Wednesday, January 25, 2006

The Supremes: Greatest Hits (vol. 2)

Crawford v Washington, 541 US 36 [2004] [available here]

An instant classic, Crawford v Washington has managed to flip everyday criminal trial and appellate practice in New York on its ear. I have posted more on Crawford than any other criminal decision in the nine months or so that this blog has been up and running, simply because the fallout from Crawford is so widespread. Previously settled trial practices are being questioned. Can the People in a murder trial simply have a substitute medical examiner opine as to manner and cause of death based on an autopsy report prepared by a non-testifying medical examiner, or is the autopsy report testimonial hearsay? Can the People play a 911 tape for the jury, or is the call testimonial hearsay? Does Crawford apply at recidivist sentencing hearings in New York? Is a simple "affidavit of mailing" testimonial hearsay? The Fourth Department says yes, but it is by no means clear that the U.S. Supreme Court would reach the same conclusion. What about breathalyzer calibration records?

All great questions, and all questions Justice Scalia deliberately left for another day by not setting forth a comprehensive definition of 'testimonial' in Crawford. The Court of Appeals has recently weighed in and defined "testimonial" very broadly--a nice development for New York criminal defendants. But we will just have to wait and see if the Supremes are as generous when they get around to deciding the issue.