07 July 2007

Confrontation Clause Cases 2

On 25 October and 6 November, the CAAF will hear oral argument on two Marine Corps confrontation clause cases.

In
United States v. Pack, NMCCA 200401923 (N-M. Ct. Crim. App. Oct. 26, 2006), over defense objection, the military judge permitted an 8-year-old girl who was alleging that her step-father molested her to testify from a remote location. Based on Maryland v. Craig, 497 U.S. 836 (1990) and Mil. R. Evid. 611(d), the NMCCA held that the military judge did not err in permitting testimony from a remote location. The NMCCA went on to say:
We are not persuaded by the appellant's further contention that the decision in Crawford v. Washington, 541 U.S. 36 (2004) render the holding in Craig unsound. Crawford applies only to testimonial statements made prior to trial. The live, remote video testimony at issue in this case was presented at trial. In addition to being a departure from long-standing precedent, the appellant's reasoning assumes away the constitutional issue in this case -- whether the confrontation that occurred is constitutionally sufficient. Crawford does not address this question. The proper standard to be applied is that set forth in Craig, not Crawford. Applying that standard, we hold that the appellant's right to confrontation of the witness in this case was not violated. This assignment of error is without merit.
The last sentence of the quote is normally reserved for cases in which an appellant's claim was either frivolous or close to it. Although the NMCCA ruled against the appellant, the issue is hardly frivolous, as the CAAF will hear oral argument on Pack, No. 07-0085/MC on 25 October, and the Supreme Court has not resolved the issue. The argument will be held at a "remote location" to be announced later as part of the CAAF's outreach program.

In
United States v. Harcrow, NMCCA 200401923 (N-M. Ct. Crim. App. Oct 30, 2006), the NMCCA held that two forensic laboratory reports from the Virginia "Department of Criminal Justice Service, Division of Forensic Science," identifying the substances seized as containing residue of heroin and cocaine, were admissible at trial despite Crawford. Citing United States v. Magyari, 63 M.J. 123 (C.A.A.F. 2006), the NMCCA finds the reports non-testimonial business records.

Although Magyari did hold that the reports of urinalysis results from a Government drug testing laboratory were non-testimonial business records, it specifically limited the decision to the facts of the case. Urinalysis reports of specimens collected under the military drug testing program are not "prepared at the behest of law enforcement in anticipation of a prosecution." The facts in Harcrow are different. This crime laboratory, although clearly trying to objectively identify the substances, does prepare its reports at the behest of law enforcement in anticipation of a prosecution.

The CAAF will hear oral argument on Harcrow, No. 07-0135/MC on 6 November. Although the Supreme Court has not granted on this issue so far, a petition asking that question has been filed by the State of Missouri.



1 comment:

Regina said...

You are correct. The CAAF was very specific in their holding in Magyari. The court stated: “[W]e reach this conclusion based on the facts of this case.” The CAAF did not equivocate in rejecting the government’s contention that business and public records are per se nontestimonial. Instead, the court opined that “[t]he government’s contention that lab reports are inherently not testimonial because they are business and public records goes too far.” Importantly, albeit in dicta, the CAAF further opined that laboratory reports may be testimonial when they are “prepared at the behest of law enforcement in anticipation of a prosecution . . . .” .

Under Magyari, “laboratory results or other types of routine records may become testimonial where an accused is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence.” While unfortunate for the government, when forensic testing is done in furtherance of a specific investigation, Magyari appears to require that an accused be confronted by the personnel that performed the tests contained in the report the government seeks to admit.

However, despite Magyari, in its opinion in Harcrow (unpublished), the NMCCA inexplicably held that the Confrontation Clause is not applicable to laboratory reports prepared in furtherance of a specific criminal investigation.

The facts of Harcrow are straightforward. In United States v. Harcrow, the appellant was arrested in his home by civilian authorities for failure to appear in civilian court on charges unrelated to his court-martial. During the course of the appellant’s arrest, “law enforcement personnel seized drug paraphernalia, some of which contained residue of heroin and cocaine.”

At the appellant’s court-martial, the government admitted reports containing the results of laboratory testing of residue on metal spoons and plastic bags that were seized from the appellant’s residence.

Did I miss something here? It seems very clear that the testing of this evidence was initiated by the prosecution to discover incriminating evidence. That being the case, the government must bring in the person or persons that tested the evidence vice a person that merely knows about the testing procedures. Even though counsel did not object (reasonable based on the state of the law at the time), the CAAF will almost certainly find plain error and reverse the case.