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Cases

By Jeffrey Ivashuk

Criminal law -- Driving under influence -- Evidence -- Hearsay --Exceptions -- Public records and reports -- Business records --Confrontation of witnesses -- Testimonial out-of-court statements --Admission of those portions of breath test affidavit pertaining to breath test operator's procedures and observations in administrating the breath test constitute testimonial evidence and violate the Sixth Amendment's Confrontation Clause in light of U.S. Supreme Court's holding in Crawford v. Washington -- Breath test affidavit is testimonial in nature -- Affidavit was created by technician solely for purpose of proving a critical element in defendant's DUI prosecution -- General rule that records kept in ordinary course of business are generally admissible does not apply when record is being prepared at specific request of law enforcement agency and is not simply a record that is normally generated by that business under circumstances that do not involve law enforcement -- In case at issue, it was error to admit those portions of breath test affidavit pertaining to breath test technician's procedures and observations in administering the test -- Although state met its burden of showing that breath technician who prepared affidavit was not available for trial, Crawford's requirement that defendant have prior opportunity for cross-examination was not satisfied -- Discovery deposition does not serve as functional substitute for in-court confrontation of witness and, accordingly, defendant did not waive opportunity to cross-examine technician by failing to depose her under rule 3...continue to full post

Full post as published by JAABlog on May 01, 2008 (boomark / email).