Comments on: Second Circuit on Crawford http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/ Fri, 21 Nov 2008 05:19:45 +0000 http://wordpress.org/?v=2.6.3 By: Scott Greenfield http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7270 Scott Greenfield Fri, 26 Oct 2007 01:10:17 +0000 http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7270 The absence of any discussion of Bruton in the decision makes me think that it was simply not raised by the defendant. The circuit cannot, otherwise, simply dismiss its existence. I'm not buying any sub silentio incorporation of Bruton into Crawford. It just can't be. The absence of any discussion of Bruton in the decision makes me think that it was simply not raised by the defendant. The circuit cannot, otherwise, simply dismiss its existence.

I’m not buying any sub silentio incorporation of Bruton into Crawford. It just can’t be.

]]> By: Gideon http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7269 Gideon Fri, 26 Oct 2007 00:36:46 +0000 http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7269 [quote comment="7264"]While both are confrontation clause based, one is a rule of general application, the other specific. One has a remedy of severence, the other preclusion. They may overlap under certain circumstances, but are not functional equivalents. See <a href="http://confrontationright.blogspot.com/2006/02/crawford-and-bruton-any-relation.html">Confrontation Blog </a> and <a href="http://indignantindigent.blogspot.com/2006/02/ad4-bruton-and-crawford-violations.html">Indignant Indigent</a>[/quote] I don't think I said they were functional equivalents. I think in the case above, both Bruton and Crawford are implicated; why the Court did not address Bruton is the question. [quote comment="7264"]While both are confrontation clause based, one is a rule of general application, the other specific. One has a remedy of severence, the other preclusion. They may overlap under certain circumstances, but are not functional equivalents.

See Confrontation Blog

and Indignant Indigent[/quote]

I don’t think I said they were functional equivalents. I think in the case above, both Bruton and Crawford are implicated; why the Court did not address Bruton is the question.

]]> By: Scott Greenfield http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7264 Scott Greenfield Thu, 25 Oct 2007 22:30:56 +0000 http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7264 While both are confrontation clause based, one is a rule of general application, the other specific. One has a remedy of severence, the other preclusion. They may overlap under certain circumstances, but are not functional equivalents. See <a href="http://confrontationright.blogspot.com/2006/02/crawford-and-bruton-any-relation.html">Confrontation Blog </a> and <a href="http://indignantindigent.blogspot.com/2006/02/ad4-bruton-and-crawford-violations.html">Indignant Indigent</a> While both are confrontation clause based, one is a rule of general application, the other specific. One has a remedy of severence, the other preclusion. They may overlap under certain circumstances, but are not functional equivalents.

See Confrontation Blog

and Indignant Indigent

]]> By: Gideon http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7260 Gideon Thu, 25 Oct 2007 18:28:32 +0000 http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7260 [quote comment="7256"]The opinion is available <a href="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTYwMzYtY3Jfb3BuLnBkZg==/05-6036-cr_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irlcd2e/3/hilite">here</a> [pdf file] While the Bruton issue is obviously, there is no mention of Bruton in the opinion at all. Rather than assume it is a sub silentio holding that Crawford trumps Bruton, which similarly makes no sense since they deal with entirely different issues, it seems more likely that the appellees failed to raise it, or that it was not raised by trial counsel and waived on appeal. The notion that Bruton is somehow interconnected with a Crawford rulings simply makes no sense to me at all, and I certainly wouldn't conclude that the opinion can be read that way when Bruton is never mentioned. This smacks, to me, of a screw up somewhere on the defense side, and a court that wasn't going to raise a winning argument for the defendant if the defense didn't.[/quote] Maybe I misunderstand you, but are you saying there's no connection between Crawford and Bruton? I think the problem in the application of Bruton here might be that the facts of Bruton involved a testimonial statement. The principle, however, should apply. How else is the defendant to "confront his accuser", in this case, the co-defendant? [quote comment="7256"]The opinion is available here [pdf file]

While the Bruton issue is obviously, there is no mention of Bruton in the opinion at all. Rather than assume it is a sub silentio holding that Crawford trumps Bruton, which similarly makes no sense since they deal with entirely different issues, it seems more likely that the appellees failed to raise it, or that it was not raised by trial counsel and waived on appeal.

The notion that Bruton is somehow interconnected with a Crawford rulings simply makes no sense to me at all, and I certainly wouldn’t conclude that the opinion can be read that way when Bruton is never mentioned. This smacks, to me, of a screw up somewhere on the defense side, and a court that wasn’t going to raise a winning argument for the defendant if the defense didn’t.[/quote]
Maybe I misunderstand you, but are you saying there’s no connection between Crawford and Bruton?

I think the problem in the application of Bruton here might be that the facts of Bruton involved a testimonial statement. The principle, however, should apply. How else is the defendant to “confront his accuser”, in this case, the co-defendant?

]]> By: Scott Greenfield http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7256 Scott Greenfield Thu, 25 Oct 2007 16:01:25 +0000 http://apublicdefender.com/2007/10/25/second-circuit-on-crawford/#comment-7256 The opinion is available <a href="http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA1LTYwMzYtY3Jfb3BuLnBkZg==/05-6036-cr_opn.pdf#xml=http://www.ca2.uscourts.gov:8080/isysquery/irlcd2e/3/hilite">here</a> [pdf file] While the Bruton issue is obvious, there is no mention of Bruton in the opinion at all. Rather than assume it is a sub silentio holding that Crawford trumps Bruton, which similarly makes no sense since they deal with entirely different issues, it seems more likely that the appellees failed to raise it, or that it was not raised by trial counsel and waived on appeal. The notion that Bruton is somehow interconnected with a Crawford rulings simply makes no sense to me at all, and I certainly wouldn't conclude that the opinion can be read that way when Bruton is never mentioned. This smacks, to me, of a screw up somewhere on the defense side, and a court that wasn't going to raise a winning argument for the defendant if the defense didn't. The opinion is available here [pdf file]

While the Bruton issue is obvious, there is no mention of Bruton in the opinion at all. Rather than assume it is a sub silentio holding that Crawford trumps Bruton, which similarly makes no sense since they deal with entirely different issues, it seems more likely that the appellees failed to raise it, or that it was not raised by trial counsel and waived on appeal.

The notion that Bruton is somehow interconnected with a Crawford rulings simply makes no sense to me at all, and I certainly wouldn’t conclude that the opinion can be read that way when Bruton is never mentioned. This smacks, to me, of a screw up somewhere on the defense side, and a court that wasn’t going to raise a winning argument for the defendant if the defense didn’t.

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