Albuquerque Criminal Lawyer Blog

The 6th Amendment's confrontation clause took a hit in the 10th Circuit Court of Appeals case of U.S. v. Pablo. The case originating in New Mexico involved the introduction of DNA evidence in a rape trial. DNA is commonly introduced in rape prosecutions. However, the method by which the prosecutor introduced the evidence to the jury in Pablo was highly suspect.

In short, a DNA expert who had not been involved in the investigation or preparation of the DNA or serology reports testified to the contents of those reports. The contents of the reports were clearly testimonial and therefore hearsay. The Court acknowledged as much.

However, the Court ruled that in this case and others like it, the hearsay was admissible. The Court, despite the Melendez-Diaz decision stated that the testifying expert was free to rely on the hearsay reports of others in his own testimony.

The Court distinguished Melendez-Diaz where an affidavit of a non-testifying forensic drug expert was admitted against the defendant. The Court stated that in Pablo, the testifying expert was simply relying on the contents of the hearsay reports in the formulation of his own opinions which is allowable under the Federal Rules of Evidence, Rule 703.

The Court stated that under Rule 703, the testifying expert was allowed to present the reports of the non-testifying experts who prepared the DNA and serology reports. Remarkably, the Court allowed for the full admission of those reports despite the fact that the Court fully recognized that the reports were hearsay.

To justify the admission of the otherwise inadmissible hearsay, the Court stated that the admission of the reports to the jury were necessary to allow the jury to properly evaluate the in-court testimony of the testifying expert.

In short, the Court in Pablo renders Melendez-Diaz meaningless. After all, following the Court's logic in Pablo, the disallowed affidavit in Melendez-Diaz would now be admissible in order to validate the in-court testimony of an expert testifying upon the validity of the findings stated in that affidavit.

In short, otherwise inadmissible hearsay is now allowed under Pablo, at least in the 10th Circuit, so long as another expert testifies to the legitimacy of that inadmissible hearsay. The rather odd logic of Pablo, if allowed to stand, would serve a severe blow to the 6th Amendment confrontation clause.

We can only hope that the shortcomings in Pablo will be set straight in the New Mexico case of State v. Bullcoming which has made its way to the United States Supreme Court.

Collins & Collins, P.C.
Albuquerque Attorneys

The 6th Amendment's confrontation clause is crucial in criminal trials because it allows defendants to have a fair trial which the framers spelled out in the Constitution of the United States. The 6th Amendment of the Constitution protects an individual's right to confront their accuser at trial in a criminal case.

The confrontation clause bars the admission of hearsay evidence unless the out of court declarant testifies at trial. In other words, the statements of a witness or alleged victim cannot be admitted into court without the witness' or alleged victim's in-court testimony.

This is particularly important in domestic violence cases. When an alleged victim accuses a person of domestic violence, the alleged victim's and any other witness' statements can only be used against the defendant if they show up to court and testify. There are few exceptions to the rules prohibiting hearsay testimony. These rules would rarely apply in the typical domestic violence case.

At trial, the defendant has a right to cross examine the alleged victim and other State witnesses to determine the truthfulness of their statements. When an alleged victim does not show up to trial, the State usually does not have the necessary evidence to present their case.

By only presenting evidence of a crime without actually having a victim appear in court, the prosecution is attempting evidence based prosecution. Evidence based prosecution which is often attempted by prosecutors in domestic violence cases faces many challenges due to hearsay objections and confrontation issues under the 6th Amendment.

For example, prosecutors will frequently obtain the alleged victim's 911 call. As part of evidence based prosecution, the State may attempt to use the 911 tapes to prove that the defendant committed the alleged act of domestic violence such as battery or assault on a household member. In doing so, the State may argue that this is public record and try to admit this evidence.

The State is attempting to recreate the drama of the alleged incident to a jury through the 911 call. The State is also attempting to illicit statements from the 911 call which may implicate the defendant in wrong-doing. However, once the 911 operator begins to engage in any type of questioning, the statements are then testimonial hearsay and the confrontation clause bars this evidence from use at trial. Perhaps just as problematic is the identification of the caller. This issue would be raised as an objection for failure to authenticate the caller's identification.

If the State's only case is evidence based prosecution without eyewitness testimony, the State has an uphill battle when presenting its case. The prosecution will have a hard time overcoming the evidentiary objections to hearsay and authentication.

Collins & Collins, P.C.
Albuquerque Attorneys

In keeping with the New Mexico Supreme Court's decision in State v. Aragon, the New Mexico Court of Appeals upholds a defendant facing drug charges rights to confront and cross examine the State's forensic chemist.

