Bowman robbed Victor Hugo Lopez Munoz (Hereinafter referred to as “Munoz”).  Bowman got away until Munoz recognized Bowman at the trolley-stop for his adult school; after he called 911 on his cell phone, both he and Munoz, coincidentally, walked into the same school together.  Apparently, Bowman would raise his hand too often, and that got on Munoz’ nerves (that probably isn’t true).

A police detective advised Bowman of his Miranda rights.  Remember Miranda?  Not the ex-girlfriend.  In the landmark case, Miranda v. Arizona (1966) 384 U.S. 436, the US Supreme Court held that any statements made in the course of an interrogation while in physical custody may only be admissible if a defendant is first advised of his or her right to remain silent, the right to consult with an attorney before and during questioning, and the right to not incriminate him or herself.

But Justice Warren said the advisement better than I can, which is now part of pop culture and close to what we hear in nearly every cop drama on television…“Prior to any questioning, the person MUST be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  Id. at 444.

Also, an individual may give up these rights provided their waiver is “made voluntarily, knowingly and intelligently.”  Id.

However, even after a defendant waives his or her Miranda rights, if they “indicat[e] in any manner and at any stage of the process that he [or she] wishes to consult with an attorney before speaking there can be no questioning.  Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.  The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.”  Id. at 444-445.

Regrettably, the vast majority of arrestees waive their right to remain silent, and decide not to speak with an attorney in favor of making incriminating statements to the cops.  The police, the sheriffs, the Feds, they’re not there to help you, despite their promises of leniency, cigarettes and food from the best burger joint in town – they’re goal is to build a case against you, a case that a prosecutor can easily obtain a conviction from.  If you’re afraid of probation, a rehabilitation center, jail or prison, and you’re being interrogated (that is, you do not feel free to leave and walk away), then tell the law enforcement officer(s) you (1) want to speak with an attorney, and (2) that you will be silent and say nothing.

In our case, Bowman was advised of his Miranda rights.  And when he answered the kindly detective’s questions (Meaning, he WAIVED his Miranda rights.  Huge mistake, BTW), he chose to answer only some of the questions, but not all.

Here’s a cut and pasted version of the Bowman trial transcript:

As part of the prosecutor’s examination of the detective who arrested and interviewed Bowman, the prosecutor asked about three instances in which Bowman did not answer the detective’s interview questions. First, the prosecutor queried:

“[Prosecutor]: Did you tell [Bowman] it was suspicious he told you he had never been to [the area where the robbery occurred]?

“[Detective]: Yes, that was one of the questions I confronted him with because I thought it was suspicious he told me he had never been there and I find a document and now he is telling me he lived there also.

“[Prosecutor]: What was his response to your comment?

“[Detective]: Actually, there was really no comment. He couldn’t give me an explanation.

“[Prosecutor]: Well, … I want to get an impression from you of his response. Was his response silence or was his response, ‘I have no comment,’ or ‘I have no explanation?’ There is a difference.

“[Detective]: Actually, he just looked at me and he said nothing. Just looked at me. Didn’t respond to my question.”

A short while later, the prosecutor queried:

“[Prosecutor]: Did you ask or confront [Bowman] with the fact that the victim had also identified his cell phone?

“[Detective]: Yes.

“[Prosecutor]: What was [Bowman's] response?

“[Detective]: Again, … I said, ‘Why would the victim identify your cell phone [as the] cell phone he saw during the robbery?’ And again he just looked at me and didn’t say anything.

“[Prosecutor]: And did you ask him ‘Why would the victim identify you?’

“[Detective]: Yes.

“[Prosecutor]: What was his response?

“[Detective]: No response.”

Clearly, things didn’t go well for Bowman in court.  The above exchange was heard by a jury and aided in his conviction.

Accordingly, Bowman’s case is considered to be an exception to the ruled carved out in the US Supreme Court decision, Doyle v. Ohio (1976) 426 U.S. 610.  There, two defendants were advised of their Miranda rights, remained silent in the face of police interrogation, and the prosecutor asked at their jury trial why, if they were innocent, they did not state that to the police after they were arrested.  Id. at 612-614.  The High Court logically stated that the prosecutor’s impeachment – shown above (and read the case if you have nothing better to do) – is a violation of due process because the Miranda advisement they received conveyed a right to remain silent, which implies there is no penalty for exercising that right.  Id. at 618.  In other words, post arrest/Miranda silence CANNOT be used against a defendant.  We know this now as the Doyle Rule.

