Federal Law & Legal System – Page 150 – 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.

Anatomy of an Op Ed

Post author:Edward A. Fallone
Post published:July 4, 2009
Post category:Legal Writing Media & Journalism Political Processes & Rhetoric U.S. Supreme Court

I authored an opinion piece in support of Judge Sonia Sotomayor’s nomination to the Supreme Court that was published in the June 28, 2009 edition of the Milwaukee Journal Sentinel. You can read the piece here (and you can read a “dueling” piece authored by Rick Esenberg here).

What follows is a deconstruction of my own op ed piece. The final product as it appeared in the newspaper has its origins in the fundamentals of logic and rhetoric. Law students, in particular, may be interested in the way in which I employ several classic techniques of persuasive writing in order to make my case.

Believe in Your Argument: It is not necessary to have an angel for a client, but it helps. The most accomplished persuasive writing techniques will not hide the fact that your argument is a stinker. My task is to persuade the reader that my belief – that Judge Sotomayor is a moderate jurist who should be confirmed to the Supreme Court-is one that they should adopt as well. If I do not believe my own argument, I will not succeed in convincing the reader.

Know Your Audience: My language is directed towards the non-specialist, so I consciously avoided legal technicalities. Also, I assume that the average newspaper reader will be skimming the text rather than fully engaged in my arguments. Therefore, I utilize simple and direct sentences as opposed to rhetorical questions or complex syllogisms that require greater concentration to follow.

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.”