Tuesday, October 17, 2006

Eating Crow?

This post on Professor Friedman's Confrontation Blog started me thinking about laboratory certificates under K.S.A. 22-3437. In 1999, the KSC rejected a Confrontation Clause challenge to this statute in State v. Crow. The KSC held that under Ohio v. Roberts, the procedure set up in K.S.A. 22-3437 advanced an important state interest and was sufficiently reliable to meet the requirements of the Confrontation Clause. The KSC did construe this statute as merely requiring defense counsel to show grounds for objection that "have an indicia of merit, [are not] imposed for the purpose of delay, and result in a valid issue being contested at trial."

This decision was pretty suspect even before Crawford and courts in other states refused to place any burden on the defendant other than timely request to provide the witness for cross-examination.

But now there is Crawford, which washes away the very rationale used by the Crow Court. If a lab certificate prepared specifically in lieu of testimony is testimonial (which doesn't seem like a big stretch), any substantive statutory limits on cross-examination must be unconstitutional. A defendant has a right to confront the witnesses--the Constitution provides that right and no further showing should be necessary. (By way of example, a defendant can plead not guilty and require the state to suffer the inconvenience of going through a jury trial. I cannot imagine the SCOTUS upholding a statute that said a defendant can only have a jury trial if he or she can make a showing that he or she has a defense that has an indicia or merit, is not for the purpose of delay, and will actually validly contest the prosecution's case).

I have seen one case where a defense attorney had not filed an objection to a lab certificate, but then made a Crawford objection during trial, and the district judge held that K.S.A. 22-3437 was unconstitutional under Crawford. That put the prosecutor in a pretty bad spot because he now did not have evidence to support the essential element of the crime and, in fact, the defendant was acquitted of the drug charge.

So be sure to raise Crawford at any trial where the state is attempting to circumvent the Confrontation Clause using K.S.A. 22-3437.

Just my $.02.

1 comment:

Jay Norton, Attorney at Law said...

I have a great brief on this with respect to the attempt by prosecutors to introduce blood test results in DUI cases this way. I lifted it from Doug Wells, and the amicus brief for cert to the US Supreme Court the National College for DUI Defense did for an Indiana case (cert was denied), plus I put a couple of dashes of Jay Norton on it. So, holler if you want to take a look at it. There is no way a blood test, used to provide the sole basis of a conviction in a DUI case, could be considered "Non-testimonial".