Has been issued.

Here's a link.

Chemist has to testify.

Scalia says that certificates of analysis under CCP Art. 38.41 pass muster. That's a relief.

Wshew. I went right to Kennedy's dissent and it was starting to get scary. In a Day After Tomorrow kind of way.

I had no idea this was such a hotly debated issue. Texas has largely taken the approach adopted by the majority and has not seen any serious negative consequences. I was surprised to learn that so many States, even after Crawford, thought that cross-examination of an expert witness who held key information on proof of an element of the offense, could be skipped by defining that witness' information as nontestimonial.

My initial reaction is that the dissent is overreacting. However, I do think it is irrelevant to constitutional analysis to consider how many cases are plea bargained before deciding whether the Confrontation Clause applies. That's a slippery slope.

And, I didn't think the statistics provided on how many analysts would have to appear and testify was all that shocking. Texas being a big place, we have been dealing with much bigger numbers with little or no problem.

Frankly, Kennedy's dissent probably invents a problem that would not have existed: he wonders out loud if the State has to call everyone that touched the drugs at the lab. That's kind of silly. But, now, you can expect defense attorneys to make the objection and judges who like to read dissents to use it to favor the defense.

This may require changes in practice, though. Not everyone was using a law-enforcement run lab like DPS. Those agencies may have relied heavily on "business records" to get reports into evidence. This opinion seems to put that practice to rest.

I believe the notice-and-demand "certificate of analysis" statute Texas enacted in 2005 was due in large part to the efforts of Ken Sparks. (Shannon will correct me if I'm wrong). Maybe we should have a "Ken's Cap" bronzed to honor him.

Thanks for the tip of the cap!

Jay Johannes had the idea; I wrote the initial draft of the bill; Shannon improved it; Jay and I testified in favor; and Shannon did a lot of legwork to get it passed.

Not bad to get a positive mention from Justice Scalia in a SCOTUS opinion. I didn't know Sparks could also see into the future regarding constitutional litigation.

Not uncommon for Colorado County prosecutors.

One day his Ken's Caps will be valued collectors items.

For a good discussion of this new case, go to this blog.

A related question--I filed a business records affidavit for a criminal mischief case where a house and two other structures were burned down. The business record is from the county appraisal district describing the structures and their value.

First, I don't believe this decision will affect that type of record--but I'd love to hear some arguments to the contrary so I can prep my responses.

Second, for the cert of analysis in 38.41, the statute has written in the time period for the defense to object, and the above discussed case says that's okay. Where is there a time period for objection described for general business records? I have been told in the past it exists but have not found the basis of that. I'm trying to figure out if I need to subpoena the custodian of records at the appraisal district--which is what I was trying to avoid in the first place. Or would I need the actual appraiser who looked at the properties to assess their value?

quote:

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Originally posted by JB:
For a good discussion of this new case, go to this http://www.txccablog.com/

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As a prosecutor, it's hard to beat the solid logic and case interpretation that comes from this site. It's a weekly custom for me to see what this site says about Texas criminal appellate matters.

The county appraisal value question is interesting for Criminal Mischief because the value of the destroyed property could be analogous to the weight of illegal drugs in Melendez-Diaz. As a layman, I'm not sure about the correct terminology but the idea I'm trying to express is that the both the value and the weight influence the level of their respective offenses.

Anyway, I think Scalia is saying is that the purpose of the business record is an important consideration. The crime lab's report analyzing drugs is a business record basically made for the purpose of being evidence while the county appraisal is made for the purpose of levying taxes. I wonder if it matters that the appraisals routinely become "evidence" when the owner disputes the taxable valuation to the appraisal review board?

If the bad guy makes a big deal about the valuation of the structures he burned down perhaps he'd prefer to be charged with Arson?

Suzanne
Would you have an easier time treating the appraisals as Certified Copies of Public Records under Tex. Evid. R. 902? That way you do not have to file the business records affidavit 14 days prior to trial.

From the Crime and Consequence Blog:

The Supreme Court has agreed to hear arguments in a case that could test the limits of Melendez-Diaz v. Massachusetts (07-591) and its ruling on the Confrontation Clause. Lyle Denniston comments at SCOTUSblog that with today's decision to review Briscoe v. Virginia (07-11191), Judge Sotomayor's likely confirmation to succeed Justice Souter could place the Melendez-Diaz decision in jeopardy. We think it is more likely that the new case could control the damage from that decision (or "narrow considerably" as Lyle puts it), but not overrule it.

In Magruder v. Commonwealth, as the case was known in state court, the Supreme Court of Virginia held that Virginia's "notice-and-demand" statutes of � 19.2-187 and � 19.2-187.01, "adequately protect[ed] a criminal defendant's rights under the Confrontation Clause" because it gave the defendant notice of the State's intent to call the witness, and opportunity to summon the lab technician as an adverse witness. The statutes did not violate the Confrontation Clause because there is nothing wrong with asking a defendant to utilize a procedure to secure his right to confrontation.

Full Post

Thanks for the ideas. I tried to argue business record and public record....but somehow the defense was able to confuse the issue by saying that because the documents had stickers saying "Exhibit A" and were printed at my request, they were testimonial, and therefore no longer business records.

It was quite interesting....he actually said my argument for business records and using the affidavit was "insane."

The upside is, I also used the "heinous" (again, defense attorney's words) strategy of charging both crim misch and arson, and without business records, abandoned the crim. misch, proceeded on the arson....and got a guilty. All's well that ends well!

Melendez-Diaz causing problems in other states:

http://www.washingtonpost.com/wp-dyn/content/article/2009/07/22/AR2009072203525.html

What have you noticed?

JAS

quote:

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"Gov. Timothy M. Kaine (D) on Wednesday called a special one-day session of the Virginia legislature for Aug. 19 to address the issue."

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I've talked to some people in Virginia who noticed that our law was cited favorably by Scalia and are interested to know how our courts handle the issue -- or non-issue, as it may be, for Texas. After talking to them, it seems their big problem is a harsh speedy trial act, a problem we don't have here. Interesting.

I have heard there are some judges who say that we have to have the analyst without regard to the statute or the Supreme Court's favorable dicta. This was immediately after the opinion came out. I have not heard of anyone actually excluding a report under these circumstances, however.

I just finished a murder case where the defense was arguing that I could not call the ME that did not do the autopsy (that ME was on vacation), we argued throughout trial and the Judge did let him testify, but it was limited. Just like Crawford, where defense argued after that opinion that all hearsay was abolished; expect the defense to argue against ANY State expert that relies on someone else's actual observations. I will be happy when we have a case here that addresses it.