DUI Law - Use of Video Doesnt Violate Confrontation Says Florida

In State of Florida v. Holland, --- So.3d ----, 2011 WL 6183512 (Fla.App. 4 Dist.) the defendant was stopped and eventually arrested for DUI. After the initial stop, BSO Deputy Grady was called to the scene to perform field sobriety exercises on Holland. He requested Holland undergo a breath test. The interaction between Grady and Holland was recorded by video camera. In particular, the videotape showed Holland's refusal to submit to breath testing, the field sobriety exercises administered by Grady, and the conversations between Grady and Holland during the course of the investigation.

Before Holland's trial, the State announced that it did not intend to call Grady as a witness, prompting Holland to move to suppress all of Grady's involvement in the investigation. This included the entire contents of the videotape. Holland argued that the State's decision not to call Grady would violate the Confrontation Clause under the Sixth Amendment to the United States Constitution,FN1 citing to Crawford v. Washington, 541 U.S. 36 (2004). The trial court agreed and suppressed the video.

On appeal, the court reversed. It found that the defendant's refusal to submit to sobriety cases was admissible, citing to a variety of cases as such:

"First, Holland's refusal to submit to sobriety testing is admissible. This issue has been resolved by the Legislature's enactment of the implied consent law under section 316.1932(1)(a) 1.a ., Florida Statutes (2010). Section 316.1932(1)(a) 1.a. provides in pertinent part that “[t]he refusal to submit to a chemical or physical breath test upon the request of a law enforcement officer as provided in this section is admissible into evidence in any criminal proceeding.” § 316.1932(1)(a) 1.a., Fla. Stat. (2010); see also State v. Kline, 764 So.2d 716, 717 (Fla. 5th DCA 2000) (holding that implied consent law requires admission of a defendant's refusal to submit to a breath or urine test). We look no further than the legislative directive to conclude that the segment of the videotape showing Holland's refusal is admissible under section 316.1932(1)(a) 1.a. Furthermore, Holland's statements on the videotape constitute admissions of a party opponent. See § 90.803(18)(a), Fla. Stat. (2010) (providing an exception to the hearsay rule when a statement is offered against a party and is “[t]he party's own statement in either an individual or a representative capacity.”). Therefore, under section 90.803(18)(a), the statements are admissible. See Dias v. State, 890 So.2d 1254, 1255 (Fla. 4th DCA 2005); cf. United States v. Valdes, 214 F. App'x 948, 950 (11th Cir.2007) (“Statements made by [the defendant] in tape-recorded conversations [with an informant], when presented by the Government, were not hearsay because they were admissions of a party opponent.”).

How the above statutes and caselaw relating to the admissibility of a refusal to submit to a post-arrest breath blood or urine test authorizes the admissibility of evidence of a refusal to submit to pre-arrest field sobriety testing is beyond this author's comprehension. In regards to the remaining portions of the videotape, the court wrote:

"We hold that Grady's statements on the videotape were non-hearsay verbal acts. A verbal act is defined as “an utterance of an operative fact that gives rise to legal consequences.” Banks v. State, 790 So.2d 1094, 1097 (Fla.2001). Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein. Id. at 1097–98.

Here, Grady's directives on the videotape during the sobriety exercises, both verbal and non-verbal, are not hearsay because they were not offered for the truth of the matter asserted. Instead, they were offered to give meaning to Holland's otherwise ambiguous acts. See Longval v. State, 914 So.2d 1098, 1102 (Fla. 4th DCA 2005) (noting that witness testimony describing the conversation on a surveillance video in evidence was admissible over hearsay objection because it described and gave significance to the ambiguous conduct on the videotape); see also Stotler v. State, 834 So.2d 940, 944 (Fla. 4th DCA 2003) (holding that words that explain or give meaning to otherwise ambiguous acts are not hearsay). The State is correct that Holland's reactions on the videotape would be meaningless without having the benefit of Grady's statements prompting Holland's reactions."

The court reversed and remanded the case to the trial court to determine whether the videotape was properly authenticated through the testimony of the deputy who conducted the initial traffic stop.

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DUI law - Confrontation Clause Doesnt Apply to Calibration Breath Records

In Commonwealth v. Dyarman, --- A.3d ----, 2011 WL 5560176 (Pa.Super.), 2011 PA Super 245 the court was asked to decide whether the calibration records of an Intoxilyzer 5000en violated the Confrontation Clause. They ruled that the logs did not so violate.

"In this matter, unlike in Barton–Martin, the individual who actually performed Appellant's BAC analysis (Officer Gsell) testified as to the accuracy of that test and as to the specific results received with regard to Appellant. Nevertheless, Appellant claims that admission of the calibration logs for the device used to determine Appellant's BAC, without the testimony of the person who performed the actual calibration, violated her right under the confrontation clause. Appellant's Brief at 10–15. Appellant argues that the calibration logs are testimonial in nature, such that application of Melendez–Diaz and Barton–Martin should prohibit their admission through the business records exception of the hearsay rule. Id. at 13. We disagree."

"Here, the calibration logs were admitted into evidence to establish the chain of custody and accuracy of the device used to test Appellant's BAC; they were not created in anticipation of Appellant's particular litigation, or used to prove an element of a crime for which Appellant was charged. Therefore, although relevant evidence, the logs were not “testimonial” for purposes of the protections afforded by the confrontation clause, as contemplated by Crawford, Melendez–Diaz, and Barton–Martin."

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DUI Law - Michigan Says Certificate of Mailing Inadmissible Confrontation Clause Violation

This case comes to DAD thanks to the watchful eyes of incoming Michigan State Delegate Mike Nichols. In People V. Nunley, --- N.W.2d ----, 2011 WL 4861858 (Mich.App.) the State appealed the circuit court's order denying the prosecution's motion in limine to admit the Secretary of State's certificate of mailing on the ground that it violated defendant's right to confront witnesses against him.

According to the pertinent facts, a police officer cited defendant for driving while license suspended, (DWLS). The prosecutor obtained defendant's “certified driving record, signed and sealed by the Secretary of State” from the Secretary of State's Office. Included as part of defendant's driving record is a “Certificate of Mailing of Orders and Rest Lics .” The certificate provides in the relevant provisions:

I CERTIFY THAT I AM EIGHTEEN YEARS OF AGE OR OLDER AND THAT ON THIS DATE NOTICE OF THE ORIGINAL ORDER OF SUSPENSION OR RESTRICTED LICENSE WAS GIVEN TO EACH OF THE PERSONS NAMED BELOW BY FIRST–CLASS UNITED STATES MAIL AT LANSING, MICHIGAN AS PROVIDED IN SECTION 212 OF MICHIGAN VEHICLE CODE (MCL 257.212).

DATE 6–22–09 [handwritten] OFFICER OR EMPLOYEE F. BUETER

 On July 27, 2010, the district court held a hearing on the prosecutor's motion in limine. The district court held that by its nature, a “certificate” requires a signature and that because, “I don't find any other reason why this document would be used except in litigation,” the Confrontation Clause in the sixth amendment of the federal Constitution requires that, in order for the certificate to be admitted in defendant's trial, the person who prepared the certificate must appear and be subject to cross-examination. In sum, the district court denied the prosecution's motion in limine finding that a signature was required on the certificate in order for it to be effective as a basis for a DWLS charge, and, that admission of the certificate without testimony of its author would violate defendant's Sixth Amendment Confrontational Clause rights.


On appeal, the prosecutor argued that the certificate of mailing at issue is analogous to a docketing statement or a clerk's certification authenticating an official record and is therefore non-testimonial and admissible. In support of his argument, the prosecutor relied on the following passage in Melendez–Diaz:

"The dissent identifies a single class of evidence which, though prepared for use at trial, was traditionally admissible: a clerk's certificate authenticating an official record—or a copy thereof—for use as evidence. But a clerk's authority in that regard was narrowly circumscribed. He was permitted “to certify to the correctness of a copy of a record kept in his office,” but had “no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.” [ Melendez–Diaz, 129 S.Ct at 2538–2539 (citations omitted).]

The Michigan appellate court wrote in response:


"The prosecutor asserts that the situation in the present case is identical, arguing that Secretary of State records are similar to a clerk's certification. The prosecutor has missed a crucial distinction. If the document at issue was merely a copy of defendant's driving record sent along with the “Certificate of Mailing,” and “F. Beuter” was merely certifying the authenticity of that record, the prosecutor would have an excellent point. But, the copy of the record is not at issue and Beuter was not certifying its authenticity. Beuter was certifying that the notice of suspension had been sent, the very fact that must be proved to convict defendant of DWLS. The critical distinction is that the author of the certificate of mailing, here F. Bueter, is providing more than mere authentication of documents, he is actually attesting to a required element of the charge. Unlike a docketing statement or clerk's certification, the certificate of mailing will be used against defendant to prove an element of DWLS–2nd offense and is necessary for establishing an essential fact at trial.


The prosecutor also argued that the certificate of mailing is admissible because the Secretary of State's records are not prepared “solely” for trial. It cited to state law requiring that notices of suspensions be sent to the driver and that records of the same be maintained. in rejecting this position, the court replied:

"Careful review of MCL 257.204a reveals that it does not require creation of the certificate or maintenance of the certificates in the Secretary of State's records. Although MCL 257.204a(1)(h) requires the maintenance of “notices,” it does not require records to be kept of the certificates verifying the fact that a notice has been sent. Our review of the record in this case shows that the certificate of mailing does not appear in defendant's certified driving record. The Secretary of State created the certificate of mailing independent of MCL 257.204a.


Additionally, the court wrote:


"A clerk could by affidavit authenticate or provide a copy of an otherwise admissible record, but could not do what the analysts did here: create a record for the sole purpose of providing evidence against a defendant." (emphasis in original)"

In sum, the court stated:


"It is important to keep in mind just what the prosecutor wants to have admitted and what the lower courts refused to admit. It was not defendant's driving record. Nor was it the notice of suspension. It was the certificate of mailing that the notice of suspension was in fact mailed to defendant. The key factor in this case is that the certificate of mailing is proof of notice by virtue of the plain language of MCL 257.212, which will indisputably be used to establish an element of the offense charged."

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DUI Laws - Maryland Bars Tests Where Analyst Doesnt Testify

In the upcoming months, SCOTUS will be deciding whether the Confrontation Clause is violated when a profile of DNA is developed from semen left on a victim by a non-testifying analyst is then used by a testifying analyst who offers the opinion that there is a 'match' with the defendant. This case is known as Williams v. Illinois.

In Derr v. State of Maryland, --- A.3d ----, 2011 WL 4483937 (Md.), the same factual issue occurred. A person was sexually assaulted in 1985 and swabs were obtained, which contained semen. Seventeen years later, in 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the biological evidence. A DNA profile of the suspect, consisting of thirteen genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS). Dr. Donovan did not testify at trial.

In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new “reference DNA sample” and to verify that Derr's profile in CODIS was accurate. The testing of the new sample was performed by an unnamed team of biologists (who also did not testify at trial) and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Upon interpretation of the biologists' results, Dr. Luttman determined that the reference sample matched Derr's profile in CODIS and so testified. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant. Further, Dr. Luttman did not perform the actual DNA testing in 2004, but rather merely “supervised” or reviewed her team's analysis, with no indication that she observed the “bench work” ^FN5 at the time it was performed by her team.

The appeals court stated as follows:

"In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause."

In concluding that the Confrontation Clause was violated, the court stated:

"When reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial. Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, when “an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial,” and its admission invokes the Confrontation Clause. Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713, 180 L.Ed.2d at 619. This is because “the prosecution may not introduce such [evidence] without offering a live witness competent to testify to the truth of the statements made in the report.” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2709, 180 L.Ed.2d at 615. In the case of DNA testing, the DNA profile is a statement of the analyst that essentially says: “This is the DNA profile for this person.” If the DNA profile is inputted into CODIS and a match is obtained, then that match is derived from the statement of the analyst. In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness. See Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713–17, 180 L.Ed.2d at 619–24.

"We reach this conclusion for several reasons. First, the DNA profile and report are made for the primary purpose of establishing facts relevant to a later prosecution, and an objective analyst would understand that the statements will be used in a later trial. Stated differently, the analyst who generated the report must have known that the purpose of the testing was ultimately to establish the perpetrator's identity through DNA evidence. Second, the testing results, and the resulting DNA profile, can be considered an affidavit because they are the functional equivalent of in-court testimony, offered to establish prima facie evidence of guilt, which constitutes formalized testimonial material. Third, the statements produced by DNA testing are testimony under Crawford because the statements are solemn declarations made to prove a fact, namely the identification of the sample and possible match. Finally, the analyst who performs the DNA analysis is a witness for the purpose of the Confrontation Clause because the DNA profile created is a representation “relating to past events and human actions not revealed in raw, machine-produced data[.]” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2714, 180 L.Ed.2d at 621. Therefore, the DNA profiles created by lab analysts, the reports they produce, and the conclusions or opinions they form contain testimonial statements that are subject to the requirements of the Confrontation Clause.^FN12"

The court also discussed the claim that Rule 703 (the same as FRE 703) should allow such evidence to be admitted:

"In evaluating a Confrontation Clause claim of this sort, involving surrogate testimony and scientific testing, we must address the continued validity and application of Md. Rule 5–703. We shall hold that, because of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although the Rule allows for an expert to base his or her opinion on inadmissible evidence, to the extent that Md. Rule 5–703 offends the Confrontation Clause, such testimony will not be admissible. As the United States Supreme Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ “ Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming and testifying as to the expert's own independent opinion. In such a case, Md. Rule 5–703, as applied, would not appear to offend the Confrontation Clause.

