Thursday, October 02, 2008
Reply brief in Melendez-Diaz
Here is the reply brief for the petitioner in Melendez-Diaz v. Massachusetts, the cased that will determine whether a forensic lab report identifying a substance as cocaine is testimonial for purposes of the Confrontation Clause. The briefs are now all in, and the case will be argued November 10.
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3 comments:
The Minnesota Court of Appeals issued a ruling yesterday finding that autopsy reports implicate Confrontation Rights and do not qualify as "business records."
http://www.mncourts.gov/opinions/coa/current/opa071189-1014.pdf
Professor Friedman-
I've read the briefs in Melendez-Diaz. I think the real-or lurking issue-is the hearsay exception for past recollecton recorded. There is no doubt that these lab techs will not remember each and every test. Crawford says their written report does not come in because it is a statement that defendant has not had an opportunity to cross examine. This makes mass testing inadmissible if you can show that the tech has no memory of this test. Given the amount of drug tests state labs do, this creates a serious problem for the state. This is powerful stuff. I can see why the prohibition era cases dispensed with cross exam of the lab tech. Your comment would be appreciated.
I am going to hear the argument on November 10. Is there any way I can be sure I get a seat?
Mitch Ignatoff, Esq.
at least where I come from, the "past recollection recorded" exception is dependent on the recorder taking the stand to say that he knows the content was accurate when he recorded it.
far more of interest, I think, is what happens when the recorder is dead or unavailable, and words like "business records" or "official records" must be uttered.
does anyone (outside of Minnesota, perhaps) really think the murderer might go free, because the medical examiner dies before trial and the victim's body has since decayed?
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