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More cert petitions

By Richard D. Friedman

I have previously written about the pending cert petition in Melendez-Diaz v. Massachusetts. Alert blog reader (I?m adapting a line from Dave Barry there) Richard Klibaner has called attention to a couple of other pending petitions that pose similar issues.

One is Geier v. California, No. 07-7770. You can read the petition by clicking here and the brief in opposition by clicking here. It appears this case has a big harmless error problem.

The other is O?Maley v. New Hampshire, No. 07-7577. You can read the petition by clicking here, the brief in opposition by clicking here, the reply brief in support of the petition by clicking here, and the amicus brief of the National College for DUI Defense in support of the petition by clicking here. O?Maley ? in which the state supreme court relies heavily on the state decision in Geier ? is somewhat different from Melendez-Diaz. In Melendez-Diaz, the state took advantage of a state statute allowing admission of a certificate of a lab test without any sponsoring witness. In O?Maley, the assistant lab director testified as to the defendant?s blood alcohol level. But the technician who drew the blood and prepared a report certifying that fact did not testify at trial, and neither did the analyst who tested the blood. The state supreme court held the initial certificate to be non-testimonial. But this certificate was a crucial link in proving the defendant?s guilt, because it was an essential part of the proof that the blood tested did in fact belong to the defendant. And the state supreme court also held the blood test results to be non-testimonial. In a technical sense that is right; the test results are the result of a process and of machinery, not a human statement. But the assistant director?s testimony had no value at all unless the analyst tested the proper sample and performed the test properly. So that testimony amounted to, ?I have an opinion as to the defendant?s blood alcohol level, based on my assumption [supported by no evidence that will be presented] as to what the analyst did.? If the witness in court testified, ?The analyst told me what blood he worked on and how he did the test,? I think the confrontation violation would be clear. It should be no less clear when the witness implicitly bases his ?opinion? on an assumption as to what the analyst did.

The state supreme court?s decision was clearly based in large part on its perception that cross-examination would not be worth much, because the technician and the analyst would not remember the incident anyway. Three points in response: (1) I don't think Crawford leaves room for saying that confrontation is unnecessary because it wouldn't do any good. (2) If the state supreme court's position were adopted it would amount to giving the prosecution the benefit of a shell game of sorts: Crawford has adhered to the doctrine -- mistaken in my view -- that if the witness testifies in court the accused has no basis for a confrontation objection, even if the witness does not remember the substance of her prior statement, because the accused has gotten the benefit of cross-examination by showing the failure of memory. So prosecutors taking advantage of this part of Crawford and of the state decision in O'Maley would argue, "We don't have to bring the witnesses in if their memory would be so bad that cross would be useless. But if we did bring them in, the fact that their memory would be bad would make cross valuable for the accused. (3) The memory problem is real. A solution to it is to provide an early deposition. In fact, I think the Supreme Court ought to recognize that if the witness doesn't remember the subject matter of the prior statement then cross-examination is clearly impaired, so if the prosecution wants to preserve the testimony in the face of likely memory loss it ought to provide an opportunity for a deposition. But that's a battle for another day.

I think that O?Maley as well as Melendez-Diaz presents a cert-worthy situation. The basic approach of the O'Maley court has been taken by others as well, including the U.S. Court of Appeals for the Fourth Circuit in United States v. Washington, 498 F.3d 225 (4th Cir. 2007), from which a cert petition is also pending (though behind the schedule of the others, and presumably to be held if the petition in O'Maley is granted). The issues are sufficiently different, though obviously related, that it might be optimal for the Court to grant cert in both O'Maley and Melendez-Diaz. But if it is inclined to grant in only one case, Melendez-Diaz is probably the one to pick, because it is significantly simpler and more straightforward.

Full post as published by The Confrontation Blog on February 12, 2008 (boomark / email).