The case of State v. Delgado has an interesting procedural history. The defendant's original appeal of his convictions for possession of cocaine and tampering with evidence was denied by the New Mexico Court of Appeals. However, the case was sent back to the Court of Appeals after a series of 6th Amendment right to confrontation cases beginning with the United States Supreme Court decision of Melendez-Diaz. Based upon Melendez-Diaz, the New Mexico Supreme Court held in State v. Aragon that the testimony of the forensic chemist who conducted the testing and prepared the forensic report was required. The Court held that it was a violation of a defendant's 6th Amendment rights to have a substitute forensic chemist testify on the opinions of the non-testifying chemist.

In light of the ruling in Aragon, the Supreme Court remanded the case of State v. Delgado back to the Court of Appeals. The Court of Appeals then issued its ruling consistent with the decisions in Melendez-Diaz and Aragon. On remand, the Court of Appeals issued its ruling in a Memorandum Opinion. Upon the motion of the defendant, the Court substituted the Memorandum with a formally published opinion.

In short, the Courts in New Mexico will, as they must, adhere to the Melendez-Diaz decision. The rash of cases from State v. Aragon, State v. Bullcoming and now State v. Delgado make clear the State's commitment to the 6th Amendment rights of confrontation. The prosecutor must bring the forensic chemist who tested the drugs and prepared the forensic report. In the absence of this testimony, the drug evidence is inadmissible.

Sadly for Mr. Delgado, the Court also ruled that he was not entitled to a dismissal, but a new trial. It may be expected that the prosecutor will have the appropriate chemist in court for the next trial.

Parrish Collins
Albuquerque Attorney
www.CollinsAttorneys.com

Two recent cases from New Mexico's Supreme Court apply the recent United States Supreme Court decision of Melendez-Diaz v. Massachusetts to DWI/DUI blood draws, and chemical testing in controlled substance cases.

The first case of State v. Bullcoming involved a felony aggravated DWI/DUI conviction. The State introduced a blood alcohol test (blood draw) that was taken from the defendant under a search warrant issued following his refusal of the breath alcohol test. The court made some interesting and somewhat contradictory findings regarding the admissibility of the report and the defendant's 6th Amendment right of confrontation of witnesses.

First, in light of the Melendez-Diaz decision, the Court reversed its prior position in State v. Dedman that had ruled that forensic tests were public records and therefore not subject to 6th Amendment confrontation protections set forth in the United States Supreme Court case of Crawford v. Washington. Dedman found that these reports were non-testimonial in nature since they were public records. Under Crawford, only testimonial evidence prepared in anticipation of trial is subject to 6th Amendment protection.

Melendez-Diaz ruled that these reports are "quite plainly affidavits" and that "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause and Crawford. To bring New Mexico law in line with the United States Supreme Court, the Court in Bullcoming ruled that these reports are testimonial, they do not fall within the business records exception to the hearsay rule, and therefore they are subject to cross examination.

Then remarkably, the Court found that the analyst preparing the report was a "mere scrivener" simply transcribing the results from the gas chromatograph. As such, the analyst/scrivener was unnecessary in court to meet the demands of Melendez-Diaz, Crawford and the 6th Amendment right to confrontation of witnesses. Instead, the Court allowed for the presence in court of any other qualified analyst to testify to the results of the testing analyst/scrivener.

It is unclear where this case will go from here. However, it seems that the second part of the ruling renders the first part impotent. The second part of the holding ignores much of the analysis in Melendez-Diaz which makes clear that these types of reports are prepared in anticipation of trial. The court in Melendez-Diaz addressed the pressures on analysts to provide results helpful to the prosecution. The court in Bullcoming ignores this possibility leaving the analyst/scrivener free of cross examination on possible errors in the testing instrument or processes, or even the outright fabrication of the results contemplated in Melendez-Diaz.

Bullcoming takes a step in the right direction. At least, blood draw results will no longer simply be admitted as gospel with no testimony from a representative from the state lab. However, the right to confrontation and cross examination has taken a blow when the testing analyst can escape cross examination on his or her experience, expertise, testing procedures, background, history, biases, and prior work product to name only a few possible sources impacting credibility.

www.CollinsAttorneys.com

The United States Supreme Court finds that the 6th Amendment right to confrontation requires that an analyst who tested drugs in the lab must testify in court to get those lab results entered into evidence. This important case will impact both drug cases and DWI/DUI cases in Albuquerque and throughout New Mexico.

The United States Supreme Court case of Melendez-Diaz v. Massachusetts involved the introduction of evidence by the prosecution of laboratory certificates from the state laboratory regarding cocaine connected to the defendant. The analyst that conducted the testing of the cocaine was not present at trial.

The defendant objected to the admission of the lab certificate without in-court testimony by the lab analyst. The defendant argued that the practice was a violation of the 6th Amendment confrontation clause as set forth in the 2004 Supreme Court case Crawford v. Washington.