Thus, the defendant's judgment was reversed.

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DUI Laws - Kentucky Reverses Drug Conviction Based On Confrontation Violation

This case comes to DAD thanks to the watchful eyes of Founding Member William "Bubba" Head from Georgia. In Whittle v. COMMONWEALTH of Kentucky, --- S.W.3d ----, 2011 WL 4431158 (Ky.), the defendant was charged with possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender. Prior to trial, a juror indicated he was friends with the trooper in the case. In response to how his friendship with a state trooper would affect his participation on the jury, the juror initially stated that he believed he would remain impartial. However, when asked immediately thereafter whether there was “a possibility bias might creep in,” he agreed there was that possibility. Appellant, to no surprise, emphasizes the latter response: the juror's admission that there was a “possibility” that through his friendship with the state trooper, bias in favor of the prosecution could “creep in” to his adjudication. The trial court refused to strike the juror for cause, and on appeal that ruling was affirmed. "A juror must only be struck for cause if there is a probability he will be biased in favor of one party over the other. Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky.1958). Appellant admits that friendship with a law enforcement official does not create inherent bias in a juror toward the prosecution. See Penman v. Commonwealth, 194 S.W.3d 237, 252–53 (Ky.2006), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky.2010). As “even law enforcement personnel are not automatically excluded from the jury panel,” it would be absurd to automatically disqualify their friends. Id. at 252."

At trial, the lab analyst failed to appear, so a supervisor read the lab report into evidence. On appeal, the court found that the admission of the evidence that the powder was cocaine violated the Confrontation Clause, despite the fact that a supervisor was there to be cross-examined. In responding to a variety of State arguments attempting to distinguish the SCOTUS cases, the court stated:

"Despite the similarities between the issue presented here and that resolved by the U.S. Supreme Court in Melendez–Diaz, the Commonwealth ventures three arguments for why its authority does not mandate reversal here: It should be distinguished; should not apply retroactively; and any finding of error it mandates here is harmless. Presumably, the Commonwealth would make the same arguments as to Bullcoming.

The best-argument is that Melendez–Diaz should be distinguished from the case at hand. The Commonwealth attempts to distinguish the “certificates of analysis” entered into evidence in Melendez–Diaz because they, unlike the lab report here, were unaccompanied by live witness testimony. It claims that because Terry Comstock testified in court to the contents of this report, and Appellant was free to cross-examine him, his Confrontation Clause rights were satisfied.

This distinction would carry water if Comstock's testimony about testing was the only evidence admitted, and not the report itself. But the report was admitted into evidence. Appellant's opportunity to cross-examine Comstock does not satisfy any potential right to be confronted with the author of the report. See Crawford, 541 U.S. at 51 (noting that in type of English prosecution Confrontation Clause was designed to prevent, “Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court”). Even if Appellant could hypothetically demonstrate that Comstock was ignorant about chemistry or a complete liar, he still could not confront the author of the report."

Thus, the cocaine related convictions were overturned. Because there was no attempt to confront anyone on the marijuana charge (i.e. it appears to have been admitted without a contest) that conviction was affirmed.

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DWI Appeal - US Supremes Bar Blood Test Without Actual Analyst Testimony

In Bullcoming v. New Mexico, the government sought to introduce a blood test without having the analyst who performed the actual test appear and testify in court. The United States Supreme Court held that such a technique violates the Confrontation Clause, and reversed the conviction.

Here is the Summary from the court:

In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonialstatements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachu-setts, 557 U. S. ___, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, cre-ated specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipula-tion, the Court ruled, the prosecution may not introduce such a re-port without offering a live witness competent to testify to the truth of the report’s statements. 557 U. S., at ___.

Petitioner Bullcoming’s jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before Melendez-Diaz. Principal evidence against him was a forensic laboratory report certi-fying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming’s blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undisclosed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but had neither participated in nor observed thetest on Bullcoming’s blood sample. Bullcoming’s counsel objected, asserting that introduction of Caylor’s report without his testimonywould violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify. Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, this Court decided Melendez-Diaz. The state high court acknowledged that the SLD report qualified as testimonial evidence under Melendez-Diaz, but held that the report’s admission did not violate the Confrontation Clause because: (1) certifying analyst Caylor was a mere scrivener who simply transcribed machine-generated test re-sults, and (2) SLD analyst Razatos, although he did not participate intesting Bullcoming’s blood, qualified as an expert witness with re-spect to the testing machine and SLD procedures. The court affirmed Bullcoming’s conviction.

147 N. M. 487, 226 P. 3d 1, reversed and remanded.

JUSTICE GINSBURG delivered the opinion of the Court with respect to all but Part IV and footnote 6. The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimonyof an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. The accused’s right is to be confronted with the analyst who made thecertification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Pp. 8–16.

(a)If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made thestatement is unavailable and the accused has had a prior opportunity to confront that witness. Pp. 8–14.

(i)Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sampleintact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank,indicating that no circumstance or condition affected the sample’s in-tegrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination. The potential ramifi-cations of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events.Where, for example, a police officer’s report recorded an objective fact such as the read-out of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he orshe was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington, 547 U. S. 813, 826, makes plain, however, such testimony would violate the Confrontation Clause. The comparative reliability of an analyst’s testimonial report does notdispense with the Clause. Crawford, 541 U. S., at 62. The analysts who write reports introduced as evidence must be made available forconfrontation even if they have “the scientific acumen of Mme. Curieand the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___,n. 6. Pp. 10–11.

(ii)Nor was Razatos an adequate substitute witness simply be-cause he qualified as an expert with respect to the testing machine and the SLD’s laboratory procedures. Surrogate testimony of thekind Razatos was equipped to give could not convey what Caylor knew or observed about the events he certified, nor expose any lapses or lies on Caylor’s part. Significantly, Razatos did not know why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked Caylor questions designed toreveal whether Caylor’s incompetence, evasiveness, or dishonesty ac-counted for his removal from work. And the State did not assert that Razatos had any independent opinion concerning Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fairtrial, it does not follow that such rights can be disregarded because,on the whole, the trial is fair. United States v. Gonzalez-Lopez, 548 U.S. 140, 145. If a “particular guarantee” is violated, no substituteprocedure can cure the violation. Id., at 146. Pp. 11–14.

