Friday, October 06, 2006

Lab reports and a notice-and-demand statute -- a significant decision from Minnesota

The Minnesota Supreme Court's decision yesterday in State v. Caulfield, 2006 WL 2028676 (Minn. Oct. 5, 2006),is notable and on the whole encouraging.

Noting a conflict among courts but (properly) finding the matter untroubling, the court unanimously held that a Bureau of Criminal Apprehension lab report, offered at trial to prove that a substance seized from the defendant was cocaine, was testimonial. The court correctly rejected the argument by the state "that state crime lab analysts play a nonadversarial role and are removed from the prosecutorial process." Although the underlying standard used by the court is somewhat unclear, the court soundly criticized decisions treating lab reports as non-testimonial, saying that those decisions "wrongly focus on the reliability of such reports."

The court was divided 4-3 in holding unconstitutional Minnesota's notice-and-demand statute, Minn. Stat. sec. 634.15, which allows admission of certain lab reports without testimony of the analyst unless the defendant "request[s], by notifying the prosecuting attorney at least ten days before the trial, that the [analyst] testify in person at the trial on behalf of the state." A critical aspect of this statute is that the defendant may demand that the analyst be called to testify at trial "on behalf of the state." The effect of this provision is that the statute does no more than require early assertion of the confrontation right; this is much more justifiable than provisions (such as one recently upheld in the neighboring state of North Dakota and discussed in another post) that effectively treat the confrontation right as abandoned unless the accused subpoenas the witness and makes her his own witness. In general, I think, statutes that merely require the defendant to assert his confrontation rights at some reasonable time prior to trial do not raise a serious constitutional problem; the state should be allowed to use a report without presenting the live testimony of the analyst if the defendant doesn't object, and long enough ahead of trial to make planning possible the state should be told whether it has to bring the analyst in. A ten-day period in this context does not seem unreasonable, though probably there should be leeway allowing the defendant to invoke the confrontation right later if he can show good reason why he did not earlier but needs to now. The Minnesota Supreme Court agreed that a properly drafted notice-and-demand statute might be constitutional. Nevertheless, the court held this one unconstitutional, declaring:

At a minimum, any statute purporting to admit testimonial reports without the testimony of the preparer must provide adequate notice to the defendant of the contents of the report and the likely consequences of his failure to request the testimony of the preparer.

The first point, that the defendant needs adequate notice of the contents of the report -- and, the court might have said, of the prosecution's intent to offer it -- is a good one, because absent such notice the defendant cannot intelligently decide whether to invoke the confrontation right. (Indeed, while the court refers to sec. 635.14 as a "notice-and-demand" statute, the only notice for which it provides, so far as I can see, is notice of the demand by the defendant that the preparer testify.) This is probably all the court needed to say. The second point, that the defendant needs notice of the likely consequences of failure to demand testimony of the preparer, seems rather odd to me, and this is what generated the dissent: It is pretty obvious from the statute that the report will be admitted and the preparer will not testify at trial unless the defendant demands the testimony. In any event, there is an easy fix: The state just has to draft a good notice provision to deliver to defendants.


T.Staab said...

Thanks Professor. I'm arguing a case before the WA State Supreme Court on Oct 17, on whether declarations by department of licensing employees, which provide the employee's opinion of the defendant's driving status, are testimonial. I will send this case to the court as supplemental authority. Tstaab.

Anonymous said...

Available online for those of us who cannot afford Westlaw allstate

Minn Supreme Court has a site.

Anonymous said...

(from Andrew Fine)

In a decision involving the same issue, the Oregon Court of Appeals has reaffirmed a pre-Crawford State Supreme Court decision upholding a notice-and-demand provision requiring the defendant to "affirmatively elect to have the state put on testimony by the criminalist in order to secure the opportunity to cross-examine the authors of lab reports." State v. Miller, 2006 WL 2820978 (Ore. App., decided October 4, 2006). Nevertheless, the court reversed the defendant's conviction. It held that the lab reports offered to prove that a substance recovered from defendant contained cocaine were testimonial, and that the defendant satisfied the statute by requesting the state to call the authors of the report, but the state did not do so. Apparently, the prosecution had assured defense counsel that the authors would be subpoenaed, but then failed to follow through.
The court chose an interesting tack to justify circumventing the Crawford dictum to the effect that business records would not have been considered testimonial at the time of the founding. It recognized that the forerunner of the business-records exception, the "shop book rule," as construed by the Supreme Court in Palmer v. Hoffman, 318 US 109 (1943), would not have encompassed documents prepared for litigation, like this one. Thus, a police lab report "would not fall within the shop book rule exception as the framers of the United States Constitution would have understood it."
In stark contrast is the decision by the Seventh Circuit in United States v. Ellis, 460 F3d 920 (decided 8/22/06). After being arrested for, among other things, drug possession, Ellis agreed to go to a hospital for blood tests, at the prompting of a police officer. The tests revealed the presence of controlled substances. The trial court permitted the test results to be introduced as business records, without calling the employees who conducted and authenticated the tests.
The Seventh Circuit ruled that the reports were not testimonial. It acknowledged that the tests were conducted under police supervision and in the course of an investigation to determine whether a crime had been comomitted, and that the testers knew that the results, if incriminating, would be used for prosecution. 460 F.3d at 924-925. But it held that all of this was irrelevant: all of the observations memorialized in the medical records were made in the ordinary course of business, rendering them nontestimonial under Crawford. Id. at 925.
Davis, said the court, supports this conclusion, because by ruling the 911 call to be nontestimonial, the Supreme Court "necessarily
reject[ed] a strict adherence to denominating as testimonial all statements made under circumstances where a reasonable person would know the statements might be used as evidence of a crime." The court cited the law review article authored by Prof. Friedman and Prof. McCormack making the point that most 911 callers know that their calls will virtually guarantee an arrest, and probably a prosecution. Dial-In Testimony, 150 U.Pa.L.Rev. 1171, 1199. For similar reasons, the court ruled that the certification of authenticity of the medical records was also nontestimonial.
It seems that this is an issue that begs for resolution by the Supreme Court, though they may not yet consider it sufficiently "ripe."
Andrew Fine

