Is that Crow dead?

Rachael Pickering won in State v. Laturner, No. 96,086 (Kan. App. July 27, 2007), reversing a Cherokee County possession conviction. The main issue had to do with a claim that K.S.A. 22-3437, allowing admission of lab test results without the chemist, is unconstitutional after Crawford. I had blogged about this issue here.

The KSC had held that the statute was constitutional in State v. Crow, 266 Kan. 690 (1999), largely using the rationale of Ohio v. Roberts. But, in Laturner, the COA noted that the KSC has also held that "'To the extent that the analysis in previous decisions of this court differs from the Controntation Clause analysis set forth in this opinion, these previous decisions are overuled.' Crow is, therefore, no longer good law."

The COA acknowledged that there is a wide split of authority among courts regarding whether lab reports are testimonial, but concluded that they are:

The lab report challenged by Laturner is testimonial. In identifying the category of witnesses whom a criminal defendant is entitled to confront, the Crawford Court defined a "witness" as "one who bears testimony" against an accused. It defined "testimony" as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." Testimonial statements are made by witnesses who bear testimony. "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." [Crawford v. Washington, 541 U.S. 36, 51 (2004)]. The Crawford Court identified three "formulations" of this core class of testimonial statements. These include the functional equivalent of ex parte in-court testimony, such as affidavits, and "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." 541 U.S. at 51-52. The forensic scientist who prepared Laturner's lab report was a witness; the statements in her lab report were testimony; and she knew when preparing her report that it would be used by the State at Laturner's trial to prove he committed the crime of possessing methamphetamine.

This is an important issue being litigated across the country. The SCOTUS is likely to take up a case from somewhere in the next term or two to resolve the split. Or that's what Professor Friedman contemplates here at the Confrontation Blog.

[Update: the state filed a PR on August 20, 2007].

[Further update: the KSC granted the PR on December 19, 2007].

[Further update: on October 9, 2009, the KSC held that K.S.A 22-3437 is unconstitutional if it includes any requirement that a defendant make any showing beyond a confrontation clause objection to compel confrontation. As applied to Mr. Laturner, the KSC reversed and remanded for new trial. Here is the post reporting the KSC decision.]