(b)Melendez-Diaz precluded the State’s argument that introduction of the SLD report did not implicate the Confrontation Clause because the report is nontestimonial. Like the certificates in Melendez-Diaz, the SLD report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding. 557 U. S., at ___. Created solely for an “evidentiary purpose,” id., at ___, the report ranks as testimonial. In all material respects, the SLD report resembles the certificates in Melendez-Diaz. Here, as there, an officer provided seized evidence to a state laboratory required by law to assist in police investigations. Like the Melendez-Diaz analysts, Caylor tested the evidence and prepared a certificateconcerning the result of his analysis. And like the Melendez-Diaz
certificates, Caylor’s report here is “formalized” in a signed document, Davis, 547 U. S., at 837, n. 2. Also noteworthy, the SLD report formcontains a legend referring to municipal and magistrate courts’ rulesthat provide for the admission of certified blood-alcohol analyses.Thus, although the SLD report was not notarized, the formalities at-tending the report were more than adequate to qualify Caylor’s assertions as testimonial. Pp. 14–16.

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DWI Appeal - Confrontation Clause Applies in Probation Revocation Hearing Too

In the fourth of a series of cases involving the right of confrontation, the next case discusses the right of confrontation under the Due Process Clause of the 14th amendment (as opposed to the 6th Amendment right of confrontation found in Melendez-Diaz). The case of Henderson v. Commonwealth of Virginia, --- S.E.2d ----, 2011 WL 2447084 (Va.App.) involved the admissibility of evidence of other crimes committed while the defendant was on probation, allegedly in violation of the right of confrontation under the due process clause.
During the hearing, the only evidence offered in support of any of the alleged violations of the conditions of probation was the testimony of Detective Rosa Ortiz (“Ortiz”) who testified regarding two alleged robberies that she had investigated in October 2009. No charges were brought against Henderson in connection with one of these robberies, and the other robbery charge was nolle prosequied. During the Commonwealth's questioning of Ortiz, Henderson's counsel objected to her testimony regarding what the witnesses in both cases told her, as hearsay in violation of the Confrontation clause.
The Virginia court first explained the type of 'confrontation' one is entitled to under the 14th amendment. “The Sixth Amendment right is limited to ‘criminal prosecutions,’ and a revocation hearing is not a ‘criminal prosecution.’“ Dickens, 52 Va.App. at 417 n. 1, 663 S.E.2d at 550 n. 1 (citing Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). “[B]oth the United States Supreme Court and this Court have ... held that probation revocation hearings are not a stage of criminal prosecution and therefore a probationer is not entitled to the same due process protections afforded a defendant in a criminal prosecution.” Dickens, 52 Va.App. at 417, 663 S.E.2d at 550 (citing Davis v. Commonwealth, 12 Va.App. 81, 84, 402 S.E.2d 684, 686 (1991)); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972).FN7 However, “[p]robation revocation, like parole revocation, ... does result in a loss of liberty. Accordingly ... a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer.” Scarpelli, 411 U.S. at 782; see Davis, 12 Va.App. at 84, 402 S.E.2d at 686. In Morrissey, the United States Supreme Court required that the following “minimum requirements of due process” for a revocation hearing be provided:

(a) written notice of the claimed violations of [probation]; (b) disclosure to the [probationer] of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a “neutral and detached” hearing body such as a traditional parole board, members of which need to be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation].
408 U.S. at 489 (emphasis added).


As stated by the Virginia court herein:

“Specifically, the United States Supreme Court has stated that in revocation hearings ‘formal procedures and rules of evidence are not employed,’ Scarpelli, 411 U.S. at 789, and that the process of revocation hearings ‘should be flexible enough to consider evidence ... that would not be admissible in an adversary criminal trial,’ Morrissey, 408 U.S. at 489.” Dickens, 52 Va.App. at 421, 663 S.E.2d at 552. “Thus, hearsay evidence, which would normally be inadmissible in a criminal trial, may be admitted into evidence in a revocation hearing based on the court's discretion,” id. (citing Morrissey, 408 U.S. at 489), if the circuit court “specifically finds good cause for not allowing confrontation,” Morrissey, 408 U.S. at 489 (emphasis added). Neither our Supreme Court nor this Court have squarely addressed what constitutes “good cause” for denial of the due process right of confrontation in the wake of the many changes wrought by Crawford v. Washington, 541 U.S. 36 (2004), and its progeny's construction of the Sixth Amendment Confrontation Clause.
The Virginia court found that:
“[i]t is entirely clear from the circumstances [in this case] that the interrogation[s were] part of an investigation into possibly criminal past conduct,” Davis, 547 U.S. at 829, and thus the primary purpose of the interrogations was “ ‘for the purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution,’ “ Crawford, 281 Va. at 98, 704 S.E.2d at 116 (alterations in original) (quoting Davis, 547 U.S. at 822). As stated, the challenged evidence in the present case is a detective's testimony that included, and was based on, information provided to her by witnesses during her investigation of two alleged robberies after they had occurred—“ ‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’ “ Melendez–Diaz, 129 S.Ct. at 2531 (quoting Crawford, 541 U.S. at 52).

Having found that the witness' statements were testimonial, the Va. court then determined whether there was 'good cause' to suspend the right of confrontation. The Virginia court noted that, in determining whether to admit testimonial hearsay evidence under the “good cause” exception, other courts have adopted either of two methods in determining whether evidence admitted at a probation revocation hearing violated the limited due process right to confrontation and cross-examination. In Reyes v. State, 868 N.E.2d 438, 441 (Ind.2007), the Indiana Supreme Court explained both methods:

"In one, the trial court employs a balancing test that weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness. E.g., United States v. Martin, 382 F.3d 840, 844–45 (8th Cir.2004). In the balancing test, the State is required to show good cause for denying confrontation. See United States v. Rondeau, 430 F.3d 44, 48 (1st Cir.2005). In another test, the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness. E.g., United States v. Kelley, 446 F.3d 688, 692 (7th Cir.2006). The requirement, found in Morrissey, 408 U.S. at 489, that the trial court find “good cause” before denying the right to confrontation plays an explicit role when a trial court performs a balancing test; however, this does not mean that Morrissey's good cause requirement is not addressed in the substantial trustworthiness test.... [T]he substantial trustworthiness test implicitly incorporates good cause into its calculus.

