Tuesday, January 27, 2009
Still waiting for Melendez-Diaz . . .
The Supreme Court issued several decisions yesterday, including a couple from November and even one from December. But Melendez-Diaz, which was argued November 10, was not among them. The Court's next open session is February 23, and a decision could come down that day or soon after. If I were a defendant appealing from a conviction based on a lab or autopsy report that was admitted in the absence of a person who completed it or observed first-hand the event or conditions it states, I would certainly ask the court to postpone proceedings pending the Supreme Court's decision.
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What is your take on the intersection of Crawford and FRE 703? It appears to me that even if SCOTUS ultimately holds that forensic reports are testimonial hearsay under Crawford, courts will simply allow the prosecution to get around Crawford by introducing the substance of a forensic report through the testimony of an expert witness using the legal fiction of FRE 703 that information relied upon by an expert witness is not hearsay because it is presented not for its truth but merely to explain the expert's opinion.
Prof. Friedman has posted a lot on this topic, see his Sept. 12 2007 post (which links to several earlier posts, as well as a good article by Mnookin who has some good analysis).
The long and short of it is, as you have suggested in your own question by calling it a "legal fiction," that any view that turns the Confrontation Clause into an easily subverted formality is not a very adequate one. Only if the testimony is true does it actually support the expert's conclusions, and therefore to say it's being admitted for anything other than its truth can't be right. There are some bad cases out there on this topic, I think People v. Goldstein out of New York is one of the few good ones. In that case, the Court said:
"Since the prosecution's goal was to buttress [the expert's] opinion, the prosecution obviously wanted and expected the jury to take the statements as true... The distinction between a statement offered for its truth and a statement offered to shed light on an expert's opinion is not meaningful in this context."
FYI: The Illinois supreme court just granted leave to appeal on this issue in the case of People v. Williams. The appellate court held that an expert's testimony as to the results of DNA analysis providing genetic profile of offender in sexual assault case was not hearsay under the state's adoption of FRE 703. The decision is at 895 N.E.2d 961.
Still no decision in Melendez.
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