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In a significant new case on the Confrontation Clause, the Court said it would consider the constitutionality of prosecutors' offering a crime lab report as evidence in a criminal trial, instead of the live testimony of the expert who prepared the report. (Melendez-Diaz v. Massachusetts, 07-591). The case involves Luis E. Melendez-Diaz, charged with cocaine trafficking in the Dorchester section of Boston. At his trial, prosecutors offered crime lab reports about substances taken from one of the men arrested in the incident. The appeal says that 44 states and Washington, D.C., now permit courts to admit forensic chemists' reports to establish that seized substances are illegal drugs, even when the chemists themselves are not called to testify. The Supreme Court had previously passed up review of several other cases raising the Confrontation Clause issue regarding crime lab reports.
Due to Harcrow's posture -- ruling for the defense on the substantive issue but then denying relief under the harmless error doctrine -- neither party can get Harcrow up to the Supremes as a Melendez-Diaz trailer. But obviously whatever case law the Supremes make will supplant (possibly while ratifying) Harcrow's Crawford analysis.
Here's a link to the Melendez-Diaz cert petition, courtesy of SCOTUSblog. Here's the QP:
Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).We discussed Harcrow here.
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2 comments:
What I find most interesting is that nobody even pays lip service to the CAAF's creation of a new exception to the Confrontation Clause. The CAAF created this new exception when it affirmed U.S. v. Rankin. Of particular note, U.S. v. Rankin states that a statement is nontestimonial if the primary purpose of the statement is nontestimonial.
My reading of the Constitution leads me to believe that there is no "primary purpose" exception to the Confrontation Clause. Essentially, with limited analysis, the CAAF approves of a new excpetion to the the Confrontation Clause.
This new "primary purpose" exception to the Confrontation Clause continues to go unchallenged by Appellate Defense.
This issue and the case of U.S. v. Harcrow is discussed in detail in an article contained in Volume 55 of the Naval Law Review. The article is: The CONTINUING FALLOUT FROM CRAWFORD: IMPLICATIONS FOR MILITARY JUSTICE PRACTITIONERS.
Unfortunately, last I checked, this article is not yet available on the NJS website.
Of course, the Harcrow case did not involve statements that served both testimonial and non-testimonial purposes so the Rankin primary purpose test was not really at issue. Harcrow involved statements contained in lab documents that were unequivocally initiated by the police and generated by the desire to discover evidence against the Appellant. As such, CAAF found error when the government introduced these reports at trial without making the preparing expert available for cross-examination.
Even so, I believe your view of the primary purpose test set forth in Rankin is not as clear cut as you present.
Though the Supreme Court in Davis provided a clearer concept of what “testimonial” was meant to encompass, the Court refrained from answering whether it is sufficient that the declarant knows or intends that the statement will be used in a prosecution; that the government actor knows or intends that the received statement will be used in a prosecution; or whether both of these conditions might be necessary for a statement to be testimonial. The Court left these issues open for lower courts to flesh out and that is exactly what the CAAF did in Rankin.
I, for one, agree with CAAF’s take: where government actors take statements from declarants who know that the primary purpose of such statements is future use in criminal litigation (i.e., the statements were made in anticipation of litigation), those statements cannot be admitted where the declarant has not been made available for cross-examination, regardless of the statements’ purported reliability. In my humble opinion, this position reflects the heart of the Crawford decision.
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