Under the reliability test, “the trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness,” and “the substantial trustworthiness test implicitly incorporates good cause into its calculus.” Reyes, 868 N.E.2d at 441 (citations omitted); see also Kelley, 446 F.3d at 692; Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); Hampton v. State, 203 P.3d 179, 184–85 (Okla.Crim.App.2009). “Hearsay evidence has been held admissible in federal probation and parole revocation proceedings where the evidence is ‘demonstrably reliable.’ “ Turner, 278 Va. at 742, 685 S.E.2d at 667 (quoting McCallum, 677 F.2d at 1026). In Curtis v. Chester, 626 F.3d 540, 548 (10th Cir.2010), the court noted the following “[e]xamples of evidence possess[ed] recognized indicia of reliability”:

(1) the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence), (2) statements falling under an established exception to the hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4) statements corroborated by the releasee's own statements. See [ Scarpelli], 411 U.S. at 782 n. 5; Prellwitz v. Berg, 578 F.2d 190, 193 (7th Cir.1978) (evidence falling under the “business record” hearsay exception is reliable); Jackson, 323 F.3d at 130–31 (evidence corroborated by observations in a police investigative report is reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee's testimony is reliable).
Applying the reliability test, the Virginia Court found that the testimony was not so reliable so as to excuse confrontation:
"In turning to the facts in this case, Ortiz's hearsay testimony regarding both alleged crimes based solely on her conversations with the witnesses does not rise to the level of demonstrable reliability required for admissibility. The hearsay statements used to establish that Henderson violated the conditions of probation meet no firmly rooted exception to the hearsay rule that implies their inherent reliability. In addition, the record does not convey whether Ortiz was speaking purely from her memory in conveying the statements of the witnesses, or whether she was utilizing a police report or her notes thus further diminishing the reliability of her testimony. See Comito, 177 F.3d at 1171 (concluding that “[u]nsworn verbal allegations are, in general, the least reliable type of hearsay ...”); United States v. Pratt, 52 F.3d 671, 677 (7th Cir.1995) (holding the officer's hearsay testimony was reliable because it was consistent with the written statements of the victim in addition to other corroborating information).

Concluding, the court stated: "Because the out-of-court statements made to Ortiz were neither inherently reliable by satisfying a firmly rooted exception to the hearsay rule nor were the statements corroborated by other evidence presented at the revocation hearing, the hearsay evidence offered by Ortiz does not rise to the level of being so demonstrably reliable that Henderson's limited right to confrontation in a probation revocation hearing should have been denied."
"[U]nder the balancing test, the court “weighs the probationer's interest in confronting a witness against the interests of the State in not producing the witness,” and the “State is required to show good cause for denying confrontation.” Continuing, the court stated:
"Henderson's interest in confronting the witnesses was high in that the nature of the statements was “ ‘detailing the specific criminal wrongdoing of the defendant’ “ in crimes that he denied any involvement in. Dickens, 52 Va.App. at 419, 663 S.E.2d at 551 (quoting Jasper v. Commonwealth, 49 Va.App. 749, 755, 644 S .E.2d 406, 410 (2008)); see also McCormick, 54 F.3d at 222 (“It follows, therefore, that a releasee's interest in cross-examining a laboratory technician regarding a scientific fact is less than would be his interest, for example, in confronting a hearsay declarant regarding what the declarant may have seen. The truth of the former can be verified through methods of science; the truth of the later can best be verified through the rigor of cross-examination, conducted under the circumspect eye of the district court.”).
The court found against the State under the balancing test as well:
"In short, the record reflects no reason advanced by the Commonwealth as to what governmental interest was served by not producing the witnesses against Henderson. Thus, Henderson's interest in confronting the witnesses who spoke with Ortiz necessarily outweighed the interest of the Commonwealth in not producing them. In this case, the Commonwealth neither satisfied Henderson's due process right to confront the adverse witnesses against him nor adequately justified its failure to do so. Curtis, 626 F.3d at 548 (“Instead of hindering Curtis's ability to test the victim's statements, the government did as much as it could to facilitate it.”). Thus, the circuit court could not, and therefore did not, balance Henderson's interest in confronting the witnesses against him against any interest the Commonwealth may have had in denying Henderson that right.
As a result, the sentence following the revocation hearing was reversed, and the matter was remanded for a new hearing.


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OUI Appeal - Mass. Court Says Registry Records Violate Confrontation Clause

In our 3rd installment of a 3-day series on government records - admissibility and confrontation - is a case provided by Lloyd Boyer and Thomas Workman. In Commonwealth v. Parenteau, the Supreme Court of Massachusetts held that certain RMV records were admitted in violation of the Confrontation Clause. The document in question was actually a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant, Peter L. Parenteau, on May 2, 2007:

"The thrust of the defendant's argument is that the admission in evidence of the registry certificate, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment. The defendant contends that the certificate was created exclusively for trial so the Commonwealth could prove a fact necessary to convict him, namely, that he had been notified of the ten-year revocation of his driver's license. Because he challenged such notice, the defendant continues, any attested document that served as evidence to the contrary was a testimonial statement that was subject to cross-examination. We agree."

The court discussed the basic confrontation clause prohibition:

"[T]he United States Supreme Court held that the out-of-court "[t]estimonial" statements of a witness are inadmissible at trial except where the witness is unavailable and the defendant had a prior opportunity for cross-examination. The Court stated that the confrontation clause applies to "witnesses" against the accused, "in other words, those who 'bear testimony.' " Id. at 51, quoting 2 N. Webster, An American Dictionary of the English Language (1828). " 'Testimony,' in turn, is typically '[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.' " Crawford v. Washington, supra, quoting Webster, supra. Although the Supreme Court declined to articulate a "comprehensive definition" of "testimonial" statements, Crawford, supra at 68, it did describe various formulations of the "core class" of such statements:

"[ (1) ] ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially[; (2) ] 'extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions'[; or (3) ] statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Explaining why this particular document violated the confrontation clause (as opposed to other RMV records), the court explained:

"We conclude that the registry certificate, like a certificate of drug analysis, is testimonial in nature. It is a solemn declaration made by the registrar for the purpose of establishing the fact that a notice of license revocation was mailed to the defendant on May 2, 2007, and, by inference, was received by him. The registry certificate was dated July 24, 2009, nearly two months after the criminal complaint for operating a motor vehicle after license revocation had issued against the defendant. As such, it plainly was made for use at the defendant's trial as prima facie evidence that he was notified of his license revocation, an essential element of the charged crime that the Commonwealth was required to prove. The certificate did not simply attest to the existence and authenticity of records kept by the registry but made a factual representation based on those records that a particular action had been performed--notice had been mailed on a specified date. See, e.g., State v. Jasper, 158 Wash.App. 518, 531-532 (2010) (affidavit from legal custodian of driving records attesting that records showed that defendant's driver's license was suspended on particular day was testimonial for confrontation clause purposes). The mere existence of a copy of the notice of license revocation in the registrar's files did not, in and of itself, constitute proof that it was mailed to the defendant. Because the certificate is a testimonial statement, its admission at trial in the absence of testimony from a registry witness violated the defendant's Sixth Amendment right to confrontation."

