Sunday, July 01, 2007

Cert petition by Missouri on the lab report issue

One of the most significant outstanding Crawford-related issues is whether lab reports and other reports routinely prepared as part of the prosecutorial process should be deemed testimonial. If such a report is considered testimonial -- as it should be -- then it may not be admitted against the accused unless the author of the report is subjected to cross-examination. The lower courts have sharply divided on the issue, but so far the Supreme Court has not taken an opportunity to resolve it. But that may soon change, because now a state, rather than a defendant, has asked the Court to take the matter up. You can read the petition for certiorari (passed on to me by Jeff Fisher) in Missouri v. March by clicking here.


Rocky Sharwell said...

SCOTUS has dismissed this case pursuant to a motion filed by the State of Missouri.

Richard D. Friedman said...

Rocky is very alert, because this just happened today. The situation here was rather bizarre. The state AG's office filed the petition in June; counsel of record for the state tells me that the local prosecutor didn’t tell him that March had already entered a guilty plea. Believing in the telephone as an instrument of legal communication, I might have thought that defense counsel would alert the AG’s office and suggest that the petition be withdrawn. Instead, counsel made the mootness point by filing a brief in opposition, on the due date in July, together with a motion for in forma pauperis proceeding. The papers were all distributed to the Court for conference on September 24, and on September 20 the state filed a motion to dismiss for mootness. Lots of wasted effort and paper all around. The court’s decision obviously conveys no information as to the merits of the issue or its importance.

Amy Bartholow said...

Defense counsel did suggest, multiple times, by phone and by email, that the AG's petition be withdrawn. Unfortunately, no such motion to withdraw was filed before the brief in opposition was due. Defense counsel did not wish to waive the issue of mootness by failing to bring it to the Court's attention at the earliest opportunity - in the brief in opposition. Defense counsel was frustrated by the "wasted effort and paper all around," but had no other choice, given the state's inaction. Please do not be so quick to disparage defense counsel - especially without contacting her to obtain complete information.