Interview of Professor Coleman on his article published on the USF Law Review Forum
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Interview of Professor Coleman on his article published on the USF Law Review Forum

October 10, 2019


Hello professor Coleman, how are you? Find it? Oh, thanks. Um So how long have you been working for USF of an adjunct professor? since June of 2014 so about five years and What classes do you teach I USF? now I teach evidence and I also do the externship supervision for Criminal externships both defense and prosecution and that for a number of years I also teach grand jury practice and the longest class. I’ve taught is ethical trial advocacy for prosecutors and Of all the classes, which ones are your favorite? They’re all different Summer seminars, the evidence class is a really big bar required class They each have their own Plusses and minuses But I like them all in the sense that the students are completely different in each class and the interactions are wonderful So And you’re also working at the SFDA the office I’ve been there 40 years as a prosecutor and retired when I started up here But I go back there two days a week as a consultant and I work on Bray issues grand jury issues and whatever else they need me to work on and So, um kind of going along on your article that you go for the Crawford decision Can you maybe give us a little bit of background about the Crawford decision and how it was an instrumental case in your Opinion, okay Well, I started in the DA’s office in 1979 and in 1980 there was a US Supreme Court opinion the Roberts vs Ohio decision which Laid out a pretty clear rules for evidence in criminal trials That if you could get over a hearsay objection With an exception to the hearsay rule. That was a reliable well known established hearsay objection that you could get some evidence in and for most of my criminal for twenty-five of the first 40 years well all the Roberts and Prosecutors would look for an exception and the defense would attack the fact that it is hearsay and we get along then in 2004 Justice Scalia one of the more conservative members of the bench came up with a whole new theory about evidence law and hearsay that involved the confrontation Clause of the sixth amendment and involved evidence that would have otherwise been admitted was a Key victim who gave a statement to police shortly after the crime Which would have been admissible as an excited utterance. The victim was no longer available to testify But suddenly was not allowed to bring in that as the prosecution because it violated the defendant’s right up front the key witness against and so What the Crawford decision did the first time is a defense friendly Decision in only criminal cases and only once sought by the prosecution tremendous evidence Was to give the defense a whole new line of attack against evidence not just hearsay But as it confrontations and it changed both sides practicing criminal law We now have to find a way to get around the Crawford decision by Calling that witness either at the trial or at the prelim So as to have that would just be confronted by the defendant We couldn’t even go to grand jury because there’s no confrontation to a grand jury and the defense had a new and novel and very powerful way to object to order so it really changed the practice of criminal law and All the cases since Crawford and all the nuances of what Crawford meant Meant that hold that whole area of law with some great flux for many years it’s only starting to have a settle down and As a law professor what it made us do now is add a whole day to our evidence just long day of class just on crawford and You put you kind of mentioned is that the both the defense and the prosecution Have to change the way that they normally conduct cases where the you know, the witness is unavailable Could you maybe tell us like an Example of how would you have to kind of change your tactic and maybe how the police? to when they are You know doing investigation how they also have to kind of change their tactic. So you know to kind of if there is a Chance where the declarant will be unavailable okay, taking kind of that example of what happened in Crawford where the Key witness or key victim is given a police interview now under Crawford that is considered testimonial hearsay because it’s a kind of statement that an official of the state of the police after the crime when they’re focusing on the defendant are seeking testimony that could be used in court with testimonial hearsay, the defendant has to have an opportunity to confront the witness and Hearsay with an unavailable witness is simply not admissible anymore Unless there’s that confrontation so if we have that kind of a victim who might become unavailable we can’t use her at the grand jury because She won’t be cross-examined We have to go to prelim so it changes our tactic approaching evidence We have to call more witnesses at the prelim in order to preserve their testimony subject to cross-examination Or we have to look for an alternative. Let’s say that victim called 911 Well cases after Crawford has said when you’re calling 9-1-1 to report a crime That the dispatcher takes your report is not developing testimony for a criminal case, but trying to Give you comfort and figure out where to send the police So that’s it admissible under the exception for excited utterance if the victim were to talk to her her neighbor or Or roommate or co-worker That’s not a state agent so we can use that so we have to encourage the police to get as many Corroborating statements as they can and not just to rely on the victim because if the victim is unavailable, we’re stuck Or if the defendant himself Made it an admission That’s not subject to Crawford because the defendant is at trial to in a sense confront himself as the declarant So there’s no hearsay or Sixth Amendment issue there so we want to encourage the police to Interview this defendant given with Miranda rights and if they can get a statement Tell us the statement so we can use that even if the evidence is otherwise strong Give us as much evidence as we can use we also have to deal with defense attorneys who are very Vigorously fighting to keep evidence out and one of the biggest problem areas in Crawford is cases that came after Crawford Melendez that talked about a crime Expert working for the police like a crime lab technician who signs an affidavit saying I weighed this white substance and it weighs two grams of cocaine tested positive for cocaine that test analysis is Testimonial hearsay prepared for a trial and therefore we can’t get a admissible under a business record exception we have to have the actual analyst testifies not a trial that Changed our practice to because we suddenly have to call all these analysts at every trial we might anyway But there’s no way to get around that rule. I see and Kind of like a fun fact what so Scalia in that opinion and Crawford mentions or Walter Raleigh Did you I know that you have a fun fact about I do when Scalia who is known for his originalism analysis going back to the founding fathers of the Constitution in our Republic to find this rule he went that early we met back all the way to the early 17th century with the trial in England Sir Walter Raleigh now Raleigh was tried for a plot against the king of England and He was convicted and sent to his death in the Tower of London based on two hearsay declarants one was a lord cobham who didn’t testify at his trial a magistrate Subject working for the crown took his statement and then read the statement to the trial So there was no chance for her for Walter Raleigh to confront Cobham and even worse there was the testimony of a ship’s pilot In England the master of a ship who guides him into a harbor who had taken an English ship at some point to Lisbon and then talked to a Portuguese gentleman we dont know his name Who stated to this ship’s pilot that? Cobham and Raleigh were plotting against the king and That hearsay testimony of the Portuguese gentleman came in and there was no chance for for Sir Walter Raleigh to cross-examine the gentleman All he had was the ship’s plan so going all the way back to that trial and the excesses of the Crown’s evidence in that trial, let’s Scalia to come to his confrontation right rule, but the fun fact is that even after the conviction And he was in the Tower of London awaiting execution The crown needed Sir Walter Raleigh. It was one of their best seamen to lead an expedition to the new land North America, and so they let him out to do this expedition and then when he came back then they executed him. Thank you so much professor Coleman for writing the article and please check out Professor Coleman

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