From near the end of today's SCOTUSblog entry about petitions denied by the Supreme Court today:

The Court declined to hear one of a number of pending sequel cases to the 2004 decision in Crawford v. Washington, which bars out-of-court statements in criminal trials if the person who made the statement is not available and the statement thus cannot be subjected to cross-examination.

OK, that sounds reasonable…

The new case was New York v. Goldstein (05-1193), testing whether the Crawford decision applies to criminal trial testimony by an expert witness who testified about out-of-court infomration forming the basis for that witness' expert opinion. The case is a celebrated one, involving a mentally disturbed man, Andrew Goldstein, who was convicted of pushing a young women to her death in front of an oncoming subway train.

Hmm…

Prosecutors at his trial called a forensic psychiatrist to testify about his mental condition. Over defense objections, the doctor testified about statements made to her by individuals who knew Goldstein. New York's Court of Appeals found the use of that testimony violated Crawford, and ordered a new trial.

Holy crap!

SCOTUS refused to hear the case today, and that means the New York Court of Appeals decision to grant a new trial stands. Let's make sure we understand how huge this add-on to Crawford is: if a psychiatrist or police officer or anyone else interviews people to prepare for testimony in a criminal case, the person testifying cannot mention what those people told him (or her) in front of the jury unless those people are also available to testify so they can be cross-examined.

The constitution guarantees us the right to cross-examine our accusers, but that right has been eroded a bit more each decade, it seems, in the name of getting more convictions. Courts have let witnesses testify without cross-examination in front of a grand jury and then simply read their testimony to a trial court and its jury (one of those things you even see on Law & Order) for a huge variety of reasons, few of which have anything to do with the witness' safety.

If a witness might not hold up under cross-examination, that witness is instead interviewed by another "expert" witness who tells the court what he or she said, and how it contributed to the "expert" opinion of the defendant's culpability. In a few cases, courts want to admit 911 calls as "testimony" when the caller refuses to testify, allowing the accusation to stand without the ability for cross-examination.

But today's denial, combined with Crawford, seems to rule that out: the jury can only hear that a (living, functional) person "said" something if that person comes into court and testifies to it, allowing the truth and motives of that statement to be cross-examined. It's a huge win for civil liberties in the USA.

What's more, consider the numbers: SCOTUS hears an appeal if four of the nine justices vote to hear it. For the petition to be denied, it means that no more than three of them (including the überconservative quartet of Scalia, Thomas, Roberts, and Alito) voted to even have a chance to overturn it.

That's pretty encouraging.