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August 19, 2007


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So basically they held that it was not testimonial. Hmm, I guess I could see that, but it's close.


Unlike Gideon, I don't see it. Hearsay elicited by a police officer's questioning is testimonial and inadmissible; moreover, there is a reason for that. What if, for example, this cop was lying?


The cop is available to cross. So, if s/he's lying, you've got a chance to try to show that.

And, I just don't see how it makes sense, from a policy perspective, to encourage an assailant to actually kill someone rather than simply harm them.

And, quite frankly, there's a reason for the dying declaration (in this case, excited utterance) exception--they're allowed because the statement is supposed to be inherently truthful. To circumvent that ratioale and not allow the identifying statement in because the victim inconveniently died and can no longer be crossed just seems wrong to me.

Granted, the issues I'm raising were never even reached by the court in this case, since the court determined that the statement wasn't testimonial, and I'm in essence arguing for an exception to Crawford in the cases where the victim dies and makes an ID prior to dying.

And, in regard to the Court's holding in this case, I still think the Court was correct. The cop was simply trying to ascertain what had happened at that point.
When a person has been shot and the assailant is possibly still nearby, the cop has to try to get the situation under control and protect the public from further assaults if at all possible.

Scott Greenfield

Crossing the hearsay reporter is hardly a substitute for crossing the declarant. The reporter (in this case the cop) just shrugs and says, "Hey, the victim said it was Bori."

But did the victim have an opportunity to observe? "I dunno," says the cop. "I'm just telling you what the victim said. If you want to know more, you have to ask the victim." But the victim is dead.

As I wrote over at Simple Justice, I agree with your view of public policy, that it should serve as an incentive for the benefit of society. But public policy can't trump the Constitution when it comes to protecting the rights of the individual. That's the tyranny of the majority.

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