In rejecting the State's argument that the attestation was a business record, the court stated:

"[T]he Court pointed out in Melendez-Diaz, supra at 2538, that business records are not admissible at trial "if the regularly conducted business activity is the production of evidence for use at trial." See Palmer v. Hoffman, 318 U.S. 109, 114 (1943) (holding that accident report provided by railroad company employee did not qualify as business record where essentially prepared for use "in litigating, not in railroading"). It followed, therefore, that a clerk "was permitted 'to certify to the correctness of a copy of a record kept in his office,' but had 'no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.' " Melendez-Diaz, supra at 2539, quoting State v. Wilson, 141 La. 404, 409 (1917). The Court in Melendez-Diaz further explained that "[b]usiness and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because--having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial-- they are not testimonial." Melendez-Diaz, supra at 2539-2540. See Commonwealth v. Weeks, 77 Mass.App.Ct. 1, 5-7 (2010) (holding that admission in evidence of certified copies of docket sheets of defendant's prior convictions did not violate defendant's Sixth Amendment right to confrontation because such records are not testimonial). Thus, when determining the admissibility of a particular business record, a court must examine carefully the purpose for which it was created. See id. at 5.

"We agree with the Commonwealth that the actual notice of the defendant's license revocation, dated May 2, 2007, constitutes a business record of the registry, created and kept in the ordinary course of its affairs. [FN9] However, there is no evidence of the existence of a contemporaneous business record showing that the notice was mailed on that date. If such a record had been created at the time the notice was mailed and preserved by the registry as part of the administration of its regular business affairs, then it would have been admissible at trial. That would have been the correct procedure for the admission of a business record from the registry. Here, however, the only evidence that the notice was mailed to the defendant is the registry certificate dated July 24, 2009, three months before trial, attesting to that fact. Such certificate was not created as part of the administration of the registry's regular business affairs, but for the purpose of establishing an essential fact at trial. Accordingly, the registry certificate did not constitute a nontestimonial business record."

Concluding that the admission of the certificate of service was improperly admitted, the court reversed the conviction and remanded for further proceedings.


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DUI Appeal - Ohio Says BMV Records Violate law

This is the second installment in a three-part DAD discussion of government records admissibility and/or confrontation clause issues. The case of State of Ohio v. Lee, 191 Ohio App.3d 219, 945 N.E.2d 595, 2010 -Ohio- 6276, was provided to DAD by NCDD member Jeff Meadows. Here, the defendant appealed his conviction based in part on the alleged erroneous admission of defendant's Bureau of Motor Vehicles (BMV) record (transcript) which was used to prove five prior OVI convictions. The appeals court agreed, and held that the records were not sufficiently 'certified' to allow them to be introduced under particular business records or public records exceptions. Since they were not so 'certified', the court held that their admission without live testimony to otherwise authenticate the documents violated the confrontation clause.
In Ohio, Evid.R. 901 provides that authentication or identification of a piece of evidence is a condition precedent to the admissibility of that evidence. Evid.R. 902 lists certain items that are self-authenticating so as to negate the need for any extrinsic evidence in support of the item's admissibility. An item that is not self-authenticating must be properly authenticated by other means.
The defendant on appeal argued that the transcript was neither properly certified nor sufficient to be self-authenticating because it was not authenticated by a live witness and did not contain a notarization, signature, or affidavit from an individual at the BMV. According to the court's recital of the evidence:

"The transcript in this case is accompanied by a cover page stating that “[t]his certifies that a search has been made of the files and records of the Ohio Registrar of Motor Vehicles; that the attached documents are true and accurate copies of the files or records of the Registrar; and that the Registrar's official seal has been affixed in accordance with the Ohio Revised Code (R.C.) 4501.34(A), which states in part: ‘[The Registrar] shall adopt a seal bearing the inscription: Motor Vehicle Registrar of Ohio. The seal shall be affixed to all writs and authenticated copies of records, when it has been so attached, such copies shall be received in evidence with the same effect as other public records. All courts shall take judicial notice of the seal.’ ” Further, the cover page contains an official seal, which was printed on the document."

In holding that the record was inadmissible, the court stated:

"However, no individual or employee of the Bureau of Motor Vehicles is identified on the document as certifying the record and there is no signature, notarization, or affidavit attesting to the record's authenticity. The cover page contains a notation indicating that the record may have been created “By: TVNSICKL.” Yet no further information is given to suggest the identity of this individual, the individual's position at the BMV, or the individual's knowledge of appellant's driving record. Absent such information and a signature attesting to the record's authenticity, the document does not qualify as a certified record under R.C. 2945.75(B). Moreover, R.C. 4501.34(A) allows for BMV records to be admitted into evidence, but it similarly requires that these records be “authenticated.” Without identification of an individual attesting to the record's authenticity or a signature providing for the records authenticity, no “authentication” exists. See Evid.R. 901. Like the state in McCallum, the prosecution in this case attempted to introduce appellant's BMV record through the testimony of the arresting officer, but, as in McCallum, the officer is not an individual capable of authenticating the record because he had no personal knowledge of the contents of the exhibit."

As far as the inadmissibility of the document under the other statutory provisions, the court stated:
Further, Evid.R. 902 allows certain types of evidence to be admitted as self-authenticating. The BMV record in this case does not qualify under any category of self-authenticating evidence. The applicable provisions of Evid.R. 902 under which a BMV record could arguably qualify provide as follows:

“(1) Domestic public documents under seal. A document bearing a seal purporting to be that of * * * any State * * * or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.

“(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. * * *

“(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio. * * *

“(8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner **603 provided by law by a notary public or other officer authorized by law to take acknowledgments. * * *

“(10) Presumptions created by law. Any signature, document, or other matter declared by any law of a jurisdiction, state or federal, to be presumptively or prima facie genuine or authentic.”

