Hearsay Not Admissible
at Trial in Municipal Court based on
Crawford Decision
Prior to 2004, in Municipal Court and criminal
cases, statements and documents could often be introduced into evidence over
defense counsel’s objection. In the landmark decision of Crawford v. Washington. 541
U.S. 36 (2004) the United States Supreme Court ruled that testimonial hearsay
may not be admitted against a defendant at trial unless the declarant is
unavailable and the defendant has had a prior opportunity for cross examination.
In Crawford
v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the United States
Supreme Court addressed the protections afforded by the Confrontation Clause.
The defendant in Crawford was charged with assault and attempted murder;
defendant was convicted of assault. Id. at 38, 124 S. Ct. at
1357, 158 L. Ed. 2d at 184. The trial judge admitted a tape-recorded
statement of the defendant's wife, given to police while she was herself a
suspect, after the judge found the statement reliable. Id. at 38-40, 124
S. Ct. at 1356-58, 158 L. Ed. 2d at 184-86.
The
Court held that "[a]dmitting statements deemed reliable by a judge is
fundamentally at odds with the right of confrontation." Id. at 61,
124 S. Ct. at 1370, 158 L. Ed. 2d at 199. "Dispensing with
confrontation because testimony is obviously reliable is akin to dispensing
with jury trial because a defendant is obviously guilty." Id. at
62, 124 S. Ct. at 1371, 158 L. Ed. 2d at 199. The Court reversed
defendant's conviction. Id. at 68-69, 124 S. Ct. at 1374, 158 L.
Ed. 2d at 203. In Crawford, the Court's express holding applied only
to "testimonial" evidence:
Where
nontestimonial hearsay is at issue, it is wholly consistent with the Framers'
design to afford the States flexibility in their development of hearsay law — .
. . as would an approach that exempted such statements from Confrontation
Clause scrutiny altogether. Where testimonial evidence is at issue, however,
the Sixth Amendment demands what the common law
required: unavailability and a prior opportunity for cross-examination. We
leave for another day any effort to spell out a comprehensive definition of
"testimonial." [541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed 2d at 203 (footnote omitted)].
As accurately summarized by the 2007 Supreme Court Committee on
the Rules of Evidence, “the
United States Supreme Court sharply departed from its prior view of how hearsay
exceptions could be reconciled with the Confrontation Clause of the Sixth
Amendment. The Confrontation Clause
provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right to be confronted with the witnesses against him.” Before Crawford, the Supreme Court had held
that hearsay did not offend the Confrontation Clause if the out-of-court
statement fell within a “firmly rooted hearsay exception” or bore
“particularized guarantees of trustworthiness.”
Ohio v. Roberts, 448 U.S. 56, 66,
100 S. Ct. 2531, 2538, 65 L. Ed. 2d 597, 608 (1980). Now, under Crawford, testimonial statements
made by witnesses absent from trial may be “admitted only where the declarant
is unavailable, and only where the defendant has had a prior opportunity to
cross-examine.” 541 U.S. at 59, 124 S.
Ct. at 1369, 158 L. Ed. 2d at 197. In Crawford, the Court did not precisely
define “testimonial statements,” but it provided this guidance: “Whatever else the term [testimonial] covers,
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.” 541 U.S.
at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d
at 203.
The
US Supreme Court in 2006 next had the opportunity to determine hearsay
issues when the court had to decide if 911 calls are admissible if the witness
will not come to court.
In Davis v. Washington 126
S. Ct. 2266 (2006) the court held 911 Calls Sometimes Admissible and Not
Hearsay
Davis v. Washington, ___ U.S. ___, 126 S. Ct.
2266, 165 L. Ed. 2d 224 (2006), the Court elaborated on the meaning of
testimonial:
Statements
are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation
is to enable police assistance to meet an ongoing emergency. They are
testimonial when the circumstances objectively indicate that there is no such
ongoing emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
[Id. at ____, 126 S. Ct. at 2273-74, 165 L.
Ed. 2d at 237.]
The
New Jersey appellate court on March 6, 2006 had previously determined that Eyewitness 911 Call to Report Attack
Admissible as Excited Utterance. State in the Interest of J.A 385 NJ
Super. 544 (App. Div. 2006)
In this adjudication of delinquency, the non
testifying eyewitness's description of an assailant -- which was made to the
police by phone while he witnessed the attack and pursued the fleeing suspect
-- was a present sense impression under N.J.R.E. 803(c)(1) and an excited
utterance under N.J.R.E. 803(c)(2), and its admission into evidence did not
violate the U.S. Supreme Court's decision in Crawford v. Washington. 541 U.S. 36 (2004).
Certification has been
granted by the NJ Supreme Court.
In
State v Buda 389 NJ Super. 241
(App. Div. 2006) the Court held that an excited utterance made by a 3 year old
child abuse victim to a DYFS worker at a hospital, although admissible under
state evidence law, is inadmissible in this case as a result of evolving
federal constitutional jurisprudence under Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and Davis v.L. Ed. 2d 224 (2006).
Certification to the NJ Supreme Court was also granted on May 21, 2007.
