The Lincoln Bicentennial Commission

Last week’s highly successful Legacies of Lincoln conference at the Law School, co-sponsored by the History Department, generated much praise and many compliments from both participants and the audience.  For those unable to attend as well as those hungering for more insights about Lincoln, please visit the Law School’s website or consider attending the program described below.

On Saturday, October 10, 2009, the Wisconsin Lincoln Bicentennial Commission will commemorate the Bicentennial of Abraham Lincoln’s birth as well as the 150th anniversary of Lincoln’s speech at the Wisconsin State Fair in Milwaukee on September 30, 1859. The keynote speaker for the event will be Orville Vernon Burton, emeritus professor of history at the University of Illinois and Burroughs Distinguished Professor of Southern History and Culture at Coastal Carolina University.  His most recent book is The Age of Lincoln.  

The Program will be held in Memorial Hall at the Milwaukee War Memorial Center from 11 am to 12:30 pm.  Members of Wisconsin’s 1st Brigade Band will perform Civil War period music beginning at 10:30 am. 

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Confrontation and Criminal Trials: What’s Actually in Play

The long-awaited Supreme Court decision in Melendez-Diaz v. Massachusetts finally came down on June 25, 2009.  See my prior post here.  Neither the majority opinion nor the dissent yield many clues about what took so long (this was the last case from the Court’s November sitting), and on the surface at least there is little that is portentous.  Yet the case is ultimately about far more than hearsay evidence in criminal trials.  It reveals significant discord about the nature of the modern adversary trial as well as skepticism over the use of science in the courtroom. 

The case addressed whether the government may introduce a crime laboratory report (hearsay) against a defendant without calling as a witness the analyst who performed the test.  The Court held that such reports are manufactured expressly for use at trial against the defendant; hence, they constitute “testimonial hearsay” that cannot be introduced without the declarant (the lab analyst) on the witness stand, available for cross-examination.

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Confrontation Avoidance? Part I: A Good Article to Read While Waiting

Like nearly every criminal lawyer, I eagerly await – and wait and wait – for the Supreme Court’s long overdue decision in Melendez-Diaz v. Massachusetts (07-591), the only case outstanding from the Court’s November sitting (per SCOTUSBLOG).  The case addresses the prosecution’s use of crime laboratory reports against the accused without testimony by the person who performed the analysis and wrote the report.  We need not get bogged down in the constitutional niceties at present, if only because its delayed appearance renders the case’s auguries especially hard to read.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Continue ReadingConfrontation Avoidance? Part I: A Good Article to Read While Waiting