I write this column in response to the News article titled "Courts of second opinion." Its inference that somehow an adverse ruling constitutes a lack of competence of the judge is off the mark.
I have taught criminal procedure for more than 18 years at the University at Buffalo Law School and have taught evidence for the last seven years. Students are taught that in many situations, there is no "right or wrong." We don't consider Justices Thurgood Marshall or William O. Douglas to have been incompetent because on many occasions they disagreed with the findings of their colleagues.
The obvious inference that is sought to be drawn from the article is that somehow a ruling different from that of the majority of an Appellate Court constitutes incompetence. The difficulties of a criminal judge are exemplified by the decision in Crawford v. Washington, which was decided by the U.S. Supreme Court in 2004 and is taught in all law schools across the United States.
The issue before the court was the admissibility of a witness's hearsay statement that implicated the defendant. The court held as follows:
Crawford applies when an out-of-court statement of a person who does not appear at trial is offered to establish the truth of what was stated and its testimonial nature. The defendant has a constitutional right to confront the maker of the statement. A testimonial hearsay statement cannot be admitted against a criminal defendant unless the maker of the statement is presently unavailable as a witness and the defendant had a prior opportunity to cross-examine the declarant. Unless these two requirements are met, the statement of the hearsay declarant must be excluded, even if it is clearly reliable and fits one of the hearsay exceptions.
Crawford did not provide a definition as to what constitutes "testimonial" statements. Judges in The News' survey would have been called upon to determine the admissibility of a hearsay statement when Crawford is applicable. On some occasions, an incorrect Crawford ruling would constitute reversible error and on other cases it would not.
Since Crawford mentions hearsay, I will simply note that more than 25 exceptions to the rule against hearsay are contained in the Federal Rules of Evidence. There are equally as many exceptions to the hearsay rule within the state of New York. However, New York is one of five or six states that have not codified their Rules of Evidence.
I have addressed only the most basic of principles that would have been addressed in the serious cases that comprise the predicate for this survey.
I have read appellate decisions with which I agreed and some with which I did not. I dare not even begin to address the complex right to requiring suppression once there has been a constitutional violation.
I believe the inference created by the article is unfair.
Kevin M. Dillon is a New York State Supreme Court justice.