New Ruling Breathes Life Into Crawford v. Washington and the Confrontation Clause

July 2, 2009

U.S. Supreme Court

Melendez-Diaz v. Massachusetts (No. 07-591, June 25, 2009) ___ U.S. ___ [2009 D.A.R. 9363]

New Ruling Breathes Life Into Crawford v. Washington and the Confrontation Clause
(See recent ruling at the bottom of this email)

The effects of parents or non-parents to confront any data or testimony that will be used against them is even stronger now. Child protection can no longer submit ANY medical document or testing into the court record without the said author of said document being present at the time of submission.

The reports can NOT stand on their own without being confronted by any party. Failure to do so excludes the document and is inadmissible into the record. The confrontation clause applies to all government officials, not just a selected few. Crawford has been used and does apply to child protection cases as ruled by the courts.

For those not familiar with Crawford, Crawford in short means the State of Connecticut or DCF or any other state can't prosecute a parent or a non-parent in cases of domestic violence without the testimony of the alleged victim. Hearsay statements from police, mandated reporters, doctors or DCF are no longer admissible in order to prosecute the case. The accused has a constitutional right to confront the accuser under the Confrontation Clause. In other words, the victim MUST testify or there is no case.

Breaking News: U.S. SUPREME COURT DECIDES MELENDEZ-DIAZ, BREATHES LIFE INTO CRAWFORD AND THE CONFRONTATION CLAUSE.

In Melendez-Diaz v. Massachusetts (No. 07-591, June 25, 2009) ___ U.S. ___ [2009 D.A.R. 9363], the U.S. Supreme Court – by a 5-4 vote – held that a drug analyst’s affidavit discussing the nature of the substance tested and its weight was a testimonial statement for purposes of the Sixth Amendment, and as such, absent a showing of unavailability and a prior opportunity for cross-examination, a defendant is entitled to confront the analyst at trial. The majority found this to be a “rather straightforward application” of Crawford v. Washington (2004) 541 U.S. 36.

To summarize Melendez-Diaz briefly: At the defendant’s drug trial for distributing and trafficking cocaine, the prosecution submitted “certificates of analysis” showing the results of forensic tests on the alleged contraband. The certificates reported the substance found was cocaine, and provided its weight. The defendant argued on appeal, that the certificates violated his Sixth Amendment right to confrontation. The High Court agreed “[t]here is little doubt that documents at issue fall the ‘core class of testimonial statements’” described in Crawford. The certificates are testimonial because they were prepared specifically for use at the defendant’s trial. They do not qualify under the business records exception because they were created for the purpose of establishing or proving something at trial, not for the administration of an entity’s affairs. And, the majority rejected the claim that an analyst was not a “conventional witness” because an analyst’s report contains near-contemporaneous observations of testing, noting that a police officer’s investigative report of a crime scene would not be admissible absent an opportunity to cross-examine the officer.

It is unclear how much the Melendez-Diaz opinion is expected to impact California felony trials and appeals. In California, the lead case is People v. Geier (2007) 41 Cal.4th 555. In that case the Supreme Court held that reports made by a biologist on DNA analysis were non-testimonial and did not implicate the Confrontation Clause. The court recognized the report at issue was requested by a police agency and that it could reasonably have been anticipated that the report would be used at trial. (Id. at p. 605.) But the court found it critical that the report “constitute[d] a contemporaneous recordation of observable events rather than the documentation of past events.” (Ibid.) As such, the court concluded that when the report was being prepared the analyist was not acting as a witness and was not testifying. (Id. at p. 606.)

Geier directly conflict with part of the reasoning in Melendez-Diaz, namely, its basis on the contemporaneous-observation argument which the latter rejected. However, there was a petition for certiorari pending in Geier (07-7770) and it was denied on June 29, 2009. So, for now, Geier is still controlling in California. But it is still possible to argue that Geier was wrongly decided based on Melendez-Diaz. At least this will preserve the issue for further appellate review.

Incidentally, the same day cert was denied in Geier, the High Court granted cert in Briscoe v. Virginia (07-11191) which will further define the scope of Melendez-Diaz. The question presented in that case is: If a state allows a prosecutor to introduce a certificate of a forensic laboratory analysis, without presenting the testimony of the analyst who prepared the certificate, does the state avoid violating the Confrontation Clause of the Sixth Amendment by providing that the accused has a right to call the analyst as his own witness?

For now, appellate counsel may wish to review both their present and their recently concluded cases to determine whether further action is warranted in light of Melendez-Diaz. At the time of this writing, CCAP staff is examining the opinion to consider options, alternatives, and procedures for any case falling within the decision. As the effects and ramifications of Melendez-Diaz are better understood, further information will be posted on the CCAP website. For specific questions on cases from the Third and Fifth Districts, counsel may contact the CCAP staff attorney assigned to their case.