The United States Supreme Court in Melendez-Diaz v. Massachusetts agreed that the practice of admitting lab certificates in lieu of or in the absence of foundational testimony was a violation of the confrontation clause as set forth in Crawford.

The court rejected the prosecution's arguments that these analyst were not accusatory witnesses. The court stated that there was no exemption from the confrontation clause for those witnesses testifying to facts other those observed at the crime scene. The court found any witness who offers his testimony is subject to the confrontation clause.

The court also refused the prosecution's argument that these certificates are excluded from the hearsay rules as official business record. Likewise, the Court refused the argument that these lab analysts are neutral and unbiased simply applying scientific methods to the substance in question. Finally, the court stated that it was immaterial that the defendant himself could have subpoenaed the analyst to court holding that it was the State's burden to bring their witnesses to court for foundational purposes.

The Melendez case could have significant impact on cases throughout the State of New Mexico. It appears that the ruling will cover the admission of lab results from New Mexico's scientific lab division in both drug cases and DWI/DUI cases. The cases are winding their way through the New Mexico courts now as the Courts here attempt to deal with the Melendez-Diaz rulings.

www.CollinsAttorneys.com

Once past the due process issues presented by the confidential informant's mental health and prescription drug issues, the Court in U.S. v. Robinson went on to address the confrontation issues under the 6th Amendment raised by the trial court's refusal to allow the defense attorney to cross examine the confidential informant at trial on those issues.

The 10th Circuit Court of Appeals found that the district court had indeed violated the Confrontation Clause under the 6th Amendment when it forbade the defense from cross-examining the CI on his mental health history and use of prescription medications. Further, the court found that the prosecutor had failed to meet the high burden of proving beyond a reasonable doubt that these constitutional errors were not harmless errors.

The Court stated that the 6th Amendment guarantees the right of a defendant to "be confronted with the witnesses against him." The primary right under the Confrontation Clause is the right to confront and cross examine the State's witnesses. And though the trial court may exercise its discretion through "reasonable limits" on the scope of questioning, cross examination is the primary means by which the credibility of witnesses is determined by the jury.

The Court found that the trial court had not violated the Confrontation Clause on the issue of illegal drug use since it allowed the defense to cross examine the confidential informant on these issue. However, the prohibition against cross examination of the confidential informant on his mental health issues and related prescription drug use violated the defendant's right to confrontation since the cross examination on the illegal drug use may have been much different with full access and knowledge to the informant's mental health records.

The Court stated, "Where the witness the accused seeks to cross-examine is the 'star' government witness, providing an essential link in the prosecution's case, the importance of full cross-examination to disclose possible bias is necessarily increased." The Court stated further that "a constitutional violation occurs when the defendant is prohibited from engaging in otherwise appropriate cross-examination that, as a result, precludes him from eliciting information from which jurors could draw vital inferences in his favor."

In short, the informant's credibility was essential to the government's case. The defendant had a right to put the informant's credibility before the jury and the jury's view of his credibility was critical to the outcome of the case for both sides. Preclusion of the defense's review and cross examination on issues of mental health and drug use was a fundamental violation of both due process and the right to confrontation of witnesses.

The 10th Circuit Court of Appeals addressed the issue of confidential informants in U.S. Robinson. The defendant was charged as being a felon in possession of a firearm after allegedly selling a gun to the confidential informant. The Court addressed the issues of due process and the right to confrontation of witnesses.

The confidential information had serious mental health issues including the use of several prescription drugs. The Court reviewed the medical file in camera but refused to allow defense counsel to access the records. The Court found that the Court's refusal to allow the defense attorney access to medical file was a violation of due process under the 5th Amendment.

The court determined that the Court's restrictions resulted in the jury seeing an incomplete and inaccurate picture of the confidential informant's credibility. From the perspective of the jury, the confidential informant had only "a little bit" of a drug problem. Moreover, the jury never heard of the repeated violations of the confidential informant's agreement with the ATF by using drugs. By the prosecutor's version
of events, the confidential informant had reformed since becoming an ATF informant. had largely reformed himself after becoming an ATF informant. Finally, the confidential informant had singifnicant memory issues related to the events which he attributed to a lapse of time. The jury was unable to judge his credibility independently based upon the mental health and drug issues.

The Due Process Clause of the Fifth Amendment provides that "[n]o person
shall . . . be deprived of life, liberty, or property, without due process of law. The 5th Amendment's primary protection is that of a fundamentally fair trial. This requires that all material evidence be admitted. This does not necessarily mean that
the withheld records would have resulted in acquittal. The Court stated instead, that
"the touchstone is simply whether the ultimate verdict is one 'worthy of
confidence."

Having addressed the due process issues under the 5th Amendment, the Court went on to address confrontation issues under the 6th Amendment.