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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Tag Archives: Confrontation Clause

Pharmacy Drug-Purchase Logs Admissible Through Police Officer Without Violating Confrontation Clause Because They Are Non-Testimonial Business Records

Posted in Constitutional law

Even though pharmacies kept logs identifying purchases of pseudoephedrine — widely used in illegal methamphetamine production — solely to comply with federal law mandating the recordation of the infomation for law enforcement purposes, those logs were held by the Fifth Circuit to be genuine business records, and so admissible at the instigation of the government without observance of Confrontation Clause safeguards.

Ninth Circuit Holds That Foreign Records Certificate Of Authentication May Be Admitted Without Violating Confrontation Clause

Posted in Constitutional law

In United States v. Anekwu, the Ninth Circuit, in a case of first impression, holds that certificates of authentication of foreign public and business records are not testimonial in nature and therefore may be admitted into evidence by means of an affidavit, and without in-person witness testimony, without violating a defendant’s rights under the U.S. Constitution’s Sixth Amendment Confrontation Clause.

Murder Victim’s Earlier Out Of Court Statement To Social Worker About Abuse At Hands Of Defendant Was Admitted Without Violating Confrontation Clause Because It Was “Non-Testimonial”

Posted in Constitutional law

A victim’s out-of-court statement is admissible as “non-testimonial” for Confrontation Clause purposes, even though it was not made hurriedly in the midst of an on-going emergency, because it was made to a civilian social worker focused on treating a child’s abuse, not in procuring evidence to prosecute the abuser.

Testimonial Business Records — Yet Another Category For Confrontation Clause Analysis?

Posted in Constitutional law

Ninth Circuit holds that government records of benefits eligibility were admissible without cross-examination under the Confrontation Clause because they were routine and “nontestimonial,” even though the records contained perjury warnings suggesting that they were intended at least in part to serve as trial evidence in any future fraud prosecution.

Supreme Court’s Shifting Confrontation Clause Analysis

Posted in Constitutional law

In a new article published in the BNA Criminal Law Reporter, the author suggests that the Supreme Court’s Confrontation Clause analysis may be reverting to an approach, seemingly abandoned several years ago, which closely aligns the Sixth Amendment’s limitations on admissible evidence with the standards employed in traditional hearsay exceptions. (Alain Leibman, Esq., the author of this entry… Continue Reading

Concurring Opinion In Bullcoming Shows Ways Around Rigid Confrontation Clause Analysis

Posted in Constitutional law

The real action in June’s Supreme Court decision reaffirming the Confrontation Clause obligation of the government to offer lab reports only through the technician who conducted the test was in the concurrence; there, Justice Sotomayor sketched out several alternative pathways for a prosecutor lacking the necessary witness to still introduce the damning test results.

Confrontation Clause Chaos — Admission Of Drug Ledgers Violates Clause Because They Did Not Qualify As Business Records Of The Drug Organization And Were Therefore “Testimonial” In Nature

Posted in Constitutional law

The Supreme Court’s Confrontation Clause jurisprudence has both raised the bar substantially for the government in its efforts to introduce out-of-court statements and records and precipitated general confusion in the lower courts as they seek to apply those teachings to different fact patterns. Hearsay exceptions long believed to be co-terminous with the Confrontation Clause and safe harbors for prosecutors no longer assure admission of evidence. A recent Fifth Circuit case demonstrates just how unsettled are the expectations of prosecutors used to offering evidence in old ways which are no longer permissible under new constitutional constructs.

Rule of Completeness is Broader than FRE 106

Posted in Evidence

A useful lesson drawn from a recent Tenth Circuit case: don’t hesitate to use the common law “rule of completeness” in an effort to admit verbal statements, such as those memorialized in transcripts of plea allocutions or grand jury testimony, when no hearsay exception presents itself. United States v. Lopez-Medina, 2010 WL 56944 (10th Cir.,… Continue Reading

Confrontation Clause in the lower courts — inconsistency is the only constant

Posted in Constitutional law

As reported here recently, the lower courts continue to struggle to apply the new, restrictive Confrontation Clause jurisprudence of the Supreme Court’s decision last year in Melendez-Diaz to various kinds of certifications and reports which previously were regularly admitted at trial.  Subject now to a searching Sixth Amendment analysis which bars admission of hearsay statements when… Continue Reading

Seventh Circuit Does End-Run Around Sixth Amendment to Admit Drug Testing Evidence

Posted in Constitutional law

Last year the Supreme Court emphatically extended its new Confrontation Clause jurisprudence — abjuring reliance on historically-rooted hearsay exceptions to require in criminal cases that  "testimonial" hearsay be kept out unless subject to cross-examination — to in-court evidence from drug-testing labs.  Under the Melendez-Diaz case, the prosecution can no longer admit lab reports but must present live… Continue Reading

Crawford requires that co-conspirator statements to informants be tossed

Posted in Constitutional law

Since the seismic shift in Confrontation Clause jurisprudence effected by Crawford v. Washington, 541 U.S. 36 (2004), lower courts have struggled to define precisely which "testimonial statements" are now excluded from evidence unless the government can show both that the declarant is unavailable to testify at trial and there was a prior opportunity for cross-examination… Continue Reading

Admission by government of absence-of-record certificates now unconstitutional

Posted in Constitutional law, Tax prosecutions

The Supreme Court last week applied a newly-invigorated Confrontation Clause to deny the admission at trial of drug lab test certificates in an opinion which may unintentionally prove very useful to attorneys defending criminal tax cases. In Melendez-Diaz v. Massachusetts, 2009 U.S. LEXIS 4734 (June, 25, 2009), the Court unremarkably extended the reach of Crawford… Continue Reading

New Jersey’s Supreme Court Explores Parameters of Crawford

Posted in Evidence

In three recent decisions, the New Jersey Supreme Court considered and applied the parameters of the United States Supreme Court case of Crawford v. Washington, 541 U.S. 36 (2004) to similar, but distinct questions of evidence admissibility.  In Crawford, the Court held that under the Confrontation Clause of the Sixth Amendment, “[t]estimonial statements of witnesses… Continue Reading