsay identified

in Crawford suggests specifically that the declarant must

believe that the statement would be used at the subsequent

trial, and not that it simply is "accusatory." And petitioner

Hammon's test would sweep into the "testimonial" category

21

an infinite number of statements that are not remotely

"solemn declarations or affirmations." Crawford, 541 U.S.

at 51.

Along those lines, Crawford made clear that many

statements that might be useful to law enforcement are far

afield from the core purpose of the confrontation right. For

instance, the clause does not prevent prosecutorial use of an

"off-hand, overheard remark" — for example, a "casual

remark" made by a person to an acquaintance — because

such a remark "bears little resemblance to the civil-law

abuses the Confrontation Clause targeted." Crawford, 541

U.S. at 51. In acknowledging that the clause has nothing to

do with such remarks, this Court made no exception for

casual remarks that are “accusatory,” including even

remarks made to a police officer.

And Crawford made plain that the statements

governed by the clause are "solemn" and “formal.”

Crawford, 541 U.S. at 51. Obviously, not every statement

to a police officer, even when offered in answer to the

officer's questions, is solemn or formal. Crawford is thus

inconsistent with petitioner Hammon's “one size fits all”

approach, in which any accusatory declaration made to law

enforcement personnel is testimonial. For instance, a

witness's statement asking a police officer for aid against an

attacker, during the commission of a cnme or shortly

thereafter -. "officer, get him, he just robbed me" -- is not

testimonial. It is not formal. The declarant does not

anticipate that it will be introduced at tnal. Indeed, even if

such a statement is elicited by the officer's inquiry as to

what has just happened, the officer likewise does not expect

the answer to become evidence at a trial.

9?

That informal statements may be the product of

police questioning calls to mind another aspect of the

Crawford analysis. This Court noted in Crawford that

responses to “interrogation” may be testimonial, 541 U.S.

at 52-53. But the statement found by Crawford to be

testimonial was the fruit of structured questioning in a

station house. That interrogation was the equivalent of an

interrogation by a Marian justice of the peace. A public

official in Washington State asked questions after having

been persuaded that a crime had occurred, and having

narrowed the scope of his investigation. Pursuant to an

agenda, that public official engaged in_ structured

questioning to develop a particular theory about what

occurred and who was responsible. Such inquiries are

readily recognized as "interrogations" by anyone with a

television set; we see them constantly on "Law and Order"

and on many other drama shows. And, as Crawford and

innumerable other court cases demonstrate, such formal,

structured interrogations are a part of everyday police

work. It is fair to consider them testimonial. See Berger,

The Deconstitutionalization of the Confrontation Clause: A

Proposal for a Prosecutonal Restraint Model, 76 Minn. L.

Rev. 557, 601-02, 609 (1992).

But all that has to do with agenda-dnven

interrogations. An officer who responds to a crime scene

will have little, if any, information concerning what has

happened. The officer will need to garner facts to ascertain

whether a crime occurred, whether anyone was hurt and is

in need of medical assistance, whether a suspect is still in

the area and, if so, whether he poses a danger to the

civilians who have remained and to the officers who are

looking for him. The need fully to understand what has

happened will regularly require officers to elicit more than

a brief synopsis of the crime from the witnesses and

25

victims. Still, these on-the-scene inquiries ~are not

"interrogations" designed to produce an_ evidentiary

statement for trial. The officer has no agenda other than to

learn what happened. These informal inquiries thus are not

"testimonial.”' |

Crawford has created dramatic uncertainty in the

state and federal courts as to whether hearsay will now

generally be barred in criminal prosecutions. That

uncertainty is reflected in the myriad cases citing Crawford,

some of which have read Crawford as petitioners do. Even

the most routine applications of hearsay exceptions,

including those involving collateral facts -- such as the

maintenance of breathalyzer equipment or the absence of a

record from a government file -- have been disallowed.

See, e.g., People v. Orpin, 8 Misc. 3d 768, 796 N.Y.S.2d

512 (Justice Court, Town of Irondequoit, Monroe Co.

2005); People v. Niene, 8 Misc. 3d 649, 798 N.Y.S.2d 891

(Cnm. Ct. N.Y. Co. 2005). And the disagreement about

excited utterances, including those in 911 calls, has been

profound. If petitioners are successful here, the result will

be that in many thousands of cases every year, juries will

be denied information that, before Crawford, was routinely

considered competent evidence and was never believed to

violate the nght of confrontation.

- ——

'' Petitioner Hammon supposes that, if this Court

maintains its view that only formal interrogations constitute

"testimonial" hearsay, initial responders to crimes may simply

decide to avoid foreknowledge of what they will face at crime

scenes. Hammon Brief: 8, 37-40. That cynical view not only

reflects unjustified contempt for law enforcement officers, but

also absurdly underestimates their instinct for scl{-preservation.