That being said, the Doyle Rule has been held to be inapplicable to pre-arrest silence.  Brecht v. Abrahamson (1993) 507 U.S. 619, 628.  That mean, if you aren’t under arrest, and you equivocate, are silent, or say something that just doesn’t make any sense at all in the attempt to clear your name (Your name is Mudd), whatever you say or didn’t say will be used against you in a court of law.

Unfortunately, sometimes when you believe you are under arrest (that is, you have that overwhelming feeling you are not free to terminate your encounter with the friendly peace officer), you really aren’t under arrest even though the rest of the world would feel as you do.  This gets confusing at the beginning stages of DUI traffic stops, where the officer asks how much you’ve had to drink, whether you can feel the effects of alcohol, where you’re coming from and going to, etc.  These are generally considered brief investigative detentions, and not arrests, at least prior to your being gently escorted from your vehicle.  Accordingly, the officer, wearing his Sam Brown belt, and standing outside your driver’s side window with his flashlight in your face is not considered to have “arrested” you even though you know you can’t just put your foot to the gas pedal and drive away without some kind of consequence (getting chased or shot at).  That means, your silence/equivocations at the getting-to-know one another phase of your traffic stop can be used against you at your up-and-coming DUI court or jury trial, or in any other case in which you are deemed only having been briefly detained, and not arrested.  Of course, any direct admissions you make to alcohol, drug use or any other criminal conduct will likewise be used against you.

Separating investigative detentions from arrests can defy common sense at times, and there’s too much to say about it for purposes of this blog.  That said, the Doyle Rule also does not prohibit “post-arrest silence if the defendant [has not yet] receive[d] Miranda warnings.  Abrahamson at 628.  That is because you have not had the chance to rely on your right to remain silent, because the officer hasn’t told you that you have this right.  Id.  So please everyone, no spontaneous utterances, exclamations or deep thoughts after you are arrested and before they read you your rights.  Just don’t say anything at all.  Although easy to remember, almost no one seems to be bothered by this.

In our case, the appellate court has carved out yet another exception to the Doyle Rule.  The trial court admitted Bowman’s failure to respond to the detective’s query on the theory that they are ADOPTIVE ADMISSIONS.  Here’s the rule: whenever a person is being accused of a crime (they are under arrest), and they are given an opportunity to explain themselves and they do not and/or are evasive, hesitant or equivocating in their explanation/response, and the 5^th Amendment (the right not to incriminate ourselves) is not being relied on, that is, they have waived their right to speak to an attorney and/or remain silent (Bowman blew it), whatever they say or don’t say or equivocate about is treated as an admission of guilt against them.  People v. Jenings (2010) 50 Cal. 5^th 616, 661.

In plain English: Don’t waive your rights, speak, and then be silent (in this order), and expect your silence not to be used against you.  Your silence now counts nearly as much (practically speaking) as verbally admitting to the crime itself.  The judge will hear of it, and so will a jury – like what happened with Bowman.

This seems a bit unfair, especially considering the fact that the officer has just advised you of your right to remain silent, and you may – for the sake of argument – be relying on that absolute right despite your earlier waiver.  This case may be taken up by the California Supreme Court.

We should pity Bowman.  Actually, it would seem that there was ample evidence against him to convict without the adoptive admissions, but they sure didn’t help.

[Please note that Miranda has taken a dramatic turn for the worse.  Just read Berguhis v. Thomkins (2010) 130 S. CT. 2250 for proof of that fact.  Silence alone does not mean that you are exercising your right to remain silent.  You must make your desire to remain silent unambiguously known.  Mr. Thomkins decision to say nothing for 2 hours and 45 minutes was deemed not unambiguous.]

Vincent Julian Valdez, Jr., was convicted of attempted murder, four counts of assault with a firearm, two counts of street terrorism from two drive-by shootings, and the jury found these offenses were committed for the benefit of a street gang, in addition to other enhancement findings.

To prove up the gang allegations in this case, the prosecution used printouts from Valdez’ MySpace account which included photographs of Valdez, a photo of Valdez making a gang signal, his gang moniker (“Yums”), and handwritten gang related notations.

The court admitted the MySpace printouts – not for the truth of the matter asserted – but for the following non-hearsay purposes: “corroborating a victim’s statement to investigators shortly after the first shooting that the victim recognized Valdez from the MySpace site and (2) as foundation for [the gang] expert[‘s] testimony.  [The expert witness] relied on the MySpace page and other evidence as a basis for his opinion Valdez was an active T.L.F. gang member.”

