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1 The Reformer The Magazine of the MSLawaw Community Fall 2006


3 The Reformer Table of Contents Departments 3 Message from the Student Bar Association 4 Alumni Around Town 26 Alumni Events 27 Alumni News 28 MSLaw Events 36 Student Spotlight Features 8 Supreme Alumni One alumnus will argue before the nation s highest court, while two others almost had to. 12 The SJC Confronts Crawford: Conflict or Conformity? Professor Connie Rudnick discusses Crawford v. Washington s impact on Massachusetts case law. 23 BLSA Mock Trial Team Shines in Regional Competition 24 MSLaw Enrolls its 18th Class 34 MSLaw Graduation 38 I, the Juror MSLaw adjunct faculty member Scott McLennan describes his experience in the jury box. 42 Case Note: In Massachusetts, Police Must Notify Accused of Counsel s Attempted Contact Assistant Dean Joseph Devlin discusses the police s duty regarding the questioning of suspects when the accused s lawyer contacts them.

4 The Reformer is published by the Massachusetts School of Law for students, alumni, and the legal community. Faculty Editors Professor Joseph Devlin Professor Paula Kaldis Professor Mary Kilpatrick Professor Constance Rudnick Professor Holly Vietzke Alumni Editors Tina LaFranchi, Esq. Dyan Lowman, Esq. Submissions are welcome and encouraged. Please send an electronic version (floppy disk or attachment) of your submission to: The Reformer Massachusetts School of Law 500 Federal Street Andover MA Cover photo courtesy of Commencement Photos, Inc. Copyright 2006 Massachusetts School of Law Printed by Kelley Solutions Portsmouth, New Hampshire

5 SBA News Dear MSLaw Students, Faculty, Administration, and Alumni, The Student Bar Association (SBA) is very enthusiastic about this new school year. We have many exciting events planned, and we welcome everyone's involvement and support. We would also love to hear from anyone who is interested in the SBA or has any suggestions. Last year was very successful in that we held a variety of fundraisers and activities to bring the law school community together. Last fall, to raise money for the victims of Hurricane Katrina, we held a two-day bake sale and set up a much-loved dunk tank at the annual BBQ. It was nice to see that the students' aim was better than the professors'. Too bad we lost it some time before the annual softball game. I have no doubt that this year we will be back on top and reign as champions again. This year's game and BBQ at Professor Coyne's house is scheduled for October 22. Mark your calendars and check the website for specific details as we get closer to MSLaw s own Fall Classic. The Law Day Dinner Dance was also quite a success. Many alumni attended the event, and it was a great to have a strong mix of students, alumni, and staff there. The crowd was welldressed, and the speakers at the event did a wonderful job. It was an honor to hear an alumnus, Kim Driscoll, who has used her degree to help the community in so many ways. I am also happy that it was my sister Jill Aleshire and not me that made it into Professor Copani's roast. The Comp students looked as though they were thoroughly enjoying themselves that evening, knowing that they had taken their last final in law school. I can't wait for that same feeling. We hope that this year's Law Day event will be just as fun. The planning committee is already in place, but anyone who wants to join is more than welcome. We can always use a helping hand or different ideas. And just like last year, we are planning to have a speaker come to MSLaw once a month. We are working hard to try to find interesting speakers who will captivate the students. New this year is a mentor program set up for the first-year students. This will be an opportunity for 1Ls to have a mentor who is a fellow student or graduate to answer questions about anything. Unlike a tutor, the mentor will be able to give anything from encouragement and advice on what classes to take, to even the best place for a cold beer on a Friday night. We have a very ambitious year ahead of us, but the SBA is made up of a dedicated group of students, and I have confidence that we will once again have a successful year. We hope that more alumni will participate in the events this year. It is always nice to meet people that have been in our place and survived. If anyone would like to get involved or has any suggestions please contact the SBA at Fall 2006 Sincerely, Lyn Aleshire Lyn Aleshire President, Student Bar Association 3

6 The Reformer Alumni Around Town Many of our alumni have become become very successful in the field of law and elsewhere. The Reformer regularly features a few of our distinguished graduates. Pat Dulany, Esq. Like many MSLaw graduates, Pat Dulany ( 95) had a career even before attending law school. However, unlike many law school graduates, Pat has not used his JD to practice law, but rather to enhance what was already a successful career. After receiving a degree in Communications Studies from the University of Missouri- Kansas City in 1974, Pat worked at a local Kansas City television station as a Director/Producer for various sporting events. Here he had the thrill of working with such media and sports personalities as Harry Carey, Bob Uecker, Billy Martin, and George Brett. Despite the excitement of that job, shortly after he married in 1979, Pat accepted a position with Ortho Diagnostics, a division of Johnson & Johnson. Ortho's claim to fame was RhoGAM, which removes potential viruses, including HIV, from a mother's blood to safeguard newborns and their mothers from potential viral infection. Pat's entry into the medical industry became a life-altering decision. Shortly after this career change, Pat decided to further his education and pursue an MBA from Rockhurst College, a Jesuit college in Kansas City, Missouri. After he received his MBA in 1983, Pat decided that his next career step was to run a medical company. Although he was young and inexperienced (but admits he didn't recognize it at the time), he confidently took a position as a general manager of a Healthdyne, Inc. subsidiary in Chelmsford, Massachusetts. Pat and his family moved to Exeter, New Hampshire in Founded by an engineer at Lockheed whose infant child had died of SIDS, Healthdyne developed the first monitor for sudden infant death syndrome. The company soon expanded into other medical markets including the marketing and sales of a wide variety of respiratory products such as oxygen concentrators and ventilators. Pat was so successful in this position that within three years, he was chosen as one of a select few to start up a new division related to monitoring high-risk pregnancies, Healthdyne Perinatal Services. With this new position, he took on the responsibility of managing more than 200 employees spanning nine states. His self-confidence was well placed, and he was acknowledged as Area Vice- President of the Year three times during his tenure at Healthdyne. It was during this very busy time in his career that Pat decided to attend law school, which he confesses had always been a dream of his. He took a risk with his dream, however, and applied to only one law school: MSLaw. At 40 years old, with a wife, three children, and a career to manage, he began law school in 1992, and, like so many others, has never regretted his decision. He quickly discovered that the study of law gave him a new angle on viewing complex issues in both a legal and a business context. His newly focused ability to think critically carried over to all aspects of his life, particularly the way he handled business decisions. Soon after graduation, Pat became the Chief Operating Officer/General Counsel of Infusion Solutions, a home infusion company in Bedford, New Hampshire. At that time, 4 continued on next page

