Monday, January 25, 2010
Cert petition on "Who must testify?"
Sooner or later, the Supreme Court will have to resolve the question of who must testify to the substance of a lab test. Indeed, with Briscoe now safely off the Supreme Court's docket, this would be a logical next issue for the Court to tackle; the justices were interested in it both in Melendez-Diazand in Briscoe. Jeff Fisher has just filed a cert petition raising this issue in Pendergrass v. Indiana, seeking review of Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009). You can read it by clicking here.
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So let me understand the logic here. If a woman is raped by a man she doesn't have to testify; Dr. Ruth can come to court and testify based upon her expertize as a sexologist.
That assertion seems ridiculous on it's face.
Yeah, exactly like that.
Professor:
While most New York lower courts are finding breathalyzer certifications to be nontestimonial, at least one court has disagreed (see, People v. Carreira, 2010 WL 254901 (N.Y.City Ct.)). In your opinion, are the such certifications testimonial? Or is Melendez's dicta that “documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records[,]” to be believed?
Interesting issue, I believe. I assume that statement in Melendez-Diaz indicates the Court is inclined to determine that they are not testimonial, and the fact that they are not geared to any given prosecution could be used to support that proposition. On the other hand, I don't believe that there should be a rule that a statement has to be made in contemplation of the case being tried for it to be within the scope of the Confrontation Clause. I hope I'll be able to write more about this later.
Professor,
Is this as simple as requiring the testimony of the person who has signed the certificate? Multiple people may be involved in compiling a lab analyst's report, but isn't the report ultimately a statement of the analyst who signed the certificate? Rather than a surrogate, who testifies about all reports produced in a given lab, the analyst who signs the report has participated in its production and can be confronted about its accuracy. I don't see the court requiring every analyst who has touched the evidence be required to testify (Melendez-Diaz said as much) and this simple solution doesn't seem to offend the Confrontation Clause.
I seems to me that the testimony of merely the analyst who signed the certificate would not be sufficient. To the extent that the testifying analyst relied upon the accuracy of the results of analysis conducted by a non-testifying analyst, and those results are incorporated in the certificate, I believe the non-testifying analyst's results (statement) would constitute hearsay, as they were out of court statements presented for their truth. Similar to statements brought in under FRE 703.
The Supreme Court granted cert. today in this case, http://coa.courts.mi.gov/documents/OPINIONS/FINAL/SCT/20090610_S133725_117_Bryant1Mar09-op.Corrected.pdf, from the Michigan Supreme Court which involves the scope of "emergency" under Davis. A divided Mich. Sup. Ct. found the statement, made by the declarant to a police officer 30 minutes after the declarant had been shot, to be testimonial.
A petition for certiorari was filed in a related Seventh Circuit case, United States v. Turner (USSC Dkt. No. 09-10231), that is cited in the Pendergrass petition.
Well, I do not actually imagine it may work.
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