The appeals court explained why the document did not qualify as a self-authenticating document as follows:

"Subsections (1) and (2) of Evid.R. 902 both require an accompanying signature. As described above, the BMV record in this case bears no signature. Subsection (4) states that the record must be accompanied by an acknowledgement from a “custodian or other person authorized to make the certification.” There is no indication on the BMV record that a custodian or authorized individual certified the record. The section also refers to subsections (1), (2), and (3), which require accompanying signatures. Subsections (8) and (10) refer to documents executed or declared by law to be authentic. In this case, the applicable Ohio law for authenticating BMV records is R.C. 4501.34(A). As previously discussed, the BMV record does not comply with R.C. 4501.34(A). Accordingly, the BMV record submitted in this case does not qualify as a self-authenticating document under Evid.R. 902."




Editor's Note: In a prior case mentioned in the opinion (McCallum) the cover page certification document contained a name but not a seal, whereas here the cover page contained a seal but not a name. Over the course of time it appears that both the Bureau of Motor Vehicles became lazy with the certifications, until they simply failed to strictly comply with the law. It would be prudent, in light of the above, to review your own Motor Vehicle documents to see if the same deficiencies exist.


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OUI Appeal - Mass. Court Bars Probation Records Under Confrontation Clause

There appears to be a plethora of decisions recently involving the use and admission of certain records of prior convictions maintained by state agencies. Over the next 3 days, DAD will feature these decisions. Today's decision was provided by NCDD member Greg Oberhauser. In Commonwealth v. Ellis 10-P-419, the defendant was convicted of his fourth OUI offense.

The defendant's primary appellate challenges revolved around the admission of RMV records and of probation records of the South Boston Division of the District Court Department [FN1] during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) ("A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses"). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.

On appeal, the court addressed the admissibility of exhibit A-1, the certified conviction record, the court stated:

"Certified court records of conviction are admissible under a hearsay exception for business records. Moreover, "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial" (citing to Melendez-Diaz, 129 S.Ct. at 2539-2540)

With regard to exhibit A-2, the probation record, the court held:

"[T]here was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832."

With regard to exhibit A-6, the Registry of Motor Vehicles (RMV) records, the court held:

"The defendant objected at trial to, and challenges in this appeal, the introduction of the RMV records. The contention that there was a Melendez-Diaz error in admission of these registry records, which list motor vehicle registration history, is unavailing. The registration records are kept in the ordinary course of the business of the RMV and were admissible as business records and as summaries of records regularly maintained by the registry of motor vehicles. * * * Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G.L. c. 233, § 78, as well as pursuant to G.L. c. 233, § 76")."

In affirming the conviction, the trial court concluded that:

"Notwithstanding the Melendez-Diaz error in the admission of exhibit A-2, the probation certification, we conclude that the introduction was harmless beyond a reasonable doubt because a certified copy of the conviction was introduced as exhibit A-1."

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DUI Appeal - Mississippi Court Allows Inspector Records Despite Lack of Confrontation

This case comes to DAD thanks to the watchful eyes of NCDD member Lance Mixon. In Matthies v. State of Mississippi, --- So.3d ----, 2011 WL 2120060 (Miss.App.), the defendant argued on appeal that his confrontation rights were violated when the person who 'calibrated' the machine did not testify at trial. The calibration certificates were filled out on September 1, 2008, and October 2, 2008, and certify that the Intoxilyzer 8000 machine administered to Matthies was in “working condition” and met “acceptable standards of accuracy.”

The Mississippi Appeals Court first reviewed cases from other jurisdictions involving similar issues:

"Since the Melendez–Diaz Court expressly declined to answer the question before us, we look to other jurisdictions. Courts having occasion to consider intoxilyzer inspection, maintenance, or calibration records post- Melendez-Diaz have almost uniformly agreed that such records are nontestimonial in nature. See United States v. Forstell, 656 F.Supp.2d 578, 580–82 (E.D.Va.2009); State v. Linder, 2010 WL 3760744, *2 (Ariz . Ct.App.2010); Jacobson v. State, 703 S.E.2d 376, 379 (Ga.Ct.App.2010); People v. Jacobs, 939 N.E.2d 64, 71–72 (Ill.App.Ct.2010); Ramirez v. State, 928 N.E.2d 214, 219–20 (Ind .Ct.App.2010); State v. Johnson, 233 P.3d 290, 299 (Kan.Ct.App.2010); State v. Bergin, 217 P.3d 1087, 1089 (Or.Ct.App.2009); Settlemire v. State, 323 S.W.3d 520, 521–22 (Tex.Ct.App.2010); Hamilton v. State, 2010 WL 4260608, * 3 (Alaska Ct.App.2010) (unreported decision). But see United States v. Gorder, 726 F.Supp.2d 1307, 1314 (D.Utah 2010) (finding “Intoxilyzer 8000 Operational Checklist” testimonial).

The Mississippi court found the language in the Ramirez decision (cited above) most persuasive. "In Ramirez, the Indiana Court of Appeals confronted similar calibration certificates and found:

"Melendez–Diaz does not hold that routine calibration records are always nontestimonial. But at a minimum it leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford. ... The certificates do not comprise ex parte in-court testimony or its functional equivalent. They are not formalized testimonial materials like sworn affidavits. Moreover, while the certificates contemplate use in criminal trials, they are completed in advance of any specific alleged drunk-driving incident and breath test administration and are not created for the prosecution of any particular defendant." Ramirez, 928 N.E.2d at 219.

The Matthies court concluded:

"The certificates at issue here do nothing more than verify the accuracy of the equipment. Though the Intoxilyzer was calibrated for use in criminal prosecutions, the certificates were not specifically prepared with an eye on prosecuting Matthies. Therefore, the calibration records in this case are different from the lab analysts' certificates at issue in Melendez–Diaz, which were prepared after the drug seizure to establish at the defendant's trial that the substance obtained from him was cocaine."

Editor's Note: What bothers this editor the most from these decisions is the claim that 'all the inspector is doing is finding the machines accurate'. However, the machines themselves are designed to do the same thing that was found problematic in Melendez-Diaz: determine the identity of a particular substance and then subsequently weigh it. Whereas Melendez identified the substance in the bag as cocaine, in this case the machine identified the substance in the lungs as alcohol. An inspector who 'calibrates' a device is performing some of the same activities that are performed by a GC tech. Finally, the Intoxilyzer actually 'weighs' the amount of alcohol as well, which is a key component to the innocence or guilt of the driver. It seems to me that these courts are being disingenuous in their so-called distinctions between drug gc-ms cases and dui breath-test cases.


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DWI Appeal - Notice and Demand Statutes and the Right of Confrontation

After SCOTUS approved of the use of notice-and-demand statutes, counsel needs to be conscientious of these provisions. In State of New Jersey v. Heisler, --- A.3d ----, 2011 WL 1885670 (N.J.Super.A.D.) the defendant was charged with (and convicted of) driving under the influence of marijuana. The New Jersey statute first requires the State to notify a defendant at least twenty days before trial that it intends to offer into evidence a laboratory certificate (lab certificate) regarding the composition, quality and quantity of drugs, and must furnish defendant with a copy of the certificate and “all reports relating to the analysis in question.” Second, the defendant must object within ten days of receiving the State's notice of intent, or else waive any objections to the admission of the lab certificate.

