Monday, April 06, 2009
Maybe they forgot about it?
The Supreme Court completed its latest sitting today without deciding Melendez-Diaz v. Massachusetts. The long wait -- the case was argued November 10 -- suggests that something is brewing. Perhaps the Court is still debating the merits of the particular question presented, whether a forensic lab certificate reporting the presence of cocaine is testimonial. But I still think that should be an easy yes. Perhaps they are debating broader questions concerning the meaning of "testimonial." And perhaps they are debating yet more general questions of constitutional interpretation. April 21 is now the first date on which, barring something unusual, perhaps we will find out.
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14 comments:
I've read somewhere, maybe on SCOTUSblog, that Melendez-Diaz is the only case left from the November arguments that is still undecided, and that Justice Scalia is the only justice who hasn't written an opinion from the November arguments.
Yes, and I think that's been true for several weeks. This case is taking a lot longer to decide than Crawford did!
Professor-
At this point I'd suggest filing a motion for re-argument.On the issue we thought was going to be argued the court appeared to have a consensus of yes. They wanted to know about impact, an issue that was not addressed. My views have evolved since November 10. Impact is alot like Palsgraff v. Long Island Railroad; however there is history to be considered. Was confrontation permitted in petty offense cases?
Mitch Ignatoff
Impact should be irrelvant. If the question of whether laboratory reports are testimonial was easy, the Court would not have granted cert. It is a tough question, and it seems the Court is struggling to find an answer. Melendez is going to define "testimonial." Crawford and Davis were "easier" cases because the former was incredibly broad and the latter rather narrow.
Sir;
If the definition of testimonial is changed, the impact of the confrontation right is changed. I think that the confrontation right is co-extensive with the right to trial, with or without a jury.
I think what our comments reveal is that the Court was asking a question that was not the issue raised. The issue raised in the briefs is whether the results of the machine analysis are testimonial; i.e. does the state have to bring in a witness to be cross examined to get the results into evidence. The issue the Court seemed concerned with is whether the process of the machine is testimonial. My answer is yes to that too. If the Court answers yes on that issue the states will have to bring in a witness who is personally familiar with all aspects of the machine to get the results into evidence. That's many more witnesses. It's done routinely in Califronia in drunk driving cases. What about phone bills? In a criminal case the answer is still yes, the state has to bring in someone who is familiar with all the processes of making that bill. This is a large impact.
Mitch Ignatoff
Assuming laboratory reports are testimonial, wouldn't the person who operated the machine and created the laboratory report typically be able to testify as to how the machine works thus resolving any Confrontation Clause problem?
As the results of a machine are not hearsay, how would the process of the machine itself produce a testimonial statement? You need to lay a foundation as to the reliability of the machine, but isn't the problem that the operator of the machine is - unlike the machine itself - making a testimonial hearsay statement when the operator does not testify but the lab report they created is admitted.
As to phone bills, you would say that somone from the phone company needs to testify as to how the bill was created because when provided to law enforcement the bill becomes a testimonial statement? At least prior to Crawford, would you agree that the bill constituted a business record and that an affidavit of a records custodian would suffice?
Indeed, it is taking a lot longer than Crawford to decide. Perhaps the issue isn't as simple and clear as some have suggested.
Still no opinion!
I think the justices don't know what to do. They all agree the business record rule arose well after the confrontation clause. Beyond that they don't know what to do. Perhaps someone should do the work and see what California does, as Justice kennedy suggested.
Mitch Ignatoff
California has adopted the "contemporaneous recordation of observable events" approach and deemed laboratory reports to be testimonial. See People v. Geier, 161 P.3d 104, 139 (Cal. 2007). This is an incorrect interpretation of Davis, as it completely ignores the emergency prong of the inquiry.
What California does as a procedural matter in dealing with lab reports is of little moment. In fact, the question may not even be properly before the court. The Court needs to decide whether laboratory reports are testimonial, and that is no easy task.
Seems we have to wait until at least next week.
I waited something like 21 months after OA for the opinion in Florida v. Johnson. I think they know it is testimonial but just fear the result...
Oral argument for the 2008 term will end today, and there still will not be an opinion in Melendez-Diaz.
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