Caselaw Since 1985
State
v. Berezansky 386 NJ Super. 84 (App. Div. 2006) there was a challenge to
Chemist Testimony Required in DWI Blood Case.
A lab certificate was admitted in Drug and DWI cases as a business
record under N.J.R.E. 803(c)(6) and as a public record under N.J.R.E.
803(c)(8). Based on the Crawford decision, the Appellate Division determined
that a conviction for driving
while intoxicated based on a blood test had to be reversed and remanded for a
new trial because the defendant’s right of confrontation was violated by
admitting into evidence a lab certificate that attested to his blood alcohol
content without giving him the opportunity to cross- examine the chemist who
analyzed his blood sample and prepared the certificate. Crawford v.
Washington requires state to
introduce live testimony by the chemist in blood cases.
The
Court rejected the State's reliance upon the business record or government
record exceptions to the hearsay rule to permit the admission of the lab
certificate. The rationale for those exceptions is that such a document is
likely to be reliable because it was prepared and preserved in the ordinary
course of the operation of a business or governmental entity, and not created
primarily as evidence for trial. See N.J.R.E. 803(c)(6). See
generally Biunno, Current N.J. Rules of Evidence, comment 1 to N.J.R.E.
803(c)(6); comment 2 to N.J.R.E. 803(c)(8) (2005). The certificate at
issue is not a record prepared or maintained in the ordinary course of
government business; it was prepared specifically in order to prove an element
of the crime and offered in lieu of producing the qualified individual who
actually performed the test.
Here, defendant not only
was denied his constitutional right to confront the certificate's preparer, he
was not even afforded an adequate opportunity to challenge the certificate's
reliability, because the State failed to provide requested documentation
regarding the laboratory analysis of the blood. The
Court also noted by analogy, N.J.S.A. 2C:35-19c requires the prosecutor to
provide a defendant with all documentation relating to a proffered lab
certificate as a condition for admission of that certificate attesting to the
identification of a controlled dangerous substance.
Certification
has been granted in Berezansky
The next major case to examine the Crawford
case was State v. Renshaw
390 NJ Super. 456 (App. Div. 2007). In this case the state introduced a
certificate signed by a Nurse who drew blood. The Court held that the admission in evidence
of the Uniform Certification for Bodily Specimens Taken in a Medically
Acceptable Manner, pursuant to N.J.S.A. 2A: 62A-11, without the opportunity for
cross-examination of the nurse who drew the blood, and over the objection of
defendant, runs afoul of the right of confrontation protected both by the
United States and the New Jersey Constitutions.
Another case where the Court Rules that
Nurse Can Be Required to Testify in DWI
Blood Case. Defendant Can Contest DWI Blood Lab Reports As Hearsay was State
v. Kent 391 NJ Super. 352 (App. Div. 2007)
Defendant was convicted of DWI
following a single-car rollover accident, and the Law Division affirmed his
conviction. At the municipal trial, the
State placed into evidence, among other proofs, (1) a blood sample certificate
pursuant to N.J.S.A. 2A: 62A-11 from a private hospital employee who had
extracted blood from defendant and (2) reports from a State Police laboratory
that had tested the blood samples. The authors
of those hearsay documents did not appear at trial.
The court reaffirms the holdings in State
v. Renshaw, 390 N.J. Super. 456 (App. Div. 2007) (regarding blood sample
certificates) and in State v. Berezansky, 385 N.J. Super. 84 (App. Div.
2006) (regarding State Police laboratory reports) concluding that the hearsay
documents are "testimonial" under Crawford v. Washington, 541
U.S. 36 (2004), and that defendant was thus deprived of his right of
confrontation under the Sixth Amendment.
However
the court, also noted that, unless our Supreme Court determines otherwise, the
confrontation clause of Article I, Paragraph 10 of the New Jersey Constitution
does not appear to independently require such cross-examination beyond current
federal precedents interpreting the Sixth Amendment. Additionally, the court recommends that
legislative and/or rule-making initiatives be pursued to avoid placing undue
testimonial burdens on health care workers and law enforcement personnel who
may create documents relevant to drunk driving prosecutions.
However, Defendant's DWI conviction was
affirmed on independent grounds, based upon the arresting officer's numerous
observations indicative of defendant's intoxication, and defendant's admission
of drinking.
In DWI breathalyzer cases, for decades
DWI breathalyzer certificates were admitted as an exception to Hearsay
Rules. Based on Crawford, the Appellate
Division requested the admissibility and held… ____________________________________________.
However the NJ Supreme Court granted
Certification in unreported cases on the same issue, State v. Sweet,
A-0091-05, DWI based on Breathalyzer Inspection Certification.
Hearsay
Rules do not apply to Breathalyzer certs State v.
Dorman, 393 NJ Super. 28 (App. Div., 2007).
In
this DWI appeal, the court held that notwithstanding the Supreme Court's
holding in Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354,
1374, 158 L. Ed. 2d 177, 203 (2004), a breathalyzer machine certificate of
operability offered by the State to meet its burden of proof under State v.
Garthe, 1 N.J. 1 (1996), remains
admissible as a business record under
N.J.R.E. 803(c)(6).