24

But the understanding of the Confrontation Clause

that is championed by petitioners, and that is now routincly

disrupting criminal cases, has no basis in history. The

discredited Roberts analysis resulted in the scrutiny of a

vast number of hearsay statements under the clause, but

barred hearsay only sporadically. Crawford substituted a

rule absolutely barring hearsay in a narrow category --

"testimonial" hearsay — if the defendant had no opportunity

to cross-examine the declarant. Petitioners conflate the two

approaches, seeking to have their cake and eat it too. They

would extend the Confrontation Clause to vast amounts of

hearsay, and at the same time bar all that hearsay

absolutely. NDAA asks this Court to reject petitioners’

invitation to follow that novel and unprecedented path, for

it would make it far more difficult to obtain just results in

criminal cases.

Part Three: The Statements in the Present Cases

are not "Testimonial," and Due Process should

be the Ultimate Test_of the Propriety of their

Introduction at Trial

The statements at issue in the Hammon and Davis

cases are not testimonial hearsay. They bear none of the

indicia of the statements in the core area covered by the

Confrontation Clause: they were not formal statements

akin to testimony or affidavits, made for presentation in

court.'” To be sure, the declarants were asked questions by

1?

An affidavit signed by the victim was of course

introduced at the trial of petitioner Hammon. The Indiana

Supreme Court considered the introduction of the affidavit to be

harmless Crawford error, given the ora] statements of the victim

that were recounted at tnal. See Hammon Brief: 4-6.

25

agents of the state. But there was no "interrogation" of the

sort addressed in Crawford, in which officials with an

investigative agenda seek to obtain evidence about a past

cnme. Rather, in each case the declarant spoke with an

agent of the state who lacked advance knowledge even that

a crime had taken place.

It remains to discuss a question left open in

Crawford. The fact that the statements at issue are not

"tesumonial" places them outside the core area of

confrontation rights protected by the Confrontation Clause.

In Crawford, however, this Court left open the question of

whether the clause offers some protection outside this core

area of concern. See Crawford, 54] U.S. at 68. Amicus

urges the Court now to state, consistent with its decisions

before Roberts, that the Confrontation Clause addresses

testumonial statements alone, and does not more generally

constitutionalize a prohibition against hearsay.

If instead the Confrontation Clause applied outside

the testimonial area, its application would presumably take

one of two forms. First, the clause might — as petitioner

Davis in particular has urged — be read to bar any hearsay

as to which no exception was recognized in 1791. As noted

above, however, that approach is flatly inconsistent with

the history of the clause, especially as it has always been

understood by members of this Court. The clause was

never designed to freeze in place the law of evidence as in

stood in 1791. Second, the clause might be read to bar

“unreliable” non-testimonial hearsay. But in Crawford this

Court justly laid to rest the Roberts reliability framework,

and that framework would be as inadequate for admitting

non-testimonial hearsay as it has proved to be for admitting

all hearsay.

26

Petitioners seem to believe that the Confrontation

Clause must be broadly read, lest the courts be flooded with

hearsay beyond the narrow class of testimonial statements.

Petitioner Hammon, for example, is troubled by fears that if

only a narrow class of testimonial hearsay is covered by the

clause, a witness could seal a statement in a pot, or provide

an account to a friend with the understanding that the friend

would then repeat it in court. See Hammon Brief: 11.

But those fears are groundless. The Confrontation

Clause is of course not the only rule that keeps hearsay out

of criminal proceedings. State constitutional provisions

also guarantee confrontation, and many of those provisions

might, in the post-Crawford world, be read more broadly

than the Sixth Amendment. More importantly, the Federal

Rules of Evidence and every state's law of evidence restrict

the introduction of hearsay. The statement in a pot, and the

account provided to a friend, would not be admissible in

any jurisdiction.

Moreover, the Due Process Clauses of the Fifth and

Fourteenth Amendments wil] always provide a "backstop,"

in the event that a state employs an unreasonably

permissive rule on the admissibility of non-testimonial

hearsay. Due Process has already been declared the basis

on which a defendant can obtain relief when a state hearsay

rule is unduly restnctive. Chambers v. Mississippi, 410

U.S. 284 (1973). Similarly, the Due Process Clause would

afford a defendant relief when a state rule about non-

testimonial hearsay is unduly permissive. Notably, for this

Court to recognize that principle in Hammon and Davis

would create a logical complement to Chambers. But when

due process guarantees are not implicated, the Framers

intended to leave each state free to adopt rules of evidence

that seem sensible to its own citizens. See Estelle v.

27

McGuire, 502 U.S. 62, 67-70 (1991); Spencer v. Texas,

385 U.S. 554, 563-64 (1967) ("Cases in this Court have

long proceeded on the premise that the Due Process Clause

guarantees the fundamental elements of fairmess in a

criminal trial. ... But it has never been thought that such

cases establish this Court as a rule-making organ for the

promulgation of state rules of criminal procedure").

