More on Davis/Hammon

By Kevin Russell
on Jun 19, 2006 at 3:33 pm

Richard Friedman has these further thoughts on today’s opinion:

I agree with everything Jeff says. I hope he is proven right. If the Court adheres to the line of past events versus ongoing ones, that would not be so bad, though there will be ambiguity as to when an incident ends. I was glad to see the Court’s apparent endorsement of the Brasier case as a guide; clearly, the statements there were made a very short time after the incident, immediately upon the girl’s arriving home. I also think that it is unfortunate that the Court’s opinion is theoretically confusing. Theoretical incompleteness is not bad; that can be filled in by later cases. But the Court’s emphasis on purpose of interrogation is a wrong move.

I did say to Joan early on, rather teasingly, that I would be “bitterly disappointed” if I lost a single vote in Hammon, and of course I’m not so disappointed by the loss of Thomas, who I think has just gotten himself into a narrow-minded box on this. But I think my comment was limited to Davis, which obviously was a tougher case. (I would have been very happy with five votes in that case.) If not, cheery bravado went over the line to something far more optimistic.

I agree with Joan, and have since long before these cases arose, that there ought to be a robust doctrine.of forfeiture. I think the Court’s windfall comment is not meant to be taken as “Tough luck” but as “. . . were it not for the forfeiture doctrine.” But I think that before forfeiture is applied, the court ought to make a serious determination that the accused’s wrongdoing really is the cause of unavailability, and that will require some procedural safeguards. Otherwise, it is easy enough for a prosecutor to argue, “She’s scared,” and for the court to sign off on that without a genuine inquiry.