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

handle is hein.journals/mlro105 and id is 1 raw text is: 

                           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/

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