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The 2005-06 term provided the U.S. Supreme Court with two new members, including its first new chief justice in almost 20 years. Yet, as Law Professor Douglas Berman recently remarked, “[a]gainst the backdrop of the previous two terms . . . the criminal law part of the Court’s docket in the just-completed term feels quite uneventful.” Sentencing Law and Policy, June 30, 2006, http://sentencing.typepad.com . Still, by end of the term, the justices, including Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., had the opportunity to stake out their positions in several criminal cases. Many of these late-term decisions, while not blockbusters, should have practical import, and a few may signal how this transitional term will shape the court’s future criminal jurisprudence. This article highlights some of these decisions. ‘Crawford’ revisited Two highly anticipated decisions were Davis v. Washingtonand Hammon v. Indiana, 126 S. Ct. 2266 (2006), the first Supreme Court cases with the potential to clarify Crawford v. Washington, 541 U.S. 36 (2004). Crawfordheld that the confrontation clause generally excludes “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” Crawford, however, did not provide a complete definition of “testimonial statements,” leading to a “miasma of uncertainty.” U.S. v. Brito, 427 F.3d 53, 55 (1st Cir. 2005). In Davisand Hammon, the defendants were charged with crimes of domestic violence. Neither victim testified at trial. The trial court in Davispermitted the prosecution to introduce the victim’s statements to 911 in which she identified Adrian Davis as her attacker. In Hammon, the trial court permitted responding police officers to testify to statements the victim gave about the assault. In evaluating these pretrial statements, the court refined Crawford‘s testimonial concept: “Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution.” 126 S. Ct. at 2273-74.
SUPREME COURT REVIEW
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