Articles Tagged with crawford

The CAAF held that there is no right of confrontation at sentencing.  The other rules do apply, such as hearsay, unless you relax the rules (something I rarely if ever do).  United States v. McDonald, 55 M.J. 173 (C.A.A.F. 2001); United States v. George, 52 M.J. 259 (C.A.A.F. 2000).

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review.  Here is the abstract:

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation.  One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.

Now that the current slew of confrontation cases are decided it’s time to regroup.

Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

United States v. Blazier was argued at CAAF and you can hear the oral argument at this link.

The U. S. Supreme Court has granted certiorari in Bullcoming v. New Mexico.  Courtesy of CAAFLog here is the granted issue:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform the laboratory analysis described in the statements.

CAAFLog advises that Pendergrass v. Indiana, No. 09-866, is scheduled for the 10 June case conference at the Supremes.  Here courtesy of Prof. Freidman counsel for Pendergrass and also of Melendez-Diaz and Briscoe “fame,” is the Pendergrass cert petition.  Here also is the state of Indiana’s brief in opposition to certiorari at this link.

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz.   C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense
appellate divisions from the other services, on the following:

We’ve spent a lot of time over the last months addressing Crawford issues in the context of forensic reports.  Let’s not forget that there are some exceptions to Crawford and confrontation.

Professor Colin Miller writes about the co-conspirator “exception” to Crawford.

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant’s trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are non testimonial, even if they are made to confidential informants.

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825).

Thanks to Professor Colin Miller for this piece.

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

United States v. Blazier.  Here are the relevant portions of the opinion written by Judge Ryan for the moment.

This case presents the question whether the admission of drug testing reports” over defense objection violated Appellant’s rights under the Sixth Amendment’s Confrontation Clause.  The antecedent question, whether certain admitted evidence was testimonial, we answer affirmatively, and contrary to the decision of the United States Air Force Court of Criminal Appeals (CCA), United States v. Blazier, 68 M.J. 544 (A.F. Ct. Crim. App. 2008).

Having resolved the threshold question, and given the ubiquity of drug testing within the
military, we conclude that additional briefing is warranted prior to final disposition of the case.

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, _ F.3d _ (No. 08-2825).

Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.

Here is a link to the full cert petition in Pendergrass v. Indiana.  The question presented is:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Pendergrass v. State, 913 N.E.2d 703 (Ind. 2009).