Criminal Law & Process – Page 134 – Marquette University Law School Faculty Blog

Confrontation and Criminal Trials: What’s Actually in Play

Post author:Daniel D. Blinka
Post published:July 6, 2009
Post category:Constitutional Interpretation Criminal Law & Process U.S. Supreme Court

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.

Prior Conviction as an Element of a Crime: The Effect of Stipulations After State v. Warbelton

Post author:Brent Simerson
Post published:July 6, 2009
Post category:Criminal Law & Process Wisconsin Criminal Law & Process Wisconsin Supreme Court

In January of this year, the Wisconsin Supreme Court unanimously affirmed the defendant’s conviction for stalking in State v. Warbelton, 2009 WI 6, 759 N.W.2d 557. In doing so, the court held that a defendant in a stalking case cannot prevent the State from submitting evidence of the existence of the defendant’s prior violent felony conviction, an element of the crime, by stipulating to the conviction before trial.

Stipulations to prior convictions became a powerful tool for defense attorneys in Wisconsin following State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989). A precursor to the United States Supreme Court’s ruling in Old Chief v. United States, the McAllister court held that the State could not submit evidence of the details of the defendant’s prior felony conviction if the defendant offered to stipulate to that element before trial. The court concluded that the details of the conviction were no longer relevant once the defendant stipulated to it. The State could satisfy the element by submitting a certified record of the defendant’s conviction to the jury.

The court in State v. Alexander addressed the derivative question left by McAllister: may the defendant completely prevent the jury from considering the prior conviction element by stipulating to the prior conviction before trial?

Seventh Circuit Criminal Case of the Week: Another Questionable Statement by a Prosecutor

Post author:Michael M. O'Hear
Post published:July 3, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

seventh-circuit On several occasions recently, the Seventh Circuit has been critical of statements made by prosecutors to jurors. (See, for instance, my posts here, here, and here.) Another questionable comment by a prosecutor was the subject of this week’s decision in United States v. Myers (No. 07-3658) (Manion, J.).

Myers was tried on arson charges. During closing arguments, defense counsel highlighted the fact that gasoline was not found by investigators on the floor of the building that Myers allegedly burned down. In response, the prosecutor stated:

[A]ny speculation on the part of [defense counsel] about why or why there wasn’t gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water. Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground. So, ladies and gentlemen, that’s an easy explainable different part of what [defense counsel] was trying to suggest.

On appeal following his conviction, Myers challenged this statement as prosecutorial misconduct.

In addressing Myers’ argument, the Seventh Circuit noted that the government was free to argue “the mere possibility that water could have cleaned or diluted the surface of the carpet.” The problem was that “the government did not couch its argument in such hypothetical terms.”