Don't let HEARSAY defeat 6th Amendment Confrontation Right

[Bob Hurt]

US Constitution 6th Amendment:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The 6th Amendment's  right to confront witnesses includes challenge of

• Hearsay through Ex Parte Testimony (without cross examination of witness)
  
• Hearsay through submission of a test report without testimony of person doing the test
  

Does this apply to allegations of the

• Existence of a law, including proper conditions surrounding the lawmaking process - quorum, constitutionality, constitutional authority, rules authority in the congress, witnesses to its creation and passing, actual legislative intent, influence of common law, whether statute removed any common law right without providing statutory substitute, etc.

Crawford v. Washington, 541 U.S. 36 (2004), is a United States Supreme Court decision that reformulated the standard for determining when the admission of hearsay statements in criminal cases is permitted under the Confrontation Clause of the Sixth Amendment. The Court held that cross-examination is required to admit prior testimonial statements of witnesses that have since become unavailable.

http://en.wikipedia.org/wiki/Crawford_v._Washington
http://www.law.cornell.edu/supct/html/02-9410.ZS.html
http://www.oyez.org/cases/2000-2009/2003/2003_02_9410

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), is a United States Supreme Court case in which the Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test.^[1] While the court ruled that the then-common practice^[2] of submitting these reports without testimony was unconstitutional, it also held that so called "notice-and-demand" statutes are constitutional. A state would not violate the Constitution through a "notice-and-demand" statute by both putting the defendant on notice that the prosecution would submit a chemical drug test report without the testimony of the scientist and also giving the defendant sufficient time to raise an objection.^[3]

http://www.law.cornell.edu/supct/html/07-591.ZS.html
http://en.wikipedia.org/wiki/Melendez-Diaz_v._Massachusetts
http://www.oyez.org/cases/2000-2009/2008/2008_07_591


HEARSAY:  CNR - Certificate of Non-Existence of a Record

Out-of-court testimonial statement is not a public record under FRE 803(8)(B), which "excludes . . . in criminal cases matters observed by police officers and other law enforcement personnel."

United States v. Rueda-Rivera, 396 F.3d 678 (2005):
The CNR was signed by Ruth E. Jones, who was identified as “the Chief in the Records Services Branch, Office of Records, Headquarters, of the Immigration and Naturalization Service, United States Department of Justice.” In the CNR, Jones declared that, pursuant to § 290(d) of the Immigration and Nationality Act and 8 C.F.R. § 1-3.7(d)(4), she was “authorized to certify the nonexistence in the records of the Service of an official file, document, or records pertaining to specified persons or subjects.” The CNR reflected that the INS maintains centralized records relating to immigrant aliens who entered the United States on or after June 30, 1924, and to nonimmigrant aliens who entered on or after June 30, 1948. Additionally, the INS maintains a centralized index of all persons naturalized on or after September 27, 1906. Jones further declared that, “after a diligent search no evidence [was] found to exist in the records of the Immigration and Naturalization Service of the granting of permission for admission into the United States after deportation or exclusion relating to File No. A-72 209 927, Oscar Rueda Rivera . . . .”
http://federalevidence.com/node/764
http://circuit5.blogspot.com/2009/07/melendez-diaz-illegal-reentry-and.html

Note the uphill battle.  Many other circuit rulings say CNRs are not testimonial , but ARE public records (in reality the Melendez-Diaz ruling says they are not).

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Bob Hurt P.O. Box 14712 Clearwater, FL 33766-4712 (727) 669-5511 Visit My Home Page  ·  Email Me  ·  Visit My Blog Learn to Litigate with Jurisdictionary (Buy Now) Stay informed with Lawmen E-letter (Subscribe Free Now) Donate to my Law Scholarship Fund.