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105 Mich. L. Rev. First Impressions 1 (2006-2007)

handle is hein.journals/mlro105 and id is 1 raw text is: WE REALLY (FOR THE MOST PART) MEAN IT! Richard D. Friedman*t I closed my petition for certiorari in Hammon v. Indiana by declaring, 'We really mean it!' is the message that lower courts need to hear, and that decision of this case can send. The prior year, Crawford v. Washington had transformed the law of the Confrontation Clause, holding that an out-of- court statement that is testimonial in nature may be admitted against an ac- cused only if the maker of the statement is unavailable and the accused has had an opportunity to cross-examine her. But Crawford deliberately left un- determined what the term testimonial meant. Many lower courts gave it a grudging interpretation, devising a range of doctrines that allowed them to continue much as they had before, admitting out-of-court statements that they deemed sufficiently reliable even though the accused never had an op- portunity to cross-examine the maker of the statement. Hammon was a good example of this phenomenon. Hershel Hammon was convicted of battery on the basis of an accusation made by his wife, Amy. But she never testified at trial (not because she was scared to, but ap- parently because she did not want him convicted). Instead, the critical evidence at trial consisted of the testimony of a police officer, recounting the oral accusation that Amy made to him in the family living room the night of the incident, and an affidavit, similarly narrating the incident, which Amy completed at the officer's request immediately after she made her oral accu- sation. The case was tried ten months before Crawford, and though defense counsel objected because of his inability to cross-examine Amy-Makes me mad' he said-the trial judge thought both statements were easily ad- missible. You might want to refresh your memory regarding the hearsay rules he told counsel, admitting the oral statement as an excited utterance and the affidavit as a present sense impression. That, in pre-Crawford days, sufficed to dispose of concerns under the Confrontation Clause as well as under the hearsay rule. Hammon was convicted, but by the time the appel- late courts decided his case Crawford had come down, and the Indiana Supreme Court had to acknowledge that the affidavit was testimonial. After all, it was under oath, quite formal, with an invocation of the domestic bat- tery statute, and clearly prepared in contemplation of criminal proceedings. The court held, though, that the oral statement was not testimonial, because when the officer took that statement he was not preparing a case; rather, he * Professor of Law, University of Michigan Law School; counsel for the petitioner in Hammon v. Indiana. T Suggested citation: Richard D. Friedman, We Really (For the Most Part) Mean It!, 105 MICH. L. REV. FIRST IMPRESSIONS 1 (2006), http://students.law.umich.edu/mlr/firstimpressions/ voll05/friedlnan.pdf.

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