Legal News

In one of the court's end-of-term decisions issued in June, however, someone (likely the justices' clerks) missed the boat. The case, Melendez-Diaz v. Massachusetts, involved the admissibility at a state criminal trial of affidavits reporting the results of a forensic analysis. In its 2004 Crawford v. Washington decision, the Supreme Court had held that, under the Constitution's Confrontation Clause, testimonial evidence is inadmissible against a criminal defendant unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity to cross-examine the witness. In Melendez-Diaz, a 5-4 majority of the court held that, because the forensic analyst's affidavits were testimonial, they were inadmissible unless the state could show that the analyst was unavailable and the defendant had a prior opportunity to cross-examine the analyst.

Justice Anthony Kennedy, in a dissenting opinion, argued (among other things) that the forensic analyst's report was not testimonial because an "observation recorded at the time it is made is unlike the usual act of testifying." According to Kennedy, "We gave this consideration substantial weight in [Davis v. Washington]. There, the 'primary purpose' of the victim's 911 call was 'to enable police assistance to meet an ongoing emergency,' rather than 'to establish or prove past events potentially relevant to later criminal prosecution.'"

Justice Antonin Scalia, writing for the majority, responded, "the dissent misunderstands the role that 'near-contemporaneity' has played in our case law. The dissent notes that that factor was given 'substantial weight' in Davis, but in fact that decision disproves the dissent's position." Ah, here we go. The majority will explain the real meaning of the disputed precedent, demolish the dissent's argument on this point, and move on to the next issue.

As the majority explained, in Davis, "the Court considered the admissibility of statements made to police officers responding to a report of a domestic disturbance. By the time officers arrived the assault had ended, but the victim's statements-written and oral-were sufficiently close in time to the alleged assault that the trial court admitted her affidavit as a 'present sense impression.' Though the witness's statements in Davis were 'near-contemporaneous' to the events she reported, we nevertheless held that they could not be admitted absent an opportunity to confront the witness." Take that, dissenters.

The only problem was that the dissent and majority were talking about two different cases. In its 2006 Davis decision, the court had consolidated two appeals for disposition: Davis v. Washington and Hammon v. Indiana. In the actual Davis case, the court held that statements a victim frantically made to a 911 operator immediately after an alleged assault were not testimonial and therefore not subject to the Confrontation Clause. In Hammon, the court held that statements made by a victim as part of an investigation into recent criminal conduct were testimonial and therefore subject to the Confrontation Clause.

Both decisions in Davis were made part of a single opinion, captioned Davis v. Washington, thus leading to the confusion in the recent Melendez-Diaz decision. As becomes evident from review of the dueling opinions in Melendez-Diaz, the dissent was referring to the actual Davis decision, while the majority, in retorting that Davis "disproves the dissent's position," was actually discussing Hammon. Thus, the Justices were talking right past each other and arguing over the meaning of two different cases.

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP