[Eugene Volokh, June 25, 2009 at 11:12am] Trackbacks
Congratulations to Recent Boalt Hall Graduate Carolyn Zabrycki,

whose student article (Toward a Definition of “Testimonial”: How Autopsy Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. Rev. 1093 (2008)) was cited three times -- and seemingly significantly relied on -- by Justice Kennedy's dissent in Melendez-Diaz v. Massachusetts.

A feather in Zabrycki's cap, and (I hope) an encouragement to other students writing student articles.

D.A.:
Indeed a feather to get cited. Perhaps she should have come out the other way in her analysis. :-) "...How Autopsy Reports Do [] Embody..."
6.25.2009 11:36am
tbaugh (mail):
Is there an argument that autopsy reports are different than chemist's reports prepared by a government crime lab, or does that appear foreclosed by the opinion?
6.25.2009 11:50am
John P. Lawyer (mail):
Very cool!
6.25.2009 11:55am
Mahan Atma (mail):
It's called "Berkeley Law" now, FWIW.
6.25.2009 12:40pm
Patrick B (mail) (www):
Mahan:

Only if you are not within the "family."

http://www.law.berkeley.edu/identity/
(Below the "approved" heading)

;)
6.25.2009 12:46pm
Soronel Haetir (mail):
Not one of the high profile cases, but I love the majority line up in Atlantic Sounding, Thomas and the left side together at last.
6.25.2009 1:28pm
p.d.:
This issue has been percolating for the last five years or so, and props to Zabrycki for tacking into the wind--perusing it briefly, the note seems quite excellent. These notes are often high risk, though. Identifying a circuit split or asking your prof which issue will be decided by SCOTUS in the near future gives you a small, small chance of your note getting cited, but a substantial chance of it fading into oblivion if the Court goes the opposite direction. I imagine that there's a fair bunch of notes from the '60s, '70s, and '80s arguing for substantive due process expansions that would be a great source for lulz nowadays.
6.25.2009 2:15pm
Oren:
Props to the cite. Is this likely to make a huge wave in drug prosecutions?



Oh, an is it just me, or was Scalia even nastier than usual in dismissing the "falsity" of Kennedy's dissent?
6.25.2009 2:28pm
David M. Nieporent (www):
Wouldn't it be more of a feather to be cited by the majority?
6.25.2009 2:49pm
Federal Dog:
"was Scalia even nastier than usual in dismissing the "falsity" of Kennedy's dissent?"

There's a lot in that dissent that is false.

It's not as though chemist testimony is in any way some sort of hollow, "pro forma" technicality. Substantial grounds for doubt arise in these cases due to, e.g.: (1) the analyst’s/analysts' qualifications and experience; (2) maintenance and calibration of testing equipment; (3) testing method used; (4) the error rate of that testing method; (5) principles and facts underpinning data interpretation; (6) potential variances in interpretation according to analyst; (7) the frequency of conflicting interpretations; (8) applicable supervision practices; (9) facts relevant to chain of custody and storage; (10) the potential for contamination of the testing sample(s); and (11) record-keeping practices.

The dissent makes it sound like some guy is going to get dragged to court merely to read the cert out loud. That is plainly false, and the dissenters know it.

Further, am I the only one offended that the dissenters actually claim that the inconvenience and expense of putting a material witness on the stand is just too much to expect from the state? If the state wants to nail people for a quarter-teaspoon of coke, e.g. (I've had these cases), and grab up their property as an added financial incentive to pursue that level of persecution, let them make their bloody case in court.
6.25.2009 3:20pm
BZ:
1) Being cited in any part of a decision is a big plus for clients.

2) Being relied on in any part of a decision is better.

3) Being relied on by the majority is best. Makes the clients very, very happy (and mine are today :P).

And this set of decisions DID seem particularly nasty. Even Alito seemed gratuitously snippy today.
6.25.2009 3:26pm
krs:

And this set of decisions DID seem particularly nasty. Even Alito seemed gratuitously snippy today.

I think that can be chalked up to the fact that it's late June. I'm really interested to see what the Ricci opinions will look like.
6.25.2009 7:32pm
David M. Nieporent (www):
Further, am I the only one offended that the dissenters actually claim that the inconvenience and expense of putting a material witness on the stand is just too much to expect from the state? If the state wants to nail people for a quarter-teaspoon of coke, e.g. (I've had these cases), and grab up their property as an added financial incentive to pursue that level of persecution, let them make their bloody case in court.
I was amused more than offended at the frivolousness of Kennedy's dissent. Defendants shouldn't have the right to confront the analyst because he might get caught in traffic? Seriously? That's what Kennedy came up with?
6.25.2009 8:35pm
krs:
It's more than a little rich to read a snippy opinion by Justice Kennedy complaining about the majority making up a new rule with no basis in the text of the Constitution.

His discussion of how inconvenient and annoying it is to be a minor witness in litigation is also amusing...

A busy trial court, by contrast, must consider not only attorneys’ schedules but also those of witnesses and juries. Trial courts have huge caseloads to be processed within strict time limits. Some cases may unexpectedly plead out at the last minute; others, just as unexpectedly, may not. Some juries stay out longer than predicted; others must be reconstituted. An analyst cannot hope to be the trial court’s top priority in scheduling. The analyst must instead face the prospect of waiting for days in a hallway outside the courtroom before being called to offer testimony that will consist of little more than a rote recital of the written report.

Earth to Justice Kennedy: litigation sucks, the schedule is a moving target, and it's particularly burdensome to people who are only peripherally involved.



...though, Federal Dog, I think one of Kennedy's points is that the court's opinion isn't limited to "material" witnesses.
6.25.2009 9:11pm
David M. Nieporent (www):
...though, Federal Dog, I think one of Kennedy's points is that the court's opinion isn't limited to "material" witnesses.
If they're not material, then the state doesn't need to call them.
6.25.2009 9:16pm
vc_site:
For a law school class, I argued for the state in October 2008 and wrote a majority opinion (consistent with the Court, because I got to flip sides for the opinion) in December 2008 for this case. The longer it took for the Court to deliver the real opinion, the more fascinated I became with what the decision would be.

I am not surprised by the interesting mix of justices on the 5-4 split or the snippiness of the opinions. If one works through the case materials, one can see where the snippiness comes from.

BTW, I figured the jurisprudence of Scalia and Thomas would make the best arguments for dissents. I guess that is why I was only an student. ;-)
6.25.2009 10:42pm

Post as: [Register] [Log In]

Account:
Password:
Link B I Strike Block Quote
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.