7 Continued from previous page Infusion Solutions was a franchise operation. The company, owned and operated by clinicians, was in a difficult financial position, largely because the franchisor was not adequately supporting the franchisee, and the clinicians just did not have the skill set required to run a successful business. Pat stepped in and took action to break away from the franchise and turn the company around. While this was no small undertaking, Pat was confident that the education and skills he gained at MSLaw gave him the capability to meet the challenge. The separation ultimately ended up in federal court, and Pat was successful in reaching a confidential settlement with the franchisor. Due to Pat's efforts, Infusion Solutions has been independently owned and operated since April Pat is one of three owners of this now solid and financially successful company providing such important services as antibiotic therapy, chemotherapy, and end-of-life pain management. With Pat's guidance, the company is now a regional leader in the provision of home intravenous therapies. Pat acknowledges that law school prepared him to tackle a tough situation with confidence and skill. It was a defining experience in his life. He states, "While I do believe that one's success is due, in part, to the cumulative effect of all of our life experiences and all of our degrees, my law school degree was the degree. MSLaw was the right school with the right degree at the right time." It should come as no surprise that he found all of his professors to be supportive and helpful in many areas of his life, opening his eyes to an entirely new intellectual perspective. Like so many others, he acknowledges Professors Rudnick, Sullivan, and Coyne, the latter he refers to as "still the man." Pat Dulany is a testimonial to the fact that education is a powerful asset. While he does not use his JD to practice law in the typical sense (but admits he hasn't yet closed that door), the practical education and skills he acquired at MSLaw have certainly played a large role in Pat's great success in business. Janine Lepore, Esq. Not many law schools can boast students within one classroom who are professional dancers, costume designers, dance instructors, export administrators, electronics buyers, or corporate paralegals. Meet recent graduate Janine Lepore ( 05), who has been all of the above and wife and mother as well. Now she can add one more thing to her list of accomplishments: attorney at law. How, you might ask, does a person go from being a ballerina to dancing circles around opposing counsel? In reality, Janine explains, the two experiences are more similar than they appear on the surface. "After all, both involve preparation and performance," she said. Admiring the beauty and athleticism of ballet, she decided relatively late in life (for dancers), at age 14, not only to take it up, but to make it her life's work. Consequently, she engaged in a rigid regime that lasted throughout high school and included daily 4 a.m. workouts in front of the mirror. Eventually, her dedication paid off with a coveted position with the San Antonio Ballet upon graduating high school. "Ballet is grueling, challenging work that requires a level of commitment, discipline and self scrutiny that I gladly submitted to," Lepore explained. "I can't do something halfway. It's all or nothing." But by the time she turned 21, she suddenly realized that it's only the rare performer who is still able to continue into her later years without injury. With early retirement looming and no savings to speak of, Janine wisely saw the need for a backup plan. Soon thereafter, she moved back home to Billerica Fall 2006 continued on next page 5

8 The Reformer and landed a job as a secretary for an electronics company. She eventually worked her way up to buyer, which ultimately led to other opportunities for her in the exporting/importing field. Not surprising, Janine approached each job with the same dedication and passion she employed as a dancer. Meanwhile, she had always harbored an interest in the law, mostly as a result of her childhood memories of her parents' good friend, Attorney James Meehan, a well-known Boston litigator and former partner in Meehan, Black, Boyle and Fitzgerald, now retired. She fondly remembers Jim "as kind of a knight in shining armor, one who made folks' problems disappear with the strike of a pen or perhaps just a phone call." So when the opportunity arose, she applied and was admitted to several law schools, but ultimately chose MSLaw, due in part to her sister-in-law's glowing recommendation (Margo Harrison, '01), the reasonable tuition, and the flexibility MSLaw affords those with job and family commitments. Janine is quick to credit the sacrifices made by her husband and two children, the constant support of members of her study group, and her professors, too many to name, for her success at MSLaw all in that order. She is also thankful for the life skills she developed as a result of her performing background, skills that helped her compete against ATLA teams from Harvard, Rutgers, and Quinnipiac, and that now allow her to confront the hard work ahead of her as a solo practitioner. "As a professional ballerina, one is under constant scrutiny from others, and there was no alternative but to develop a thick skin," she noted. It was that thick skin, in fact, that allowed her to value her ATLA team coaches' criticisms as a welcome gift. As a professional dancer, she also learned to critique herself, a natural result of being in front of the mirror during her daily routines, and also not a bad attribute to have as a lawyer. Asked how she decided to start her own practice, Janine explained that a Haverhill attorney, for whom she did some research as an intern, convinced her to set up shop down the hall from him in office space that had recently become available. "It really didn't take much convincing, and so far I have no regrets," she said. Stan Helsinki, Esq. 6 Stan Helinski ('99) is a very busy lawyer. At the wellknown Boston personal injury and trial firm of Sarrouf, Tarricone & Fleming, P.C., where he has been practicing since 2004, he concentrates in plaintiffs' personal injury litigation, particularly cases involving damages caused by products, pharmaceuticals, medical negligence, and third party negligence. Immediately after graduation, Stan worked at Hugo & Pollack, LLP, where his practice consisted of mostly pharmaceutical products liability and toxic tort litigation. Stan graduated from Bentley College in 1994 with a degree in accounting. He decided to move from the financial world to personal injury law because practicing law "enabled me to help and provide answers for people who have found themselves in life altered situations, many times through absolutely no fault of their own," he said. Stan's work takes him all over the United States. He has tried cases involving allegations of defective products, such as silicone breast prostheses and in-line skates, in Massachusetts and in Ohio. And he has been effective in his representation. For example, he was the lead attorney in a $3.5 million settlement with a major pharmaceutical company over claims of a defective drug. His practice presently focuses in all areas of personal injury including medical negligence, products liability, premises liability, pharmaceutical, aviation disasters and injuries, and toxic torts. But Stan's time is not occupied solely by the practice of law. He has become a leading continued on next page

