Wednesday, June 20, 2007

New CAAF opinion

CAAF's web site includes a link to a new opinion in United States v. Foerster, No. 07-0093/AR. But the link doesn't work on my computer -- my Adobe Reader opens up, but I get a message saying the file is damaged and couldn't be repaired. Can anyone else open it?

6 comments:

John O'Connor said...

In a check theft case, an affidavit by the owner of teh checking account that the use of the checks was unauthorized was not "testimonial" under Crawford v. Washington where the affidavit was required by internal bank procedures in order to reimburse the account holder and had no investigative purpose. Therefore, it could be admitted as a business record. Judge Ryan for a unanimous court. Snore.

CAAFlog said...

JO'C, did you open it off of CAAF's web site? I still can't get it open. Can you e-mail it to me?

John O'Connor said...

For you, pal, I'll try.

John O'Connor said...

The email address I have for you is apparebntly no good. I sent a PDF to No Man and asked him to send it to you through whatever anarchist communication network you folks use.

CAAFlog said...

Thanks, JO'C -- the relay just got it here!

Regina said...

I'm very surprised that the CAAF did not use Foerster to announce the death of Confrontation Clause scrutiny of nontestimonial hearsay. Though the CAAF discussed Whorton v. Bockting, they did not address the Court's discussion regarding Confrontation Clause scrutiny of nontestimonial hearsay. In Whorton, 127 S. Ct. 1173, 1183 (2007)the Court makes it clear that nontestimonial hearsay is no longer subject to Confronation Clause scrutiny. This opinion is in direct conflict with the CAAF's decision in United States v. Scheurer, 62 M.J. 100(2005). On page 106 of this opinion, the CAAF opined that "the Ohio v. Roberts requirement for particularized guarantees of trustworthiness continues to govern confrontation analysis for nontestimonial statements." This issue, of course, had previously divided both state and federal courts.

While the Court's opinion in Whorton is binding on Article III courts, it is not necessarily binding on the CAAF -- See Judge Gierke's article in the August 2005 edition of the Army lawyer for a detailed discussion on this issue.

However, the above said, can anybody think of a reason why the CAAF would continue to subject nontestimonial hearsay in trials by courts-martial to Confrontation Clause scrutiny?