Crawford v. Washington (02-9410), Iowa v. Tovar (02-1541) and Dura Pharmaceuticals v. Broudo (03-932)

March 9, 2004 Supreme Court Update

Greetings Court fans!

Two criminal cases came down yesterday, along with one item of interest from the order list. I'll begin with the cases.

The big case yesterday was Crawford v. Washington (02-9410), a case briefed, argued, and won by a former colleague of mine -- congratulations Jeff!! In this case, by a vote of 7-2, the Court completely reformulated its Confrontation Clause jurisprudence. Crawford was charged with the attempted murder of a man who had allegedly tried to rape his wife, Sylvia. Sylvia was a witness to the stabbing and gave a tape-recorded statement to the police that was arguably inconsistent with Crawford's theory of self-defense. At Crawford's trial, Sylvia did not testify (marital privilege), but the prosecution introduced her statement to the police over Crawford's objection that it violated the Confrontation Clause. The Washington state courts ultimately rejected Crawford's argument and upheld his conviction. In an opinion by Scalia (for everyone but the Chief and O'Connor), the Supreme Court reversed.

As you would expect from a Scalia opinion interpreting the Constitution, the opinion begins with a lengthy discussion of the historical background of the Confrontation Clause, both in England and in the colonies. This historical examination leads to two conclusions about the Confrontation Clause. First, the principal evil at which the clause was directed was the civil law mode of criminal procedure (as opposed to the common law method) and its use of ex parte examinations against the accused. This suggests that not all hearsay implicates the clause. The chief concern, rather, was with witnesses who "testify" against the accused, and interrogations by police officers fall squarely within this class. Second, the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify and the defendant had had the opportunity for cross examination. After establishing these two principles, Scalia reviews the Court's prior cases and concludes that in result, they were largely consistent with these principles. In rationale, however, the Court's cases have departed from these basic and original understandings of the clause. Specifically, in Ohio v. Roberts, the Court conditioned admissibility of all hearsay statements on whether they fall within a firmly rooted hearsay exception or bear "particularized guarantees of trustworthiness." This test is inconsistent with the Constitution (as understood by the Framers) and hence is rejected. Of course, the clause is designed to ensure that evidence is reliable, but that is not all it does. It establishes a specific method for establishing reliability, namely the confrontation of witnesses. The Roberts test replaces this constitutionally prescribed method of assessing reliability with a judicial determination and so must be rejected. As summarized by Scalia: "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes." In any event, "reliability" under Roberts is highly unpredictable, and different courts often reach different outcomes. In sum, as held by Scalia for the Court, testimonial statements of witnesses absent from trial are admissible only when the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine the witness.

The Chief, joined by O'Connor, concurred in the judgment because he would not overrule Roberts. Basically, the Chief disagrees with Scalia's reading of history.

The second opinion, Iowa v. Tovar (02-1541), is much less momentous. A unanimous Court (opinion by Ginsburg) held that a court does not have to offer specific warnings to a defendant about the value of counsel before allowing him to plead guilty without the aid of counsel. Tovar was arrested in a series of drunk driving incidents, and in one of those incidents, without the aid of counsel, pleaded guilty. The Iowa Supreme Court held that Tovar's conviction was faulty because the trial judge had failed to warn him that (1) by waiving the right to counsel in deciding whether to plead guilty he risks overlooking a viable defense, and (2) by waiving his right to counsel, he will lose the opportunity to obtain an independent opinion on whether he should plead guilty. The Court reversed. Although the Sixth Amendment grants a right to counsel for criminal cases, a person accused of a crime may waive this protection so long as that waiver is knowing, voluntary and intelligent. This standard for waiver, however, does not mandate any particular formula or script. Rather, the decision on whether a waiver is acceptable depends on the facts of the case. In this case, the particular statements mandated by the Iowa Supreme Court are unnecessary. There is no indication that these warnings would have enlightened Tovar's decision on whether to waive counsel. That's about it for this case, a straightforward case of error correction.

Finally, from Monday's order list, the Court asked the SG to provide the views of the United States in Dura Pharmaceuticals v. Broudo (03-932), a securities fraud case with the following question: Must a securities fraud plaintiff invoking a "fraud-on-the-market" theory demonstrate loss causation by pleading and proving causal connection between alleged fraud and investment's subsequent decline in price?

That's all until March 22. Until then, thanks for reading!

Sandy

From the Appellate Practice Group at Wiggin and Dana.
For more information, contact Sandy Glover, Aaron Bayer, or Jeff Babbin
at 203-498-4400, or visit our website at
www.wiggin.com.