9 continued from previous page member of state and national Bar and Trial Lawyer Associations. He is very active in the Association of Trial Lawyers of America ("ATLA"). Stan has served as a member of its Board of Governors of the New Lawyers Division, a presenter at many of ATLA's national conventions and a frequent contributor to ATLA publications, including a 183-page chapter in ATLA's/West's Litigating Torts. MSLaw faculty and students see him annually at ATLA's regional student mock trial competition, of which he is the co-regional coordinator. He is also an active member of the Massachusetts Academy of Trial Attorneys, where he is currently a member of the Board as well as the Chair of the New Lawyers Section. In the latter capacity, he holds monthly socials in Boston for MATA members. He has organized a trip over Labor Day weekend with dozens of Massachusetts bar members and a Louisiana federal judge (Judge Ivan Lemelle) to work on a Habitat for Humanity project in New Orleans. He is also the editor of a personal injury blog, which can be accessed at: Stan says his involvement with trial lawyer associations began shortly after his bar admission. According to him, the opportunities to become active in ATLA and MATA are so numerous that he must be selective in the amount of involvement he undertakes or "I will soon have two (or more) full-time jobs." Stan advocates the benefits of membership in these organizations to other MSLaw alums. "The members of both organizations hold open arms to new members interested in being involved," he said. "Involvement promises mentoring (both formally and informally), education (effective law practice requires substantial and regular education), confidence (your mistakes may not be as bad as you make them out to be), politics (touches every aspect of our practice), and, most important, family and friendship. It is a small trial bar even nationally." Anyone interested in talking to Stan about ATLA and/or MATA, can contact him at Stan credits MSLaw for preparing him well for the active life of a personal injury litigator. He calls his education "unparalleled within Massachusetts legal education. MSLaw excels in real life preparation for students looking to enter small to mid-sized firms or for graduates seeking to hang out a shingle. Many of the professors at MSLaw are practicing attorneys and appreciate the nuances of legal practice. MSLaw prepares students for civil practice civil meaning congeniality with other brothers and sisters of the bar. Too many newer lawyers believe that a deposition is a stage to demonstrate skills of argument with a witness or opposing counsel. MSLaw prepares its students to respect the process, other members of the profession, and the profession itself. MSLaw breeds honor and respect to a profession that its professors have undoubtedly respected and loved for decades. MSLaw provides the tools needed to pass the bar exam and competently begin practice in the law." Stan is originally from New Hampshire. He lives in the North End of Boston, and his hobbies include acoustic guitar, competing in various organized baseball leagues in and around Lowell, martial arts practice, and plenty of yoga. He is a member of the Chabad House of Boston and participates in religious and community activities in and around Boston. Attention Alumni! Earn CLE Credits at MSLaw Popular Topics Discounted Prices Hosted by the Massachusetts Bar Association and MSLaw s Alumni Bar Association Fall 2006 See the article on page 26 for more information 7

10 The Reformer Supreme Alumni Three MSLaw Alumni Sit on Steps of Nation s Highest Court 8 Many attorneys dream of arguing cases before the United States Supreme Court, though few ever do. MSLaw alumnus David Baker ( 96) will be one of those select few, while fellow alumni Geoff DuBosque ( 96) and Jay Markell ( 97) fell just short of joining him. Baker, who specializes in bankruptcy law, received word in June that the U.S. Supreme Court granted his Petition for Certiorari in the case of Marrama v. Citizen's Bank and Mark DiGiacomo, Ch. 7 Trustee, 430 F.3d 474 (1st Cir. 2005), affirming 313 B.R. 525 (1st Cir. BAP 2004). The BAP (Bankruptcy Appellate Panel) affirmed a bench decision by the Bankruptcy Court. The issue raised in the Petition is whether an individual who has filed a Chapter 7 Petition in the Bankruptcy Court has an absolute right to convert the case to one under another chapter. In this case, David's client, the debtor (Mr. Marrama), sought to convert his Chapter 7 case, in which his assets would be liquidated, to a Chapter 13 case, which would have allowed him to keep his property. The First Circuit ruled that the right to convert was not absolute, notwithstanding the legislative history of the Act. In his Petition, David pointed out that lower courts were divided on the issue, which historically has been a reason for the Supreme Court to grant Certiorari. David told The Reformer that many of his colleagues in the Massachusetts bankruptcy bar encouraged him to seek certiorari, as they felt that the result was unfair and incompatible with Congressional purpose and intent. In considering whether to file a Petition, the wide division of opinions around the country on the issue gave him a degree of confidence that the Petition would be granted. Not being one to back down from a good legal "fight," David took the plunge and filed the Petition. In his Reply to the Petition for Certiorari, even the Chapter 7 trustee, who had opposed conversion, acknowledged that the question presented is important and that there is a substantial split on the issue. In order to file a Petition, David had to be admitted to the Supreme Court Bar, a process that he describes as very simple and roughly equivalent to being admitted to practice in another state on motion; there is no written "test." The application required that two members of the Supreme Court Bar propose his admission and one of the two "move the Court" for admission. David is grateful to Dean Velvel for being one of the "proposers" and for moving for his admission. Although he felt confident about the Petition being granted, getting the formal order from the Clerk indicating that the Petition had been granted was an exhilarating experience and resulted in many calls of congratulations from colleagues. Although he has argued many appeals before the Bankruptcy Appellate Panel and the First Circuit Court of Appeals, he is looking forward to oral argument, tentatively scheduled for December 2006, at which he will have a truly once-in-a-lifetime experience. After graduation from MSLaw, David served as counsel to a chapter 13 trustee in Boston for about three years before striking out on his own. He is a member of the American Bankruptcy Institute and the National Association of Consumer Bankruptcy Attorneys, as well as the Boston and Massachusetts Bar Associations. Geoff DuBosque, who has been taking appellate assignments from The Committee for Public Counsel Services since 1998, received the appeal in Commonwealth v. William Foley in October At first glance, DuBosque thought the case was just another routine appeal: Foley had been convicted by a jury one month earlier for multiple counts of assault and battery and assault arising from a domestic incident. DuBosque thus focused on two issues: 1) the admission of excited utterances of Foley s wife through the testimony of police officers, and 2) the admission of Foley s statements allegedly made to the police after he was in custody. The facts in Foley are as follows. The police, who responded to Foley s home for a report of a domestic disturbance, testified that upon arrival, they saw broken furniture and Foley s wife and children in a bedroom. continued on next page

