Federal Defenders of New York Second Circuit Blog

Confrontation Clause

Smith reaffirms defendants’ right to confront forensic experts, while leaving open the question of which expert statements are “testimonial.”

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Last week, the Supreme Court reaffirmed in Smith v. Arizona, No. 22-899 (June 21, 2024), that criminal defendants have a Sixth Amendment right to confront experts who provide forensic evidence for the prosecution. This right extends to testimonial statements by experts whose testing and opinions form the basis of a different expert’s opinion. This issue … Read more

Supreme Court will revisit the application of the Confrontation Clause to forensic evidence.

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The Supreme Court has granted certiorari in Smith v. Arizona, No. 22-899. The question presented is: Whether the Confrontation Clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert … Read more

Supreme Court Grants Review to Clarify Rules Governing Forfeiture or Waiver of Constitutional Right to Confront Witnesses

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The Supreme Court granted certiorari today in Hemphill v. New York (No. 20-637), to resolve the following question: “Whether, or under what circumstances, a criminal defendant who opens the door to responsive evidence also forfeits his right to exclude evidence otherwise barred by the Confrontation Clause.” The facts are straightforward. In 2006, someone fired a … Read more

Confrontation Clause Error in Summary Opinion

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Yesterday the Circuit engaged in a bit of harmless error in describing the relationship between the Confrontation Clause and the business records exception to the hearsay rule, Fed. R. Evid. 803(6). The mistake in United States v. Grecco, No. 16-3112 (2d Cir. 2008) (Jacobs, Wesley, Korman (EDNY)), available here, is worth flagging because it has the potential … Read more

Second Circuit Opinion on Post-Arrest DNA Testing and the Confrontation Clause

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Kenneth Washington was convicted based on DNA records created after his arrest. He did not have the opportunity to cross-examine the analysts who tested the DNA. Yesterday the Second Circuit rejected Washington’s habeas petition, which argued that the admission of these records violated clearly established law governing the Confrontation Clause. The holding of Washington v. Griffin … Read more

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In today’s United States v. Harris, the Second Circuit (Newman, Calabresi, Raggi) decided two things with respect to supervised release. First, “18 U.S.C. § 3583(e) does not preclude revocation of supervised release on the basis of conduct that earlier prompted a modification of supervision conditions.”  Here, the district court first modified Harris’s terms of supervision — based on … Read more

Meet The Press

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United States v. Treacy, No. 09-3939-cr (2d Cir. March 9, 2011) (McLaughlin, Hall, CJJ, Restani, JCIT) James J. Treacy, former COO and President of the parent company of Monster.com, was convicted of securities fraud and related offenses based on a scheme in which he backdated stock options. On appeal, the circuit held that the district … Read more

Gray’s Anatomy

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United States v. Jass, No. 06-4899-cr (2d Cir. June 16, 2009) (Walker, Cabranes, Raggi, CJJ) Marian Jass was jointly tried with her much older boyfriend, Kenneth Leight, on charges that they sexually exploited Leight’s daughter and one of her friends. Leight, but not Jass, was also charged with several child pornography counts, based on materials … Read more

Confrontational

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United States v. Figueroa, No. 06-1595-cr (2d Cir. November 18, 2008) (Kearse, Sack, Hall, CJJ) In an interesting companion to Brinson v. Walker [blogged below under the title “Confrontation Claws”], the court treated a highly similar issue, this time under both the Confrontation Clause and the federal rules of evidence. At Edwin Figueroa’s gun possession … Read more

Confrontation Claws

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Brinson v. Walker, No. 06-0618-cr (2d Cir. November 13, 2008) (Kearse, Leval, Sack, CJJ) In this state prisoner’s habeas corpus case, the circuit affirmed the grant of the writ because the state court’s refusal to permit the defense to cross-examine a supposed robbery victim about his racial bias violated the confrontation clause. Brinson, the petitioner, … Read more