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Justices Plumb Crawford‘s Implications For Statements Made In Aftermath of Crime

Publication Date: 
October 13, 2010
Criminal Law Reporter
David McAuley

Professor Jeffrey L. Fisher is quoted on the legacy of Crawford v. Washington (2004) and the current state of the Confrontation Clause in the eyes of the Supreme Court. The Criminal Law Reporter filed this story:

One of the important issues left unanswered following the U.S. Supreme Court's recent interpretations of the Sixth Amendment's Confrontation Clause is how to apply the rule from Davis v. Washington, 547 U.S. 813, 79 CrL 333 (U.S. 2006), governing the admissibility of statements involving “ongoing emergencies” to statements a crime victim makes to police once the assailant is no longer present. Attorneys for a convicted murderer and the state of Michigan sparred before the high court Oct. 5 in a case that presents an opportunity for the justices to clarify the contours of the “ongoing emergency” doctrine. (Michigan v. Bryant, U.S., No. 09-150, argued 10/5/10)

A leading Sixth Amendment scholar told BNA that the outcome should not turn on the fact that the declarant in this case died following the incident.


Professor Jeffrey L. Fisher, a member of the Stanford Law School faculty and co-director of the school's Supreme Court Litigation Clinic, told BNA that although this is a hard case and the court is closely divided, he senses no threat to the continued viability of Crawford. “The Confrontation Clause is in the same place now that the Fourth Amendment and Miranda were in 1970,” Fisher said. “Now we are going to get serious about applying the Bill of Rights to out-of-court statements and it will take some straightening out,” he said.

Fisher, who argued in the Supreme Court for the defendants in both Crawford and Davis, agreed that footnote 1 in Davis bears “fleshing out.” The state had better hope the court homes in on the intent of the declarant and whether he is speaking as a witness would, Fisher warned. Otherwise, it might put at risk the admissibility of statements made by witnesses in the course of covert investigations such as those involving wiretaps, he said.