11 continued from previous page After the police arrested Foley and brought him outside, his wife made several statements that implicated him in a violent domestic assault. The police testified that Foley, while in custody in the police car, made an incriminating statement about the incident in response to the officer s statement, You seem pissed off. Are you having a rough day, man? Prior to trial, the Court ruled that the wife s statements would be admissible as excited utterances, even if she did not testify. Foley was convicted and sentenced and then came Crawford v. Washington. The facts and issues in Crawford were remarkably similar to those in Foley, so DuBosque argued that the trial court committed reversible error by admitting the wife s statements as excited utterances in violation of the defendant s rights under the Confrontation Clause of the Sixth Amendment. In August 2005, the Massachusetts Supreme Judicial Court ruled in Foley s favor and reversed his convictions. Although the Commonwealth filed a Petition for Writ of Certiorari to the U.S. Supreme Court, it was denied. DuBosque has handled more than 25 appeals and has argued before the SJC, Appeals Court, and the First Circuit Court of Appeals. While the majority of his practice is criminal, he also does some civil litigation as a partner in Nebenzahl/DuBosque, LLP, which has offices in Newburyport, Boston, and Sharon. In 2002, Jay Markell received an appointment to represent William J., a defendant who had pled guilty to conspiracy, money laundering, and possession of marijuana with the intent to distribute charges at a sentencing hearing in the U.S. district court in Boston. The rather complex facts in this case show that in 1999, the Drug Enforcement Administration (DEA) arrested Andre T. in California. The subject of a Los Angeles Police Department (LAPD) investigation, Andre first came to the DEA s attention because he had been supplying large quantities of marijuana across the country. The LAPD informed the DEA that two packages containing approximately 50 pounds of marijuana were being shipped from L.A. to Warwick, Rhode Island. William pled guilty to having been involved in a conspiracy to ship marijuana crosscountry, laundering the proceeds from sales using wire transfers to pass money, and possession of marijuana with the intent to distribute. He also pled guilty to aiding and abetting this enterprise, which involved other co-defendants. The Presentence Report (PSR) recommended a fourlevel enhancement to William s sentence based upon a supposed leadership role by William, along with a co-defendant (Shawn M.), for allegedly leading a drug and money laundering conspiracy of five or more persons. William filed timely objections to the PSR, vigorously disputing the allegations that he was a leader or organizer of a conspiracy of five or more people, which triggered an evidentiary hearing pursuant to U.S.S.G. 6A1.3., i.e., Resolution of Disputed Facts. At the hearing, only one witness, a DEA agent, testified for the government. There were no civilian witnesses despite the fact that the government s entire case was essentially comprised of statements that the government said civilian witnesses made. Willam s cousin is alleged to have told the DEA that the defendant and codefendant were partners in marijuana distribution. Other people alleged to be involved in the conspiracy supposedly told the DEA that in 1998 or 1999, William and Shawn arranged to transfer $74,600 to California through others, who understood the money to be William s and Shawn s. The government also asserted that a local UPS driver would receive parcels of marijuana to aid in transfers. Similarly, other conspiracy members would have wired money totaling more than $50,000. At the sentencing hearing, the DEA agent admitted he personally had done nothing to see that Andre was brought in to testify at that hearing, and he didn't know if the government had summonsed Andre to appear. Nonetheless, the Court relied on the agent s testimony, including statements allegedly made by hearsay declarants, for sentencing purposes. As a result, the petitioner received a four-point enhancement to his sentence. This four-point enhancement meant that under the Federal Sentencing Guidelines, William had 18 months added on to his sentence. While the government claimed that Andre told the DEA that the defendant had rented an apartment in Los Angeles to oversee operations, the DEA agent admitted there Fall 2006 continued on next page 9

12 The Reformer 10 continued from previous page was no evidence that he rented an apartment. While Andre was under surveillance, he was seen going into two apartments and had two sets of keys to two different apartments. Andre claimed he had met with Shawn but could not pick him out of a photo array. The DEA agent testified that the UPS driver had claimed to have met the defendant in person but admitted that he could not pick him out of photo array. The government acknowledged there were limits to what it could it prove. The government also admitted it could not say whether the group was pooling its assets or whether it was sharing its funds, which the government acknowledged would be important to show a group conspiracy. The government also conceded the hierarchy was unclear. The District Court overruled the defendant's objections to the PSR and enhanced his sentence for conspiracies with respect to Counts 1 and 4 for leadership roles in money laundering and conspiracies to possess marijuana with intent to distribute, pursuant to U.S.S.G. 3B1.1(a). During the pendency of this appeal, the United States Supreme Court decided Crawford v. Washington. In Crawford, the Court overruled its holding in Ohio v. Roberts, 448 U.S. 56 (1980), in which the court determined that hearsay would be admissible if it fell within some "firmly rooted hearsay exception" and it bore some adequate indicia of reliability. Crawford highlights the intractable problem with the Roberts test because it allows a fact finder "to hear evidence, untested by the adversary process based upon a mere judicial determination of reliability. It thus replaces a constitutionally prescribed method of assessing reliability with a wholly foreign one." The problem presented in William s case was that a conflict arose during the sentencing hearing because the Resolution of Disputed Facts states that: When any factor important to the sentencing determination is reasonably in dispute the Court may consider relevant information without regard to its admissibility provided that the information has sufficient indicia of reliability to support its probable accuracy [W]hile hearsay may be considered, unreliable allegations shall not be considered. United States v. Ortiz, 993 F.2d 204 (10thCir. 1993). William petitioned the First Circuit for Reconsideration of its decision upholding the conviction, based on Crawford. On October 25, 2005, the Court of Appeals for the First Circuit denied the petition for reconsideration, and on January 10, 2006, William filed his Petition for a Writ of Certiorari with the United States Supreme Court, seeking review of this issue, among others. William's view was that an inability to cross-examine a hearsay declarant at a sentencing hearing under certain circumstances shifts the burden of proof of a sentencing enhancement factor to the defendant. That burden rests with the government at all times; it is never supposed to shift to the defendant. U.S. v. Brown, 52 F.3d 415 (2nd Cir. 1995). Based on Crawford s reasoning, William believed that this burden of proof did shift, which violated his due process rights under the Fifth Amendment to the Federal Constitution. On February 21, 2006, the Petition for a Writ of Certiorari was denied. Markell s view is that because the United States Supreme Court is still trying to deal with what constitutes "testimony," the Court simply wasn't ready to decide this issue. Jay Markell is a solo practitioner in Atkinson, New Hampshire.

13 MSLaw to Host 5th Annual Civil War Conference For the last four years, MSLaw and the Blue and Gray Education Society (BGES) have presented programs on the Civil War so that Americans can learn more about the North's position and actions. MSLaw's fifth annual conference will take place at the law school on Saturday, September 30, and Sunday, October 1. The speakers will include leading experts on Civil War subjects. "This program is for persons who are interested in fascinating talks about an utterly fascinating period in American history," Dean Lawrence Velvel said. "As Abraham Lincoln knew would be true, post Civil War generations, including our own, can learn a lot that is relevant to their own day by studying the Civil War. For almost every type of problem people can face had to be faced and overcome then." The annual conferences at MSLaw are noteworthy because they focus on the North's viewpoints and contributions. Velvel, who has studied the Civil War, observed that most of the numerous annual conferences held over the past 40 years have taken place in the South, have catered to a primarily Southern audience, and generally discussed Southern actions and heroes. Dean Velvel thought that it was important to present conferences that looked through a Northern lens. When he discussed this with Len Riedel, chief executive officer of the BGES, they decided to address the imbalance. The annual conference at MSLaw is the result of that conversation. "We are so completely imbued with the Lost Cause, the Southern point of view, rebellion, and states' rights that we have forgotten that better than half the country totally repudiated and disagreed with that point of view," said Riedel. "And nobody talks about that. Because the North won the war that's a fact because the country was reunited that's a fact we moved on and we dealt with other things. And we never sat down to ask, was the South wrong? Were they the ones that were off the reservation? Did the North, in fact, have a better view of what this was about? And so, that's why we started these programs." The two-day symposium includes lunches each day and one continental breakfast. The price for the general public is $120, but alumni can attend for a discounted price of $70. Those who are interested in attending this educational conference should contact Kirby Smith at (978) or Fall 2006 President Lincoln speaking at last year s conference 11