In the case sub judice, the State served defendant with a copy of the lab certificate and notice of intent to offer it into evidence, but the State did not furnish the related reports. More than ten days after receiving the certificate, defendant objected. The municipal court agreed with the State that defendant's objection was untimely, and allowed the certificate into evidence.

The appeals court found that the delay by the State in supplying the required reports tolled the running of the 10 day provision for objecting, and therefore reversed the trial court's ruling:

"We find persuasive defendant's argument that he was not obliged to object to the introduction of the lab certificate until ten days after receiving supporting lab reports and data. To rule otherwise would undermine the dual goals of the notice and demand statute, N .J.S.A. 2C:35–19: (1) to enable defendants to make informed decisions regarding whether to object; and (2) to conserve time and resources of State Laboratory personnel by avoiding unnecessary court appearances. Because defendant objected before the State furnished him with the supporting materials, his objection was timely. Therefore, the court erred in admitting the lab certificate without testimony from the lab analyst and an opportunity for cross-examination."

The case was remanded for a new trial. Of note was the appellate court's additional ruling barring the State from admitting the lab evidence:

"However, the State shall not have the opportunity to call the lab analyst and to cure the initial error of admitting the lab certificate. “A remand is inappropriate in order to afford the State the opportunity to provide proofs it should have provided in the initial trial which were necessary to support a conviction.” State v. McLendon, 331 N.J.Super. 104, 108 (App.Div.2000)."

Lastly, there was an interesting discussion of how to deal with defense attorneys who ALWAYS object to lab reports and insist on confrontation:

While we have discouraged a defendant's “pro forma insistence” that the author of a lab certificate appear in court, we have recognized the defendant's right of confrontation. State v. Kent, supra, 391 N.J.Super. at 380; see also id. at 385–90 (Stern, J., concurring) (concluding that the Supreme Court would apply the Confrontation Clause protections to defendants in prosecutions for quasi-criminal violations involving driving while intoxicated). A defendant need not justify his or her decision to exercise his or her constitutional right of confrontation. An accused is entitled to confront the lab certificate's author, so long as a timely objection is made. State v. Rehmann, ––– N.J.Super. ––––, –––– (App.Div.2011) (slip op. at 5) (“Prior to Melendez–Diaz, we recognized the accused's right to confront the author of a BAC certificate.”); State v. Kent, supra, 391 N.J.Super. at 375 (holding that “defendant was constitutionally entitled to cross-examine the declarants who authored” laboratory reports and blood sample certificate); id. at 382 (stating that defendant may waive his confrontation right by failing to make timely demand for the author's appearance)."

"The effective operation of the notice and demand statute depends in part on the presumption that, as a practical matter, “in the majority of cases a defendant will not challenge the certificate ‘either because the focus of the defense is otherwise or because he or she may not wish to suffer the piling-on effect of a live witness when there is no true contest over the nature of the tested substance.’ “ State v. Simbara, supra, 175 N.J. at 49 (quoting State v. Miller, supra, 170 N.J. at 431). However, if the defendant is unable to determine, because of the absence of laboratory data, whether there is a basis to wage a “true contest” over the nature of the substance, then the defendant may lodge a protective objection."

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OUI Appeal - Massachusetts Confrontation Clause and Probation Records

This case comes to DAD thanks to the watchful eyes of attorneys Tom Workman and Greg Oberhauser. In Commonwealth v. Ellis, No. 10-P-419 (decided 4-25-11) the defendant challenged the proof of his prior convictions which were made by introduction of both a Registry of Motor Vehicles (RMV) records and a probation record as violative of his confrontation clause rights, and he also claimed that there was insufficient identification evidence to connect the defendant to the prior OUI conviction on which the judge relied, of OUI as a third offense. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled "Certification of Probation Information and Prior OUI Offense" and signed by an officer of that court's probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant's identity as the prior offender. The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.



Citing to the US Supreme Court's ruling, and subsequent state cases, the appeals court wrote that "[b]usiness and public records are generally admissible absent confrontation ... because-- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial--they are not testimonial." Melendez-Diaz, 129 S.Ct. at 2539-2540. Therefore they held that the certified docket conviction record in this case was properly admitted absent confrontation.




The defendant claimed that the RMV records were created by the government solely to prove an element of defendants case - prior convictions. The appeals court responded that "[u]nlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution's case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records."



On the other hand, this court found that the probation reports were admitted in violation of the Confrontation Clause:

"In contrast, there was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation--the litigation being the defendant's criminal trial for OUI as a fourth offense, which is the subject of this appeal. [FN6] In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is "prepared specifically for use at [the defendant's] trial" and is testimonial, "[w]hether or not [it] qualif[ies] as [a] business or official record[ ]." Melendez-Diaz, 129 S.Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass.App.Ct. at 832.

The testimonial aspects embedded in the probation certification are discernible when it is considered that the certificate was prepared by a person who, in the writing thereof, engaged in certain deliberative decisions, and formulated evaluative statements and opinions in framing answers to the matters appearing on the pre-printed form lines of the probation certification, so that the certification could be used in litigation. For example, in this case, in response to the line inquiry on the certification about a "[p]hoto I.D. (if available)," the writer stated, "N/A"; in response to the line inquiry whether "[t]he defendant was assigned to: [a]lcohol [e]ducation [and] [t]reatment [p]rogram[s]," the writer stated, "N/A"; and in response to the line inquiry concerning the involved "[p]olice [d]epartment (if known)," the writer responded, "State." The compilation of such information required that the writer of this document review certain other documents (which are not specified in any way), engage in a deliberative process, and enter evaluative and opinion-based responses to the various certification line inquiries. Hence, there is a testimonial component which underlies what the writer did in reviewing documents and answering questions on the probation certification form. These actions and nonactions by the writer were ones that would be subject to interrogation in cross-examination. In sum, the "Certification of Probation Information and Prior OUI Offense" implicates confrontation rights under Melendez-Diaz. [FN7] It was error to admit the document absent an opportunity at or before trial to cross-examine the writer."

Unfortunately, the appeals court found that, even in the absence of the erroneously admitted probation record, the remaining admissible evidence was sufficeint to prove both the prior conviction and that the defendant was the offender in the prior case. However, the case is helpful for the propositions regarding probation reports.

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