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CRIMINAL JUSTICE | SUMMER 2021
Published in Criminal Justice, Volume 36, Number 2, Summer 2021. © 2021 by the American Bar
Association. Reproduced with permission. All rights reserved.This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database
orretrieval system without the express written consent of the American Bar Association.
application was unreasonable under § 2254(d)(1),
as the Second, Third, Seventh, Ninth, and Tenth
Circuits have held?
Section 1983—Favorable Termination Rule
Thompson v. Clark, No. 20-659
Question Presented:
Whether the rule that a plaintiff must await
favorable termination before bringing a
Section 1983 action alleging unreasonable
seizure pursuant to legal process requires the
plaintiff to show that the criminal proceeding
against him has “formally ended in a manner
not inconsistent with his innocence,” Laskar
v. Hurd, 972 F.3d 1278, 1293 (11th Cir. 2020),
or that the proceeding “ended in a manner
that affirmatively indicates his innocence,”
Lanning v. City of Glens Falls, 908 F.3d 19, 22
(2d Cir. 2018); see also Laskar, 972 F.3d at 1293
(acknowledging 7-1 circuit conflict).
Sixth Amendment—Confrontation Clause
Hemphill v. New York, No. 20-637
Question Presented:
A litigant’s argumentation or introduction of
evidence at trial is often deemed to “open the
door” to the admission of responsive evidence
that would otherwise be barred by the rules of
evidence. The question presented is: Whether, or
under what circumstances, a criminal defendant
who opens the door to responsive evidence also
forfeits his right to exclude evidence otherwise
barred by the Confrontation Clause.
AEDPA
Shinn v. Ramirez, No. 20.-1009
Question Presented:
The Antiterrorism and Effective Death
Penalty Act (AEDPA), 28 U.S.C. § 2254(e) (2),
precludes a federal court from considering
evidence outside the state court record when
reviewing the merits of a claim for habeas
relief if a prisoner or his attorney has failed
to diligently develop the claim’s factual basis
in state court, subject to only two statutory
exceptions not applicable here. In the cases
below, the Ninth Circuit concluded that
AEDPA’s bar on evidentiary development does
not apply to a federal court’s merits review
of a claim when a court excuses that claim’s
procedural default under Martinez v. Ryan, 566
U.S. 1 (2012), because the default was caused
by postconviction counsel’s negligence. The
question presented, which drew an eight-judge
dissent from the denial of en banc rehearing in
each case, is: Does application of the equitable
rule this Court announced in Martinez v. Ryan
render 28 U.S.C. § 2254(e)(2) inapplicable to
a federal court’s merits review of a claim for
habeas relief? n
Lesson
In this day and age, recorded conversations are
legion. People leave voicemails routinely on
landlines, cell phones, and even computers. In
jurisdictions that permit secret recording of calls
with the consent of one participant, a person
cannot be certain that his or her conversation is not
being recorded. And even in jurisdictions where all
parties must consent to a recording, a party cannot
be certain that a call is not being recorded, albeit
illegally. During a pandemic, people use services
like “Zoom” to see and/or hear one another. It is
likely that authentication issues regarding recorded
voices will arise more frequently. There no longer
appears any reason for a seven-factor test or
for any test that involves specific factors. The
question in every case should be whether there
“is . . . sufficient evidence for the trier of fact to
find by a preponderance of the evidence that a
voice identification is valid.” Of course, satisfying
authentication does not guarantee that the trier of
fact will find a voice identification to be reliable, but
it guarantees the admission of evidence where the
only hurdle is an authentication objection. n
Trial Tactics continued from pg 44