14 The Reformer The SJC Confronts Crawford: Conflict or Conformity? By Constance Rudnick, Esq. When the United States Supreme Court decided Crawford v. Washington 1 in March of 2004, both practitioners and academics knew that the landscape surrounding the admission of hearsay in criminal cases was about to change. And, knowing the independence of the Massachusetts Supreme Judicial Court, it should not be a surprise to Massachusetts attorneys that its case law construing the momentous decision has taken a path that diverges from those taken by many other jurisdictions. In Crawford, the Supreme Court held that outof-court testimonial statements are inadmissible at a criminal trial if the declarant is unavailable for cross-examination and the accused had no pretrial opportunity to cross-examine the witness. Referred to by some as the "rediscovery" of the confrontation clause, Crawford intentionally did not resolve the issue of what constitutes a "testimonial" statement beyond "prior testimony at a preliminary hearing, before a grand jury, at a formal trial; and [] police interrogations." 2 Massachusetts Cases Defining Scope of Crawford In Commonwealth v. Verde, 3 the SJC was called upon to deal directly with Crawford's impact on Massachusetts law. In Verde, the SJC held that a "drug certificate is akin to a business record and the confrontation clause is not implicated by this type of evidence." 4 That decision was uncontroversial when rendered and is less so now. Justice Ireland's opinion noted that the Court's holding, that public records are an exception to the confrontation clause and its attendant consequences dictated by Crawford, was supported by other jurisdictions. 5 The Court began to carve out its own, arguably novel, approach to Crawford in Commonwealth v. Gonsalves. 6 In Gonsalves, the defendant was charged with assault and battery by means of a dangerous weapon. The complainant, who was unavailable at trial, made statements to a police officer describing the manner in which her boyfriend, the accused, had attacked her. Prior to trial in the District Court, the Commonwealth sought to obtain a ruling, in limine, that these statements were admissible as "excited utterances." Following a preliminary pretrial hearing on this issue, the trial judge ruled they could be introduced in evidence. The defendant then moved for reconsideration based upon Crawford. By that time, the complainant had invoked her right against self-incrimination. After a supplemental hearing, the trial judge reversed U.S. 36 (2004). 2 Id. at 68. See Michael Graham, Special Report: Crawford v. Washington, 42 No. 1 Crim. L. Bull. 4 (2006) Mass. 279 (2005). 4 Id. at Id. at 284 n.4 (citing cases in Alabama, California and Oregon). However, the SJC acknowledged that two courts in Nevada and New York had found to the contrary. Id. And, the holding in Verde was squarely rejected by State v. Crager, 2005 WL , at *7 (C.A. Ohio, December 27, 2005)("[U]pon review of the business-records exception and the applicable case law surrounding the issue, we find that while some evidence may fall within the general business-records exception, other business records should nonetheless be subject to a Crawford analysis and be excluded from evidence thereunder because they are in fact testimonial."). Notwithstanding some dissent, the SJC's rule appears to be the prevailing one. See, e.g., People v. Hinojos-Mendoza, 2005 WL , at *3 (Colo.App. 2005)(asserting that "[a] majority of jurisdictions hold that laboratory reports and similar documents are nontestimonial business records," [citations omitted]). For a comprehensive treatment of cases applying Crawford in this and other contexts, see Jerome Latimer, Confrontation After Crawford: The Decision's Impact On How Hearsay Is Analyzed Under The Confrontation Clause, 36 Seton Hall L. Rev. 327, (2006) Mass. 1 (2005), cert denied, _ U.S. _, 126 S. Ct (2006). 12

15 his earlier ruling, and held that Crawford barred the out-of-court statements of the alleged victim, who was unavailable and had not been crossexamined. In ascertaining the scope of statements covered by Crawford, the SJC first noted the three "core class[es]" of testimonial statements described by the majority in that case: [1] "ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially"; [2] "extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions"; [or, 3] "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." [Internal cites omitted.] 7 After commenting that the Supreme Court failed to define the "common nucleus" shared by these classes, the SJC set about formulating its own test for identifying out-of-court statements subject to Crawford. In doing so, the Gonsalves Court seized especially upon two statements in the Supreme Court case. First, it focused on the majority's comment that "[w]hatever else the term ['testimonial'] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to [statements procured through] police interrogations." 8 Second, it noted "the Crawford Court cautioned that it "use[d] the term 'interrogation' in its colloquial rather than any technical legal, sense... 9 Thus, the SJC declined to adopt a technical, narrow construction of the term "interrogation," such as that employed in the Miranda case, holding instead that the word "must be understood expansively to mean all law enforcement questioning related to the investigation or prosecution of a crime." 10 The SJC arguably went even further, adopting a per se approach for all police questioning, except that employed to secure a volatile scene or to establish the need for or provide medical care. 11 As the SJC recognized, however, that definition still left a large variety of statements outside the per se classification. As to those beyond the parameters of statements which constitute interrogation per se, including statements made to persons other than law enforcement, or those uttered spontaneously, the Court returned to its interpretation of the terms "core class" and "common nucleus" set forth by the Supreme Court in Crawford. 12 Ultimately, it adopted an objective belief test. That is, if the statement is made under circumstances which would lead a declarant to reasonably believe that it might be used in investigating and prosecuting a crime, then it is testimonial and subject to the constraints of Crawford. 13 The SJC then described the procedure to be followed by trial judges determining a Crawford issue: First, the judge must determine whether the statement is part of an affidavit, deposition, confession, or prior testimony at a preliminary hearing, before a grand jury, or at a former trial, or if it was procured through law enforcement interrogation (which does not include emergency questioning by law enforcement to secure a volatile scene or determine the need for or provide medical care). If so, it is per se testimonial and the confrontation clause applies. The statement is inadmis- 7 Gonsalves, 445 Mass. at 6 (citing Crawford, 541 U.S. at 51-52). 8 Id. (citing Crawford, 541 U.S. at 68). 9 Id. 10 Id. at Id. 12 Id. at Id. at In reaching this conclusion, the Court relied upon a number of federal court cases, including United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004), and United States v. Saget, 377 F.3d 223, (2d Cir. 2004), cert. denied, 543 U.S (2005). It is interesting to note, as the SJC did, that these cases present several variations of the definition. Saget says the inquiry is "whether a declarant would reasonably believe that his or her statement might be used at trial." Saget, 377 F.3d at Cromer uses the following language: "whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime." Cromer, 389 F.3d at 675. United States v. Summers, 414 F.3d 1287, 1302 (10th Cir.2005), uses the disjunctive rather than the conjunctive employed in Cromer, although the SJC in a footnote avers that it sees no appreciable difference in those two definitions. Id. at 12 n.6. Fall

