JUDGING CRIMES

The title doesn't refer to the Justice's sense of humor, which tends toward heavy-handed sarcasm.  Nor am I commenting on the fact that a person who dishes it out so enthusiastically should prove so thin-skinned himself (look at paragraphs 17-24 of this Charles Lane story).

I'm writing about Crawford v. Washington, the 2004 case in which Justice Scalia rolled out only the third version of the confrontation clause in our nation's history.  Version I lasted 189 years, but version II (Sixth Amendment 1980) was scrapped after just 24 rocky years, although it lingers in many courtrooms as a legacy system. 

Version III (Sixth Amendment 2004) was rolled out with great fanfare by Justice Scalia in an opinion that neatly captures both the justice's great strength (no one demolishes like Scalia) and his great weakness (he has no talent for creating new systems to replace those he trashes).  So far as I know, it's the only case that has a blog devoted to it, maintained by a true Founder of the new and improved sixth amendment, Professor Richard D. Friedman.

In the course of his Crawford opinion, Justice Scalia made a telling point about the unpredictable results achieved with multi-factor analyses of the type heavily in vogue among the justices of the 1970s and 1980s, roughly the same period during which this look was cutting-edge:

[T]he nine-factor balancing test applied by the Court of Appeals below is representative. [The result reached] depends heavily on which factors the judge considers and how much weight he accords each of them. Some courts wind up attaching the same significance to opposite facts.

Justice Scalia's Crawford opinion went on to declare that the truly decisive question is whether a given item of hearsay evidence is, or is not, "testimonial" - while "leav[ing] to another day" any explanation of what that word might mean.  Since 2004, naturally, courts have busied themselves trying to define the word, or rather trying to anticipate how five justices of the Supreme Court might choose to define it in the next few years. 

One of the California Courts of Appeal (why is it only one Appeal in California, but Appeals in every other intermediate appellate court?) recently tried to articulate what Justice Scalia was getting at:

The determination of whether a statement is the product of police interrogation and thus testimonial, in our view, does not rest upon one feature, such as whether the statement occurred in a “formal” setting, was the product of “structured questioning,” or constituted a spontaneous statement.  Instead, the resolution of whether a statement was the product of police interrogation requires a fact-specific inquiry into a variety of circumstances. 

The court then helpfully explained what circumstances (or are they factors?) must be considered (or is it weighed?):

These factors include [1] the time at which the statement was given in relationship to the crime; [2] the status of the police investigation at the time the statement was given, including the extent of police knowledge concerning the occurrence of a crime, potential suspects, and potential victims; [3] whether the crime scene has been secured; [4] the identity of the person hearing the statement (i.e., whether that person was a governmental authority); [5] whether the declarant volunteered the statement or whether the person hearing the statement solicited it; [6] the declarant’s purpose for speaking and his or her mental state at the time; [7] the location where the statement was given; [8] whether the statement was recorded, and if so, by what means; [9] the level of detail provided by the declarant; and [10] whether all or part of the statement was in response to questioning.  [Citation omitted.]

Yes, it's true.  The 9-factor test condemned by Justice Scalia has been replaced with a 10-factor test instead.