* * *

The short-lived Roberts era aside, this Court has

never understood the Confrontation Clause to regulate all

hearsay or to work a substantial revision of the rules of

evidence. And certainly, this Court never hinted that the

clause barred the states from refining their views on the

admissibility of excited utterances or of any other garden-

variety types of hearsay. As Crawford explained, a hearsay

declarant does not qualify as a "witness" for confrontation

purposes unless he has made a "solemn declaration" akin to

a formal statement under oath. A 911 call or an excited

remark at the scene of a crime -- whether made to a

responding officer or to anyone else -- is not "testimony" in

any sense of the word. Petitioners twist the plain meaning

of the clause in an effort to expand the constitutional ng*et

of confrontation beyond al! plausibility and precedent.

CONCLUSION

The judgments against petitioners should be

affirmed.

David M. Cohn

Susan Axelrod

Joshua A. Engel

Of Counsel

January 31, 2006

Respectfully submitted,

Paul A. Logli

State's Attorney

Winnebago County, Illinois

President, National District

Attorneys Association

Mark Ryan Dwyer

Counsel of Record

One Hogan Place

New York, New York 10013

(212) 335-9310

29

TABLE OF CONTENTS

Pe Ce CUR CME Oi ctcccsensstncscnstcssinimamnvmnnnnians

INTEREST OF THE AMICI CURIAE .........:ccccceeee0ee

SUEIRARRY GF ARIUIIIIIING crcesecccssccsesssscscscsscenconvenes

PEEPS criitnascinesinenenintenninaoananetnneniaee

I,

THE LEGAL AND SOCIAL HISTORY

OF DOMESTIC VIOLENCE CREATES

UNIQUE BARRIERS TO PROSECUTION ....

A. Domestic Violence is Characterized by a

Pattern of Terror, Domination and Control...

B. The Legal System Has Historically Con-

doned or Ignored Domestic Violence..........

BATTERING CREATES A DYNAMIC

THAT COMPROMISES THE TRUTH-

GATHERING FUNCTION OF THE PROSE-

CUTOR AND REQUIRES THE USE OF

ALTERNATIVE RELIABLE EVIDENCE.......

A. Domestic Violence Places Most Battered

Women in an Untenable Position With

Regard to Criminal Prosecution .................

B. Evidence-Based Prosecution is Often the

Only Effective Means to Hold Batterers

Criminally Accountable...............csccccceseeseees

AN OVERLY EXPANSIVE VIEW OF THE

TERM “TESTIMONIAL” WILL CONVERT

THE CONFRONTATION CLAUSE FROM

A SHIELD INTO A SWORD TO BE

WIELDED AGAINST VICTIMS OF DO-

a WNL ptciieninninnensncainnsiieinlansciiseiibiinin

(1)

10

14

16

TABLE OF AUTHORITIES

CASES Page

Bockting v. Bayer, 399 F.3d 1010, amended, 408

SF five. Le | een 19

Bradley v. State, | Miss. (1 Walker) 156 (1824)... 8

Crawford v. Washington, 541 U.S. 36 (2004)....... passim

Fowler v. Indiana, 809 N.E.2d 960 (Ind. Ct. App.

2004), vacated, 829 N.E.2d 459 (Ind. 2005)..... 28

Gonzalez v. State, 155 $.W.3d 603 (Tex. Ct.

FRE Fee eintnincrocerinctiatiniindanianainbininveseinenie 25

Lego v. Twomey, 404 U.S. 477 (1972) ....cecceceeseses 23

Mason y. State, 173 S.W.3d 105 (Tex. Ct. App.

Jie eicccceiidecndecipiudciaiiaisenennuinbieteniioeseednmennesinsatits 19

Miller v. State, 615 S.E.2d 843 (Ga. Ct. App.

Sete sicininsaserisaivecicceneianibesaceitsitilabistenididelaiasonintintes 18

People v. Adams, 16 Cal. Rptr. 3d 237 (Cal. Ct.

App. 2004), review granted, 99 P.3d 2 (Cal.

People v. Geraci, 649 N.E.2d 817 (N.Y. 1995) .... 23

People v. Melchor, No. 1-03-3036, 2005 Ill. App.

LEXIS 1123 (Il. App. Ct. Nov. 14, 2005)........ 24

- People v. Romero, 13 Cal. Rptr. 2d 332 (Cal. Ct.

BR, FU ivesccncictiittanstarmpindspienitiniiinintasnnbeaies 23

People v. Santiago, No. 2725-02, 2003 N.Y. Misc.

LEXIS 829 (N.Y. Sup. Ct. Apr. 7, 2003)............ 26

People v. Victors, 819 N.E.2d 311 (Ill. Ct. App.

2004), appeal denied, 214 Il. 2d 549 (2005)... 19

Reynolds v. United States, 98 U.S. 145 (1870)...... 21

State v. Black, 60 N.C. 262 (1864) .......cccccceceeeeeee

State y. Grace, 111 P.3d 28 (Haw. Ct. App.),

cert. denied, 107 Haw. 348 (2005) ..............2000. 18

State v. Jarzbek, 529 A.2d 1245 (Conn, 1987)...... 23

State v. Powers, 99 P.3d 1262 (Wash. Ct. App.