16 The Reformer sible unless the declarant testifies at trial or formally is unavailable and previously was subject to cross-examination. If the statement is not per se testimonial, the judge still must conduct a further fact-specific inquiry regarding whether a reasonable person in the declarant's position would anticipate the statement's being used against the accused in investigating and prosecuting the crime. As we have indicated above, judges are well suited to conduct this inquiry with respect to statements made to a police officer engaged in the community caretaking function or while securing a volatile scene. If the judge concludes the statement is testimonial, the confrontation clause governs its admissibility. The statement is inadmissible unless the declarant testifies at trial or formally is unavailable and previously was subject to cross-examination. If [the] judge finds that an out-of-court statement is not testimonial, then the Commonwealth's rules of evidence alone govern admissibility, usually in relation to hearsay. 14 The SJC recognized the practical effect this new ruling would have on the prosecution of certain crimes. No longer would the Commonwealth be able to rely on out-of-court statements of witnesses who could not or would not testify at trial. And, the SJC acknowledged that domestic violence and gang-related cases might be most significantly affected by the ruling. Nonetheless, it said, the dictates of the confrontation clause compel the result, and trial strategies would have to be adjusted accordingly. 15 In the end, the Court concluded that the absent witness' statements made to the police in the Gonsalves case were testimonial, but those made to her mother were not. 16 Because the trial judge did not consider that any of the statements were subject to Crawford, the Court remanded the case for further evidence on and consideration of that issue. 17 Since Gonsalves, appellate courts of the Commonwealth have had several opportunities to address the scope and application of that case's construction of Crawford to Massachusetts cases. In Commonwealth v. Foley, 18 decided the same day as Gonsalves, the SJC held that the police officer who first entered the scene following the 911 call for help 19 could testify as to statements made by one of the defendant's children responding to the officer's question as to the perpetrator's whereabouts. However, the Court ruled that statements made by the defendant's wife, the alleged victim, to police officers more than 40 minutes after law enforcement arrived at the scene and after the defendant had been arrested and removed from the premises, should not have been admitted, and their introduction at trial created a substantial risk of a miscarriage of justice. 20 The distinction in results turned on the fact that at the time the initial questions were posed, the police were attempting to secure the scene, ascertain the whereabouts of the perpetrator, and assess the need for medical attention needed by any victim. In contrast, the second statements were clearly made in response to interrogation that any person would have thought would be used in the prosecution of the accused Id. at Id. at 14. The SJC rejected the Commonwealth's contention that Gonsalves involved spontaneous utterances, noting that the constitutional rule of crossexamination trumps common law evidentiary doctrines, and therefore, if a statement that would have been admissible under that exception to the hearsay rule fell into the ambit of Crawford, then that case would apply. Id. at Id. at Id. at Mass (2005), cert denied., _ U.S. _, 126 S.Ct (2006). 19 The issue of whether the content of 911 calls themselves is admissible has not been conclusively resolved in Massachusetts. In Commonwealth v. Jackson, 20 Mass. L. Rptr. 149, 2005 WL (Mass. Super. September 16, 2005), Superior Court Judge Fabricant excluded the contents of the call. Although the statements made to a 911 operator fell squarely within the "volatile scene" exception to the per se rule, "Ms. Lutz's tone and words make clear that her purpose was not to facilitate investigation or prosecution, but to seek help in a situation of perceived danger. Nevertheless, she reported what a reasonable layperson would have recognized to be a crime, and gave the limited information she had to describe that person and his apparent location at the time of the call. A reasonable person, having given that information, would expect that police would search the surrounding area in an effort to find the intruder, and if successful, would initiate prosecution." Id. at * Mass. at Although the Sixth Amendment Confrontation Clause issue was not raised at trial, the SJC nonetheless addressed it under the "substantial risk of a miscarriage of justice" standard. 445 Mass. at Id. at

