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.
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
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
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
Typically, cross-examining a cooperator regarding the impact of the Sentencing Guidelines (e.g., its reduction of, say, a five-year exposure on each mail fraud charge in an Information to nothing more than 12-18 months in the aggregate even before a downward reduction) or the intricacies of a 5K1.1 variance motion can be dicey under the best… Continue Reading
In a decision issued on April 29th, the Supreme Court — in a decision which thematically follows from the previous post regarding the breadth of the "impeachment by contradiction" doctrine — has reaffirmed the principle that a defendant may be impeached with a statement obtained from him in violation of the Sixth Amendment. Kansas v.… Continue Reading