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Wednesday, December 12, 2007
Two new CAAF Opinions: CAAF Joins the Pack in Pack
Two new CAAF opinions today, Othuru and Pack. CAAF unanimously finds no violation of the accused's right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004) in both cases (and finds no unreasonable appellate delay in Othuru). CAAF joins many other courts in holding that post-Crawford there is no Sixth Amendment violation in the use of remote testimony by a child witness in a criminal trial. CAAF's rationale, like the other cases CAAF cites, is direct Supreme Court precedent finding remote testimony by a child witness in a criminal trial constitutional. See Maryland v. Craig, 497 U.S. 836 (1990). More from CAAFlog tonight, I am sure.
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9 comments:
From the standpoint of a concerned parent, let me begin by saying that I agree with Craig and, therefore, Pack. But, at the end of the day, are these opinions really loyal to 6th amendment concerns, or are they essentially saying, "Well, pederasts are bad so the 6th amendment will yield." Pretty rare to let a constitutional question turn on the nature of the crime, no?
What a strange basis for a decision, Supreme precedent on point.
The problem is Craig really did focus almost exclusively on the continued "reliability" of remote testimony. While I don't think the SC will overturn Craig, there are some well-written law review articles on why they should in light of Crawford. This is simply a continuation of the chaos created by Crawford. Can you image if a lower Court issued an opinion that, overturned an entire body of case law, yet left so many substantive issues unresolved? 10 pages on Marian law, and nothing on the continuing application of Craig.
I just noticed I left the word "prejudicial" out of the post, between the words "unanimously funds no" and "violation.". In Othuru CAAF agreed with NMCCA that the violation was harmless beyond a reasonable doubt. Pardon my not so accurate wording.
OK, so SCT precedent says overrule by implication is disfavored...got it. But, on the other end of the spectrum, you can't expect the SCT to address every case, every factual scenario...utter dicta...utter dicta...So, that's where I see this case departing from that principle of law.
As a parent, one should be concerned when explicit constitutional rights are abrogated when they conflict with "public policy." I don't think that any citizen wishes to encourage the molestation of children, or to make the prosecution of such individuals any more difficult for a child than is required by statute and the Constitution. But subjecting the constitutional rights of any group to public policy concerns is nothing short of terrifying. Since Craig based its decision on the Roberts reliability test, which WAS explicitly rejected by the Court in Crawford and again in Davis, in concert with public policy, the amorphous notion of public policy alone now safeguards our right to confront our accusers.
Nevertheless, I cannot disagree with the Court's conclusion that it cannot decline to follow Craig. The Supreme Court itself will have to overrule Craig and, judging from the denial of certiorari of two or three of the state court decisions cited by the CAAF, Justice Scalia may not have enough votes. Hopefully he and his like minded justices have just been waiting for a case where the issue was properly preserved.
But, where's the intersection of dicta and holding on this issue?
REQUEST FOR NEW TOPIC! Ok, now that I've got your attention, how about a topic on CAAF's workload. Much has been made recently of SCOTUS's declining docket. I don't know if CAAF's docket is declining or not, but lets face it, they ain't burning the midnight oil if you know what I mean. Based on the number of opinions they churn out, I should hope the judges are scratch golfers. Anyone have confirmation on this?
Makin' out,
Why you son of a bitch. Why don't you just come out and disparage our trial judiciary, why don't you? I'll leave it at this: your lucky I don't know who you are, but I'm here big boy, if you want some....come get it son.
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