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Melendez Diaz’s footnote 1 elucidates, but does not limit, the wonderful M-D opinion

Sep 14, 2009 Melendez Diaz’s footnote 1 elucidates, but does not limit, the wonderful M-D opinion

Soon after its release, I felt resistance by many judges to Crawford v. Washington,  541 U.S. 36 (2004), which prohibits testimonial hearsay at trial where the declarant does not testify. Now I feel resistance to Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527 (2009) which command judges to follow Crawford.

At a recent criminal bench trial, the judge seemed to take comfort in Melendez’s footnote 1 — whether or not relying much on it — before overruling my objection to a cop’s testimony about the results of running a license plate number for the owner’s address. The essence of Melendez-Diaz’s footnote 1 is the following passage:

“It is up to the prosecution to decide whatsteps in the chain of custody are so crucial as to require evidence; butwhat testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course ofequipment maintenance may well qualify as nontestimonial records.”

Concerning business records, the District of Columbia’s Superior Court recognized that Melendez-Diaz substantially limits the admission of records custodian’s affidavits without the live testimony of records custodians. Tabaka v. D.C.976 A.2d 173 (D.C. 2009), reversed a conviction for driving without an operator’s permit, because the conviction required reliance on “a document from a D.C. Department of Motor Vehicles official certifying that its records revealed no evidence of an operator’s permit having been issued to appellant.” Tabaka found the certificate of no record to be testimonial evidence, and reversed the conviction, because “the CNR was the sole and sufficient proof of appellant’s non-licensure to operate a motor vehicle.” Tabaka.1

Footnote 1 The case is aptly named, as tabaka is Amharic for lawyer.

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