17 In Commonwealth v. Tang, 22 the Appeals Court addressed the admissibility of statements made by the defendant's young son to a police officer shortly after the alleged criminal event. At the trial, which occurred prior to the Supreme Court's decision in Crawford, the judge permitted a police detective to testify as to the boy's statements that the defendant had fired two shots, even though the child was not a witness at trial, on the grounds that the statements fell within the excited utterance exception to the hearsay rule. The Supreme Court decided Crawford while the appeal was pending. The Appeals Court upheld the trial judge, ruling the statements were not testimonial per se, because they were made in the course of securing the scene, determining who, if anyone, remained on the premises, and whether the boy himself had been a victim. And, the Court said, a child in the frantic condition of the declarant would not likely believe that his statements would be used against the accused at trial, and therefore, the statements were properly admitted as spontaneous utterances not subject to Crawford. 23 In Commonwealth v. DeOliveira, 24 the SJC reversed the trial judge's ruling that statements made by the alleged victim of a child rape to an emergency room physician were inadmissible as violative of Crawford. The statements in DeOliveira were made by the alleged victim at the hospital, following lengthy questioning conducted by a DSS social worker at the child's home during which she described incidents of sexual abuse perpetrated by the defendant. 25 At an evidentiary hearing on the Commonwealth's Motion to Reconsider the Defendant's Motion in Limine to exclude the evidence, the doctor testified that children are frequently brought to the hospital by police officers following response to an emergency. "First responders," he said, convey information they have obtained to the physician to assist him or her in ascertaining the patient's medical problem, which "must then be verified, if at all possible, with the patient or a family member." 26 "The doctor stated that, each time he examines a patient, he is aware of the possibility that he might be summonsed to testify about his findings in a criminal case, but that this awareness does not affect the manner in which he treats a patient under his care. He testified that he works '[a]bsolutely' independently of the police, and he repeatedly emphasized that the purpose of his examination of [the alleged victim] was to determine whether there has been sexual abuse, whether the child was injured, and whether she needed medical treatment." 27 The physician testified he could not recall if a police officer was present during the examination, but he very much doubted that was the case. 28 The SJC first acknowledged the long-standing evidentiary rule "that physicians may testify as to statements of symptoms and conditions made to them for purposes of medical diagnosis or treatment." 29 However, it is equally well established that such testimony cannot make reference to facts establishing the defendant's guilt. 30 Next, the Court applied its two-prong approach developed in Gonsalves. Since the statements were not made to police, they did not fall into the per se category. 31 The proper standard, therefore, was whether "the circumstances in which the statement was made would lead an objective witness reasonably to believe that the statement would be used at a Mass. App. Ct. 53 (2006). See also Commonwealth v. Rodriguez, 445 Mass (2005) (holding statements made by victim and his sister to police officers responding at the scene to a 911 call were testimonial). 23 The Court refused to remand the case for a voir dire of the child to inquire as to his competency finding nothing in the spontaneous utterance cases to require an evidentiary hearing to establish that fact, particularly where, as in this case, the defendant's challenge to the witness' competency was based upon "amorphous matters." Id. at Further, the Court did not seem to address or be concerned with the problem of retroactivity of the doctrine. The United States Supreme Court, on the other hand, apparently considers the issue sufficiently critical to have granted certiorari to resolve it. See Bockting v. Bayer, 408 F.3d 1127 (9th Cir. 2005), cert. granted sub nom. Whorton v. Bockting, _ U.S. _, 126 S.Ct (2006) Mass. 56 (2006). 25 The trial judge disallowed the testimony of the social worker as well. Id. at *3. It does not appear that ruling was appealed. 26 Id. at *2-*3. 27 Id. 28 Id. at *3. 29 Id. at *4. 30 Id. In this case, therefore, the trial judge expressly redacted the child's reference to the fact that "her daddy" (the mother's live-in boyfriend charged in the case) committed the sexual acts she described. Id. 31 Id. at *5. The Court concluded there was no evidence to support the contention that police were present during the examination or that the physician was operating as an agent of law enforcement at the time Fall

18 The Reformer later trial." 32 Citing a number of cases in other jurisdictions in which statements by child-victims during medical examinations have been held admissible notwithstanding lack of cross-examination and unavailability of the witness, the SJC concluded that the victim "could not have anticipated that her statements might be used in a prosecution against the defendant. On this record, there is nothing to indicate that [the victim] even recognized the criminality of the defendant's sexual contacts with her. [Footnote omitted.]" 33 Thus, the redacted statements the victim made to the physician did not violate the defendant's right of cross-examination and were admissible at trial. 34 In Commonwealth v. Williams, 35 the Appeals Court reversed a ruling of the trial judge admitting two separate statements of the alleged victim given to police officers in the apartment where the alleged assault occurred. The initial statement was given after the officer apparently had ascertained, from observations and questioning, that no emergency medical treatment was necessary and while the putative defendant was with another police office downstairs in the entryway to the apartment building. The second, more detailed report was made to two investigating officers after the defendant was placed under arrest. The victim did not testify. Failing to find that either questioning was to secure a volatile scene or to establish the need for medical care, the court ruled that neither statement should have been admitted and the conviction should be reversed. 36 Other Exceptions to Crawford in Massachusetts State Courts As expected, Massachusetts courts have carved out other exceptions to the potentially expansive reach of the Crawford doctrine. For example, in Commonwealth v. Wilcox, 37 the SJC held that Crawford did not apply to a probation revocation hearing, because the confrontation clause did not apply to those proceedings. 38 In Commonwealth v. Colon, 39 the Appeals Court confirmed the Sixth Amendment right of confrontation is a trial right and was not available at a motion to suppress. 40 Additionally, Massachusetts courts are clearly disinclined to apply Crawford to documentary evidence, particularly official or medical records. In Commonwealth v. Lampron, 42 the Appeals Court held that medical records reflecting the defendant's blood alcohol and drug content and the fact that an odor of alcohol was detected were admissible, because "a reasonable person in the declarant's position" would not anticipate that the statement would be "used against the accused in investigating and prosecuting a crime." 43 Although the Lampron Court distinguished Commonwealth v. Verde, 44 in which the SJC ruled that the confrontation clause was not implicated in drug certificate evidence, it ultimately reached the same result. 45 In Commonwealth v. Edwards, 46 the Supreme Judicial Court held that "a defendant forfeits, by virtue of wrongdoing, the right to object to the admission of an unavailable witness's out-of-court statements on both confrontation and hearsay grounds on findings that (1) the witness is the statements were uttered. The fact that police transported the victim and her mother to and remained at the hospital during the doctor's examination was insufficient on this issue. Id. 32 Id. at *5. 33 Id. at *6. 34 It is interesting that at the beginning of the Court's opinion, Justice Greaney, writing for the Court, says that the statements are not "testimonial" because they "were made for the purposes of medical evaluation." Id. at *1. The use of the word "purpose" becomes significant in comparing the SJC's approach to Crawford with recent United States Supreme Court cases construing that doctrine. See infra note 51 and accompanying text Mass. App. Ct. 9 (2005). 36 Citing Foley, the Appeals Court held that although the Sixth Amendment Confrontation Clause issue was not raised at trial, the trial judge's ruling created a "substantial risk of a miscarriage of justice." Id. at Mass. 61 (2006). 38 Accord Commonwealth v. Nunez, 446 Mass. 54 (2006) Mass. App. Ct (2006) Mass. App. Ct n.1 (2006). 41 But see cases cited supra note Mass. App. Ct. 340 (2005) 43 Id. at 345 (quoting Gonsalves, 445 Mass. at 11). See also Commonwealth v. Verde, 444 Mass. 279, (2005), in which the SJC ruled that the confrontation clause is not implicated in drug certificate evidence Mass. 279, (2005). 45 Accord Commonwealth v. Crapps, 64 Mass. App. Ct (2005) (record of prior conviction, certified pursuant to Mass. Gen. Laws ch. 233, 76 is not subject to Crawford) Mass. 526, 542 (2005). 16

19 unavailable; (2) the defendant was involved in, or responsible for, procuring the unavailability of the witness; and (3) the defendant acted with the intent to procure the witness's unavailability. A defendant's involvement in procuring a witness's unavailability need not consist of a criminal act, and may include a defendant's collusion with a witness to ensure that the witness will not be heard at trial. [Footnotes omitted.]" 47 The SJC rejected the contention that article 12 of the Massachusetts Declaration of Rights gives more protection than the Sixth Amendment, and therefore the right of confrontation under the Massachusetts Constitution should not permit operation of the forfeiture doctrine. It held that the Commonwealth must prove that the defendant procured the unavailability by a preponderance of the evidence, and the issue ought to be resolved at an evidentiary hearing. 48 Last, but certainly not least, is the state of the excited or spontaneous utterance doctrine in Massachusetts following Crawford. The importance of this unresolved issue, while apparent, is heightened by the fact that many courts have determined that 911 calls fall into this category. 49 As the above cases demonstrate, the evidentiary doctrine is still viable in Massachusetts, 50 although severely limited in practice, since all 911 calls, and many spontaneous statements made under stress following a traumatic event, are in fact, made to police officers (or their agents). The Supreme Court Updates Crawford In June 2006, the Supreme Court decided Davis v. Washington and Hammon v. Indiana, 51 two cases addressing the effect of Crawford on 911 calls and statements made to police at the crime scene. In Davis, 52 the alleged victim 53 called 911, and reported, in response to the operator's questioning, that she had been beaten by the defendant who had just left the residence in a car with another person against whom the caller had a protective order. Two police officers responded within four minutes of the 911 call. They noted that the victim was upset and had what appeared to be fresh injuries on her forearm and her face. The officers observed her gathering her belongings and her children so that they could leave the residence. Davis was charged with one count of felony violation of the provisions of a domestic no-contact order under Washington law. The State's only witnesses were the two police officers. Both officers testified that the victim's injuries appeared to be recent, however neither could testify as to their cause. The victim did not testify at trial. Despite her initial cooperation with the prosecutor, the State was unable to locate her for trial. The only evidence linking Davis to the victim's injuries was the tape recording of the 911 call. The defense argued that admission of the 911 tape would violate Davis's right of confrontation. The trial court admitted the tape under the excited utterance exception to the hearsay rule. On appeal, the Washington Court of Appeals affirmed the judgment holding that, under Ohio v. Roberts, 54 the victim's 911 call was properly classified as an excited utterance and, as such, was sufficiently reliable so that admission of an audiotape of the call did not violate Davis's right to confront adverse witnesses. 55 Before Davis's appeal to the Washington Supreme Court was heard, the United States Supreme Court decided Crawford, which reversed its previous holding in Roberts. The Washington Supreme Court held that Crawford held that the admissibility of hearsay evidence of the 911 call depended on whether the victim's statements were testimonial or nontestimonial in nature, which must be determined on a case-by-case or statement-specific basis. 56 In Davis, the Washington Supreme Court found that the statements of the victim identifying the assailant were distinguishable from the in-custody statements at issue in Crawford, were nontestimonial, and any error in admitting the rest of the 911 call was harmless beyond a reasonable doubt. The 47 Id. at Id. at In Gonsalves, the SJC specifically refused to decide the fate of statements made during 911 phone calls. 445 Mass. at 13 n See supra note 22 and accompanying text. 51 _ U.S. _, 126 S.Ct (2006). 52 Decision below, 154 Wash. 2d 291 (2005). 53 She will be referred to hereafter as "the victim." U.S. 56 (1980) Wash. App. 81, (2003) Wash. 2d 291, (2005). Fall

20 The Reformer Washington Court commented that the circumstances surrounding a 911 call are generally stressful, resolving that the ultimate question must be whether the declarant knowingly provided the functional equivalent of testimony to a government agent. 57 In Hammon v. Indiana, 58 two police officers responded to a domestic disturbance call at the home of Amy and Hershel Hammon. After noticing fragments of glass from a heating unit's front glass panel on the floor in the living room, one officer questioned Hershel as to what happened prior to the officers' arrival. Hershel said that he and his wife had "been in an argument" but that the argument was over, and it "never became physical." 59 While one officer remained with Hershel, the other went to question Amy. Hershel attempted to intervene in the officer's questioning of Amy, but he was rebuffed. She told the officer that Hershel "threw her down into the glass of the heater." She also said that Hershel "shoved her head into the broken glass of the heater and that he had punched her in the chest twice." Following Amy's statements, the police had Amy complete and sign a battery affidavit that recounted the allegations. 60 Hershel was charged with domestic battery. Because he was on probation, the alleged battery violated the terms of his probation, and the alleged probation violation and battery were tried together at a bench trial at which Amy was not present. Hershel objected to the admittance of Amy's statements, both oral and written. The trial judge admitted Amy's oral statements under the so-called excited utterance exception to the hearsay rule. Additionally, Amy's affidavit was admitted into evidence. Hershel claimed that he did not have the ability to confront Amy as required under the Sixth Amendment. 61 Again, the Supreme Court's decision in Crawford was issued while Hershel's appeal was pending before the Indiana Supreme Court. Nonetheless, that Court upheld the trial judge's ruling that the statements were admissible as excited utterances, which are not necessarily testimonial under the confrontation clause. 62 The Indiana Court also distinguished the circumstances in which the statements in Hammon were given from those surrounding the statements in Crawford, noting that interrogation in the latter case involved attempts by the police to "to pin down and preserve statements rather than efforts directed to determining whether an offense has occurred, protection of victims or others, or apprehension of a suspect." 63 That Court concluded: [A] "testimonial" statement is one given or taken in significant part for purposes of preserving it for potential future use in legal proceedings. In evaluating whether a statement is for purposes of future legal utility, the motive of the questioner, more than that of the declarant, is determinative, but if either is principally motivated by a desire to preserve the statement it is sufficient to render the statement "testimonial." If the statement is taken pursuant to established procedures, either the subjective motivation of the individual taking the statement or the objectively evaluated purpose of the procedure is sufficient...we think the "use in legal proceedings" test is consistent with other language in Crawford. 64 The Supreme Court's joint opinion in the two cases was written by Justice Scalia, as was Crawford. It began by recounting that Court's holding in Crawford and the limitations of that decision as imposed by the facts then presented. Because the statements in that case were so clearly the product of police interrogation, it was, Scalia said, unnecessary to define that term any further except to say the Court used it "in its colloquial, rather than any technical, legal sense." 65 The Court then announced a definition of "interrogation" sufficient for the purposes of deciding the two cases at hand: "Statements are nontestimonial 57 Id. The dissent criticized the majority for suggesting, while not holding, that a relevant factor is the subjective intent of the absent witness to provide information to be used in an accused's prosecution, rather than an objective evaluation of whether a reasonable person would know that their statements could be used in a prosecution. Id. at Decision below, 829 N.E.2d 444 (2005). 59 Id. at Id. 61 Id. 62 Id. at Id. at Id. at U.S. at 53 n.4. 18



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