Valdez challenged the authenticity of the evidence because the prosecution failed to show that the MySpace page necessarily belonged to Valdez, and there was no evidence that photographs and other content on the page were not falsified.

The court, however, states “while all writings must be authenticated before they are received into evidence (§1401),” the burden to authenticate “is satisfied [once] sufficient evidence has been produced to sustain a finding that the document is what it purports to be. [Citation]” Jazaveri v. Mao (2009) 174 Cal. App. 4^th 301, 321.  More importantly, the court held that neither Valdez, nor the author of any other material, must personally testify to authenticate a document.  Authenticity may be shown by: “other means (§1410) [[i.e., there is] no restriction on the “means by which a writing may be authenticated”]).

In this particular case, the court found there to be sufficient evidence of authentication due to the “consistent, mutually-reinforcing content on the [MySpace] page [which] helped authenticate the photograph and writings, with no evidence of incongruous elements to suggest planted or false material.”

Predictably, Valdez relies on People v. Beckley (2010) 185 Cal. App. 4^th 509, where the court found insufficient evidence to authenticate a photograph of defendant flashing gang signs on his girlfriend’s MySpace page.  This court finds Beckley to be inapposite, however; explaining the obvious password requirement for posting and deleting content on Valdez’ purported MySpace page; and the “pervasive consistency of the content of the page, filled with personal photographs, communications, and other details tending together to identify and show owner-management of a page devoted to gang-related interests.”  Of course, the Beckley court also stated it held “no illusions that hackers can adulterate the content of any web-site from any location at any time.”  Oh, well.

After reading this decision, it would appear that if there is consistent, mutually reinforcing content on a social networking page, these webpages may be used against our clients in criminal cases – without requiring their testimony or that of a custodian of records working for MySpace, facebook, Linkedin, Twitter, or any other social networking website.  That being said, this opinion will be invaluable when we need it.

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Please refer to this article that was just published in the L.A. Times re a holiday crackdown on drunk driving in Los Angeles County from now until New Years Day.  Also, if you wish to view an important source of information on regional and countywide press releases for roving patrols and DUI checkpoints, go to California AVOID – a California Office of Traffic Safety website – it is simply the most comprehensive site I have seen on the subject.

I have cut and pasted most of the L.A. Times article below.  Please do not assume that the locations for the patrols and checkpoints are necessarily complete and accurate.  What I would do is check daily for press releases published in local publications, and city and county websites.  [Please note that one of the requirements in the seminal legal opinion Ingersoll v. Palmer is the that there be "advanced publicity" prior to any DUI checkpoint.]

STRAIGHT FROM THE TIMES:

Sunday, Dec. 18
DUI patrol – LAPD Harbor Area

Tuesday, Dec. 20
DUI patrol – El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo Beach and Torrance

Wednesday, Dec. 21
DUI patrol – El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo and Torrance

Thursday, Dec. 22
DUI checkpoint – Gardena
DUI checkpoint – LAPD North Hollywood area
DUI checkpoint – CHP, location not released
DUI patrol – El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo and Torrance

Friday, Dec. 23
DUI checkpoint – Lynwood
DUI checkpoint – LAPD, various locations in Los Angeles
DUI patrol –El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo Beach and Torrance

Thursday, Dec. 29
DUI checkpoint – Compton, 6 p.m. to 2 a.m.
DUI patrol – El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo Beach and Torrance
DUI patrol – LAPD Olympic area

Friday, Dec. 30
DUI checkpoint – Azusa
DUI checkpoint – Redondo Beach
DUI checkpoint – LAPD Central Area
DUI checkpoint – LAPD Pacific Area
DUI checkpoint – Torrance
DUI patrol – El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo Beach and Torrance
DUI patrol – Cerritos, 8 p.m. to 4 a.m.
DUI patrol – Norwalk, 8 p.m. to 4 a.m.
DUI patrol – CHP Antelope Valley
DUI patrol – CHP Newhall

Saturday, Dec. 31
DUI checkpoint – Monterey Park, Alhambra, San Gabriel, Montebello and Bell Gardens
DUI checkpoint – LAPD, location not released
DUI patrol – Glendora, Pomona, Claremont, La Verne, Covina, Azusa, Irwindale, Glendale, South Pasadena, Pasadena, Burbank, San Marino, San Fernando, El Segundo, Gardena, Hawthorne, Hermosa Beach, Inglewood, Manhattan Beach, Palos Verdes Estates, Redondo Beach and Torrance, Baldwin Park, West Covina, Baldwin Park School Police, El Monte, Monrovia, Arcadia and Sierra Madre, Antelope Valley, CHP Newhall, Bellflower, Compton

Sunday, Jan. 1, 2012
DUI patrol – LAPD in Mission Area
DUI patrol – Carson, 8 p.m. to 4 a.m.
DUI patrol – Industry, 8 p.m. to 4 a.m.

