tag:blogger.com,1999:blog-5354567765897135804.post5905637406877327074..comments2023-03-16T23:35:17.345-04:00Comments on Forensic Science, Statistics & the Law: Maryland v. King: When Being Smart and Witty Isn't EnoughDH Kayehttp://www.blogger.com/profile/09329862957840849989noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5354567765897135804.post-78297180881806493262013-12-08T12:04:37.175-05:002013-12-08T12:04:37.175-05:00Ascertaining the government's "primary pu...Ascertaining the government's "primary purpose" to determine the constitutionality of a government practice is not limited to the Fourth Amendment arena. <br /><br />I assisted in drafting the Supreme Court briefs in two Sixth Amendment cases that, for the first time, proposed using a "primary purpose" test to determine whether a hearsay declarant was a "witness" within the meaning of the Confrontation Clause. (See, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006).) This analysis required a determination of whether a hearsay declarant's statement was obtained by the police for the "primary purpose" of (1) building a case against a known suspect (in which case the statement would be "testimonial," and the declarant would be a "witness" under the Confrontation Clause) or (2) addressing an "ongoing emergency" involving public safety (in which case the statement would be "nontestimonial" and the declarant would not be a "witness" under the Confrontation Clause).<br /><br />I also developed the "primary purpose" test that was adopted by four justices in Williams v. Illinois, 132 S.Ct. 2221 (2012). This test narrowed the test in Davis & Hammon by concluding that a hearsay declarant was a Confrontation Clause "witness" only if their statement was obtained by the government for the "primary purpose" of "accusing" a "targeted" individual of a crime.<br /><br />So, in the Sixth Amendment context, just like in the Fourth Amendment context (Indianapolis v. Edmond, 531 U.S. 32 (2000)) the "primary purpose" underlying the government's conduct has always been pivotal to the Court's constitutionality determination.<br /><br />With this background in mind, I don't see any inconsistency in Scalia's joining the majority in Florence and his dissent in King. In Florence, viewed objectively, the "primary purpose" of the search was to ensure the "safety" of all the people who work and reside in the jail. Importantly, the "primary purpose" of such searches is not simply to build a case against the arrestee.<br /><br />In King, however, viewed objectively, there is only one purpose for the search: To determine if the arrestee is connected to an unsolved crime. On the surface, I can see Scalia's perspective that this evidence gathering purpose (by throwing out a suspicionless net to hopefully catch a piranha) would distinguish King from Florence. But when one examines the issue a little closer, the consistency of Scalia's position becomes questionable. <br /><br />Yes, in King, the purpose of the search was to determine if King was linked to any unsolved crime and, thus, can be deemed to be motivated by "evidence gathering," as opposed to "safety" (as in Florence). But, "safety" is at the core reason (albeit unstated) that the King majority held the search to be reasonable. <br /><br />The logic behind the majority's "safety" rationale is that linking an arrestee to an unsolved crime would, in turn, provide for the "safety" of persons in the jail and, if the arrestee may be released pending his trial, the "safety" of the public at large.<br /><br />The King majority didn't want to plainly state that "safety" was at the heart of its holding for fear that this would create a slippery slope allowing the "safety" justification to swallow the Fourth Amendment's protection. But, in my opinion, there is simply no getting around the fact that the "primary purpose" behind (the justification for) arrestee DNA searches is "safety" (of jail occupants and the public at large). The majority should have clearly stated so in King rather than engaging in the semantics of whether the term "identification" has a broad (the majority) or narrow (the dissent) meaning.<br />pvineman1https://www.blogger.com/profile/08122071684038276970noreply@blogger.com