Confrontation Clause Update

June 2014

At its May 22nd conference, the Supreme Court denied certiorari in twelve of the fifteen petitions–some held since the beginning of the term–that asked the Court to resolve the conflict in lower courts over when a forensic science report is testimonial for Confrontation Clause purposes. The twelve petitions included Confrontation Clause challenges to autopsy and toxicology reports, drug reports, breathalyzer results, and DNA reports.  Derr II and Cooper were not among the twelve petitions denied, and are scheduled for the June 5th conference. Because all of the petitions raise a similar question, the package of denials sends a clear signal that the Court will also deny certiorari in Derr II and Cooper, unless Maryland’s broad exemption from the Confrontation Clause for forensic science reports is sufficiently dissimilar from the tests applied by other state courts of last resort or federal appellate courts.  Beyond Derr II and Cooper there is one remaining petition, Agers v. California, #13-1102, set for conference later in June. Agers is an autopsy case where the trial court permitted a surrogate pathologist to testify about the contents of an autopsy report he did not perform.

Could Derr II, Cooper, and Agers, be sufficiently dissimilar to the twelve petitions denied to warrant different treatment? It is noteworthy that the Court requested responses in Cooper and Agers within weeks of denying the group of petitions on May 22. Perhaps – although unlikely – that signals a different assessment by (at least one of) the Justices regarding Derr IICooper, and Agers.

Arguably, Derr II and Cooper place Maryland at one extreme and Agers places California at the opposite extreme of the post-Williams continuum of testimonial definitions. Maryland is the most simplistic, but rigid test that widely excludes uncertified or unsworn forensic reports from the reach of the CC. California is the most complex text that incorporates all of the different views in Williams into a multi-part test.  Perhaps clarification at the extreme would provide guidance to the middle, where most courts are applying one of the following tests: (i) the “primary purpose to use as evidence in a criminal trial” test that rejects the splintered views in Williams and looks to pre-Williams decisions; or (ii) a “primary purpose to accuse a targeted person” test that looks to the dissenting views in pre-Williams cases; or (iii) a test that permits experts to testify based on statements by others that the expert “independently” evaluates.

The likely outcome is that the Court will not resolve this conflict now. That doesn’t mean the current test in Maryland will last. It is unworkable because it is both too broad and too narrow. Too narrow because it excludes from the CC all signed but unsworn forensic reports. Too broad because autopsy, toxicology, and drug tests (traditionally sworn or certified reports under state law) are now testimonial. The formality test may even reach statements to non-state actors that are sworn or certified but not traditionally thought of as testimonial under the “primary purpose” test; for example, certified medical records.

Because the definition of a “testimonial statement” will continue to evolve, broadly preserve CC objections at trial under the federal and state constitution.

Contact RaquinMercer to consult with Steve Mercer about raising and preserving confrontation objections in the particular circumstances of the DNA/forensic science evidence in your trial.