More on Davis/Hammon

Mark Dwyer, Chief of Appeals and Counsel to the District Attorney in New York City, has this to say about Davis/Hammon.

May I begin with a short moment of what may be viewed as prosecutorial sour grapes? As I see it, Crawford and Davis in combination represent a remarkable exercise in judicial activism. The Court is making up Sixth Amendment law on the fly. In Davis, for example, the Court has cancelled more than a century’s worth of lower court development of the “excited utterance” exception to the hearsay rule, effectively restoring the “res gestae” limits on that rule, at least where statements are made to the police. And all that has been done in the name of the now-triumphant “testimonial hearsay” principle, which until recently did not exist, and the contours of which remain generally “to be announced.”

Is that good, or bad? I will concede, some of the cases in which the expanded “excited utterance” rule was applied could fairly cause discomfort, and I count Hammon as one of them. In any event, as always, most will applaud judicial activism, or condemn it, depending on whose ox has been gored. I think it should be criticized on principle.

Beyond that, let me note an interesting problem which the Crawford cases will create for the lower courts. In the Roberts era, with fairly few exceptions, both sides in a criminal case effectively operated under the same rules. If the confrontation clause barred a prosecutor’s use of a kind of hearsay, the rules of evidence almost always prevented the defendant from introducing that kind of hearsay as well. Moreover, for the most part, it was in prosecutors’ interest to argue for expanded interpretations of hearsay exceptions, since prosecutors usually have the most evidence to offer.

The new doctrines are upsetting that balance. In New York, for example, the Court of Appeals has reversed a conviction because a prosecutor’s expert witness recited third-party statements that helped form the basis of her opinion about the defendant’s mental condition, on the ground that those statements were effectively admitted for their truth and were “testimonial.” But defendants offer expert testimony as well, and will face no Constitutional limits on the introduction of out-of-court statements that are “testimonial.” As a result, either the defense will be much advantaged in the presentation of expert testimony, or hearsay rules will suddenly be read to prevent any party from presenting such background statements through the expert. And it will now be the prosecution that will argue for a narrower hearsay rule.