Tuesday, June 30, 2009

Will Melendez-Diaz compel confrontation for parole revocation certificates?

R.J. MacReady over at the Texas Court of Criminal Appeals blog analyzes possible implications for Texas from last week's Melendez-Diaz ruling by SCOTUS. Though Scalia expressly cited Texas' statute on confrontation of lab experts as an example of state law that already complied with the new ruling, MacReady thinks Melendez-Diaz could result in a change to how Texas courts view confrontation in cases involving business records and parole revocation certificates:
Scalia also goes into talk about business records, and this portion of he opinion may be a little more than cosmetic. Here, Scalia makes clear that business records that satisfy the hearsay definition of a business record aren't necessarily immune from a Confrontation Clause objection, either. This may come as a shock to Judge Keasler who concurred in Smith v. Texas that business records are not testimonial under Crawford. According to Scalia, business records that are kept in the normal course of business may not violate Crawford, but we have to look at whether the regularly conducted business activity is production of evidence for use at trial. Scalia notes that an accident report prepared by an employee of a railroad company did not qualify as a business record because it was calculated for use essentially in the courts, not in the business. Palmer v. Hoffman, 318 U.S. 109 (1943). ...

For some more concrete speculation (yet another paradox), I did immediately ponder the ramification of the jail infraction records at issue in Smith v. State (cited above) and Russeau v. State and the parole revocation certificates in Segundo v. State when I read this opinion. Clearly, this portion of the opinion vindicates the results in Smith and Russeau, namely that narratives contained in jail records are testimonial. But the CCA reached that result by drawing a distinction between a subjective interpretation facts and a sterile recitation of the facts. In Segundo, the parole revocation certificates did not violate Crawford because they contained sterile recitations of the fact of revocation rather than a detailed description of the cause. Upon reading this opinion, it's arguable that this "sterile recitation of the facts" paradigm could be seen as another attempt to impose the same reliability standard that the majority rejects in Melendez-Diaz. The flip side of this argument is that the more sterile record notations are found in records that are not prepared in anticipation for trial, but necessary notations so that the jailers who have access to these records and the administrators that make housing decisions need to rely upon them when moving prisoners from place to place. I don't know. I'm just going off the dome. [As a side note, Scalia does mention in footnote 2 that medical reports created for treatment purposes would not be testimonial under the decision in this case.] But I will be interested to see how these type of evidence is considered going forward.

Still, the thing to remember is that this case only dealt with drug lab results and SCOTUS pretty much endorsed the Texas statutory notice-and-demand scheme for drug analysis. For you legislative history buffs, this statute was so cleverly suggested by the prescient Jay Johannes of the Colorado County Attorney's Office, drafted (the first draft anyway) by Ken Sparks the Colorado County Attorney, and sponsored by House Rep. Debbie Riddle. They're the ones that crafted the legislation, and their foresight may have shielded Texas from another Apprendi-like storm.

More problematically for the State, the majority has indicated that not all business records are going to be immune to a Confrontation Clause challenge and courts will need to look to whether the records are prepared for business or for trial. Justice Kennedy fears that lack of a clear definition of what witnesses we're talking about could grind the criminal justice system to a halt. I'm sure it won't, but we'll have to wait a little for the smoke to clear so we can look through the rubble.
Judging by Scalia's distinction on business records - whether the document was prepared specifically for use in court - I'd agree with MacReady that the CCA's conclusion about parole revocation certificates being non-testimonial seems highly suspect. Given that Texas' statutes on lab reports already complied with confrontation requirements, that could turn out to be the most important new implication of Melendez-Diaz for the Lone Star State.

See related Grits posts

1 comment:

Anonymous said...

You're beginning to sound like a lawyer:) I'll remember to keep my Black's legal dictionary at the ready next time you are pondering SCOTUS!