It was a propitious moment for the FedEx employee who smelled Marijuana coming from a package to be shipped from Santa Maria to Illinois, until that package was seized by the authorities.   Officers at the police station -undoubtedly – confirmed its odor.   Wanting to get to the green leafy substance as soon as possible, the idea of a search warrant went up in a haze.   Why bother with the probable cause declaration and getting a magistrate to sign-off on a search warrant, when two officers can simultaneously open the package and find the 15 ounces of Marijuana?

Ultimately, Robey (who surprisingly used a false name with the shipper) got charged with Possession of Marijuana for Sale (§11359) and Transportation of Marijuana (§11360(a)).  He appears to have lost his §1538.5 Motion to Suppress Evidence partly on the basis of “plain smell,” an eagerly anticipated exception that isn’t yet a California exception to the warrant requirement.   A petition for a Writ of Mandate was therefore filed.

Regarding warrants, the following should be clear: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Amendment IV of the United States Constitution.

In this opinion, there are discussions regarding various carved out exceptions to the requirement that there can be no search and seizure absent a warrant, i.e., exigent circumstances, the automobile exception, inevitable discovery, etc., and the court concludes they are not applicable here.

For instance, “even when an officer lawfully seizes a package, the Fourth Amendment requires that in the absence of exigent circumstances, the officer obtain a warrant before examining the contents of the package.”  People v. Pereira (2007) 150 Cal. App. 4^th1106, 1112.  In our case, there is absolutely no exigency or emergency associated with a package – which may (and did) contain Marijuana – sitting patiently at a police station.

More importantly, this court refuses to add ‘plain smell’ to the Fourth Amendment exceptions list.  After discussing several important appellate decisions, the court decides that California precedent rejects the notion that odor alone will justify a warrantless search.  ‘Plain View,’ however, which is an actual exception to the warrant requirement, will continue to own the score board.  “To smell it is not the same as to see it.”

Accordingly, since there wasn’t any other evidence to go with the odor of Marijuana other than it emanating from a FedEx package (i.e., Marijuana + 1 guest), the officers in this case were duty bound to get a warrant, which they failed to do.   The court therefore suppresses the Marijuana, and we should assume Robey – or at least his attorney – is celebrating somewhere.

This case should, in theory, result in fewer state based (California) Marijuana prosecutions.  It should be emphasized, however, that if the smell of marijuana was instead emanating from a package inside a vehicle (remember the automobile exception to the warrant requirement?), the opinion might read differently.

Article written by Adam Sostrin, a Criminal Defense Attorney in Los Angeles

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In People v. Jackson (2010), 189 Cal. App. 4^th 1461, Jackson was arrested on September 16, after driving very badly on the Bay Bridge in San Francisco.  At the very last, Jackson had a beautiful view of the city – if it wasn’t too foggy.

After a poor performance in the field sobriety component of the evening – sometime after 4:00am – the officer advised Jackson that he wanted him to blow into a hand held breath testing device, i.e., the preliminary alcohol screening device (“PAS”), and also said that Jackson had the right to refuse testing.  Jackson refused to blow into the testing instrument.  Jackson was then arrested on suspicion of driving under the influence of alcohol or drugs, and driving with a .08% or greater blood alcohol level (California Vehicle Code §’s 23152(a) and (b), respectively).

Jackson was taken to the station where he agreed to submit to a breath test, and submitted two samples of .10% blood alcohol concentrations approximately thirty minutes after the traffic stop.  After being official charged for DUI, Jackson took his case to trial where a jury of his peers (hopefully) found him guilty of § 23152(a) and (b).

The evidence against him was great, and it was not helpful for the highway patrol officer to testify – in front of a jury – that Jackson refused to submit to the PAS test.  Fortunately, the appellate court has a problem with that kind of testimony, although they’re only bothered enough to call it harmless error.