Anonymous said...

If you're interested in an article discussing the confrontation clause implications of notice and demand statutes, you can take a look at my article, Cheating the Constitution, at 59 Vand. L. Rev. 475 (March 2006).

Pamela Metzger

Anonymous said...

Prof. Metzger was kind enough to provide me an advance copy of her article some time ago.
It is very impressive and I would say required reading for anyone practicing criminal law.

Scott Lockwood

Fred Moss said...

The Dallas Texas Court of Appeals recently held that the defendeant forfeited his right to confront the lab technician who analyzed the drugs because the defense did not request the technician's present at trial after being notified that the state intended to indroduce the report and proof of chain of custody via certified records. Thus, the court avoided the problem with finding a waiver of a constitutional trial right from a silent record, i.e., a failure to object.

Anyone know of another reported case where forfeiture rather than waiver was addressed?

Fred Moss, SMU

The case is, Deener v. State, 2006 WL 3479941 (12/4/06).

Richard D. Friedman said...

Does the name matter in this context I mean that if a statute requiring that the report is admissible unless the defendant (who presumably has received adequate notice) makes a timely demand, and the defendant fails to make the demand, then the defendant loses the right, and if the sttute is constitutional -- as I think it should be, if properly drafted -- then it doesn't really seem to me to matter whether it's called forfeiture or waiver.

Anonymous said...

Richard et. al,

I think the labels matter but only because of the more negative connotations of forfeiture (v. waiver). Both are fundamentally dishonest labels. Of the two, waiver is the more dishonest. At least forfeiture comes closer to speaking the truth - someone failed to act, or acted wrongly (i.e. defaulted in his or her obligation to demand confrontation) and a client is now suffering the consequences. The problem is that this "forfeiture" imposes an unconstitutional consequence (no confrontation) on constitutional conduct (reliance upon the State carrying the burdens of production and persuasion).

Both "waiver" and "forfeiture" analyses mask underlying intent of these statutes - to rely on defense failures to promote prosecutorial efficiency.

As I've argued elsewhere, the sensible and non-controversial way to achieve the ostensible legislative goal - efficient use of the government's forensic expert - would be to require the prosecution to offer a written stipulation to the defense.

So why are all of these statutes drafted in a way that puts the burden on the defense? Because legislatures assume that the greatest efficiency (i.e. the least confrontation) will occur if the statute puts the burden on defense counsel rather than on the prosecution.

Why don't legislatures require prosecutors to offer forensic stipulations at the pretrial conference or motions hearings? Surely if the legislature is right (i.e. defendants doesn't really want to confront forensic declarants), then the efficiency gain would be greater than it is now - all the "waiver" benefits minus the pesky constitutional litigations about the Sixth Amendment. Or, at worst, the economic principles of criminal justice will have kicked in and the prosecution will have been forced to bargain for the benefit it seeks.

The risk inherent in such a statutory scheme is that defense lawyers WON'T routinely give something (a stipulation) for nothing. Of course, that would mean either 1) the legislature is wrong, defendants do really want to confront (and perhaps cross-examine) these experts; or 2) the economic incentives being offered in exhange for the stipulation aren't sufficient to motivate the defense to give up a valuable (i.e. tradeable) constitutional right.

Why do legislatures write these statutes backwards and place the burden of acting (i.e. 'demand') upon the defense? Because the legislative assumption (hope) is that the "economics" of criminal defense will produce more efficiency (i.e. less confrontation) if the law requires the defense to do something affirmative.

Indeed, my recollection is that most, if not all, of these statutes require that the defense make its demand in writing. Surely if real legislative goal is efficiency, legislatures would write statutes that permit defense attorneys to make oral "demand" for production of the declarant.

The writing requirement is only explicable as a way of imposing transactional costs on the defendant (defense counsel) who is so ornery as to think that the State should bear the burden of production.

So, just because I'm curious: do folks believe that there such a thing as a constitutionally adequate statute that shifts the burden of production associated with Confrontation from the prosecution to the defense? Or are we actually debating a threshold question: whether there's a specific procedural architecture associated with Confrontation?


Jillian said...

Really effective data, thank you for the article.