Under California Vehicle Code § 23612, a PAS machine is a “field sobriety test and may be used by an officer as a further investigative tool.”  When a law enforcement officer decides to employ the test, he or she must make a request that it be given to assist the officer in making a determination if the subject is “under the influence of alcohol or drugs,” or a combination thereof.  The officer then states whether or not the individual gives consent to the PAS test, they’re requirement to submit to an official breath or blood examination is not satisfied.  Finally, the officer must advise the person of their right to refuse to the test altogether.  § 23612 (h) & (i).

Here, the court finds that since § 23612 gives the subject an absolute right to refuse the test, it would make no sense whatsoever “to allow the prosecution to admit…evidence of that refusal to establish consciousness of guilt.”  In other words, if exercising your rights under the statute means you are to be punished later on for doing so, exactly what right is the statute conferring on you anyway – other than sheer humiliation and having a jury not give you a fair shot?

The respondent, however, argued that our case is like Marvin v. Department of Motor Vehicles (1984) 161 Cal. App. 3d 717, 719-720, where the court held that a driver’s refusal to submit to field sobriety tests can be used as evidence against them to show ‘consciousness of guilt.’  In that case, the driver refused to get exit her vehicle or take any field sobriety test after doing “donuts” on the street.  That case, however, did not specifically address a refusal to take the PAS test, where there is an express statutory right of refusal.  Marvin is inapposite.

Accordingly, while your client may refuse the PAS (he or she might be better off) and not be punished for doing so, the prosecution can comment on one’s refusal to take any of the other field sobriety tests.

If you have any questions, please contact Sostrin Law Offices.

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Petrus v. Dept. of Motor Vehicles (2011) 194 Cal. App. 4^th 1140:

Petrus drives his car into a parking lot and fittingly hits a parked car while an off-duty California Highway Patrol Officer (“Mora”) is standing nearby.  Petrus exhibits symptoms of being under the influence of an alcoholic beverage, and Mora makes a citizen’s arrest.  A deputy sheriff arrives, and Petrus consents to and gives a blood sample.

Petrus retains an attorney (one should never represent themselves in a DUI matter – which is painfully self-serving, but true), and at some point an Administrative Hearing is requested.  Despite the attorney’s discovery request approximately thirty days prior to the DMV hearing, Petrus’ blood alcohol results – indicating a .18% blood alcohol concentration – are received by his attorney only minutes before the hour set with the hearing officer.

Counsel did not immediately seek a continuance despite the late discovery, however, and stated that he was ready to proceed.  Soon after (as if it were all part of some plan), counsel’s – trump card – objection to the blood alcohol exhibits coming into evidence on late discovery grounds was overruled, and his follow-up request for a continuance was denied.

Needless to say, Petrus lost the Administrate Hearing, a license suspension was imposed, and a writ of mandate was properly filed.  At a DMV hearing, the government has the initial burden to show that the individual facing the license suspicion was driving, arrested, and had a .08% or greater blood alcohol concentration while driving.  Brown v. Valverde (2010) 183 Cal. App. 4^th 1531, 1536, 1537-1538.  Provided the DMV makes the threshold showing, and the arrestee does not successfully shift the burden back to the DMV, a license suspension is imposed.

That being said, “Due Process requires full and fair administrative hearings that provide drivers a “ ‘meaningful opportunity to present their case.’ “  Mohilef v. Janovici (1996) 51 Cal. App. 4^th 267, 289.  And what could be more important than a rigorous examination of Petrus’ blood alcohol results prior to the hearing date?  Accordingly, since counsel’s receiving the results only minutes before the hearing did not allow for a meaningful opportunity to challenge the DMV’s case, the court held that Petrus’ Due Process rights were violated, and a continuance should have been granted.

Also, California Vehicle Code Section 14112 and Government Code Sections 11507.5-11507.6 are the statutes used for obtaining discovery at administrative hearings.  Valverde at 183.  Government Code 11507.6 states that discovery is to be received within thirty days, prior the hearing.  Elevating substance over form, the court holds that receiving discovery only minutes before go-time does not qualify as “prior to the hearing.”

It is fair to say that many defense attorneys have had painful experiences dealing with assigned officers at Administrative Hearings.  This case is our weapon.  We must make detailed discovery requests ahead of these hearings, and request continuances at the time and date set for them whenever the DMV’s failure to comply with a discovery request denies our clients a meaningful opportunity to challenge these license suspension actions against them.

If you have any questions, please contact Sostrin Law Offices.

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In People v. Sydney Davis (2011), C061536, Super. Ct. No. 08F06253, Davis was found guilty of assault with a deadly weapon (Cal. PC. 245(a)(1)) and mayhem (Cal. PC. 203).  While vacationing at a correctional center, Davis shoved a “commercial grade” toilet brush into Jonathan Coleman’s eye socket.

At the trial, the prosecution called a physician (two years into his residency) to testify as to an operative report made by an ophthalmologist, and a CT scan report presumably prepared by a radiologist.

Needless to say, the testimony was bad for Mr. Davis, e.g., the young doctor actually testified that “the inside of [Coleman’s] [eyeball] is coming outside,” etc.

On appeal, Davis argued that medical reports should not have come-in through the testimony of the resident because they were testimonial in nature, and violated his 6^th Amendment right to confront and cross examine the witnesses against him.

Here, the court states that Melendez-Diaz v. Massachusetts (2009) 174 L. Ed 2d 314 is of no help at all to Davis, despite Davis’ citing it in the appeal — we are told that the statements in the medical reports are in fact non-testimonial, and that there is language in Melendez-Diaz to support this holding.

Going back to our Indian summer in Crawford v. Washington (2004), 158 L.Ed.2d 177, 197, 199, 203, we learned that testimonial statements cannot be admitted into evidence unless the declarant is unavailable for testimony and there is a prior opportunity for cross-examination.  As for the definition of testimonial, “it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.  Id. at 203.  Crawford also expressly includes “affidavits” as being testimonial, in that they are the “functional equivalent” of “ex parte in-court testimony.”  Id. at 193.

In Melendez-Diaz, defendant was charged with cocaine related offenses.  State drug analysts (at the behest of the prosecution) analyzed a white powdery substance found on defendant when he was arrested, and concluded in affidavits that the white powder was cocaine.  The affidavits were admitted without the analysts’ testimony.  Id. at 320-321.  The High Court held the affidavits to be testimonial: the “Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits…”  Id. at 332.  Clearly, the Court was guided by Crawford in its analysis, and took issue with anything that is a functional equivalent of in-court testimony.

The medical reports in this case were not affidavits, however.  They were not “sworn,” or “signed under penalty of perjury,” and “lack[ed] the solemnity or formality associated with the affidavits utilized in Melendez-Diaz.”  In fact, Melendez-Diaz says “medical reports created for treatment purposes” are not testimonial.  Melendez-Diaz at 332.  Further, they can be admitted under the federal business records exception to the hearsay rule, which is more or less what occurred in Davis’ jury trial before he was found guilty.

That said, this court also looks to the Davis v. Washington (2006) 547 U.S. 813 and Michigan v. Bryant (2011) 179 L. Ed. 2d 93 decisions for guidance on making a determination whether the medical reports in this case are testimonial. Although in Davis the Court decided that statements made to law enforcement to meet an ongoing emergency are non-testimonial, in Bryant, the High Court states that “there may be other circumstances [other than meeting an ongoing emergency] …when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony….”  Id. at 107-108.  We can rest assured that those other circumstances include independent minded doctors preparing medical reports.

The court next analyzes Bullcoming v. New Mexico (2011) 180 L. Ed. 2d 610.  In that case, an analyst (for the state) signs-off on a laboratory report that defendant had an elevated blood alcohol level.  The same report was used against defendant at trial, but its contents were testified to by another analyst who was merely familiar with testing procedures at that particular laboratory, although he did not personally test defendant’s blood sample.  Id. at 616, 618.  There, the Supreme Court concluded that the certified report was testimonial, and the testimony used against defendant at trial violated his Sixth Amendment right to confront the original analyst.  Id. at 626-627.  As in Melendez-Diaz, the “certificates of analysis” were “incontrovertibly…affirmations made for the purpose of establishing or proving some fact in a criminal proceeding,” and therefore testimonial.  Id. at 623.

In other words, while the certification in Melendez-Diaz was designed as an out-of-court substitute by the prosecution for testimony against defendant (Bullcoming was no different), here the medical reports are designed for no other purpose than noting the medical condition of the bludgeoned victim with the eye injury; accordingly, the substitute testimony against Davis was non-testimonial in nature, and there is no Confrontation Clause problem.

Anything that smacks of a ‘functional equivalent’ of testimony used to prove a fact at trial is testimonial, and we must keep that in mind whenever surrogate testimony becomes an issue.  Especially when the source of the testimony is a government analyst.