On Point: j. "Testimonial" Evidence

State v. Richard Lavon Deadwiller, 2012 WI App 89, supreme court review granted 1/14/13; affirmed, 2013 WI 75; case activity

A report from an “outside” lab (Orchid Cellmark) relied on by a State Crime Lab technician for “investigative” purposes in developing a DNA match between defendant and assailant wasn’t “testimonial,” therefore didn’t violate confrontation:

¶1        Richard Deadwiller appeals the judgments entered on jury verdicts convicting him of two counts of second-degree sexual assault with the use of force.  

State v. Matthew Owen Hoff, Jr., 2011AP2096-CR, District 3, 6/26/12

court of appeals decision (1-judge, ineligible for publication); case activity

¶19      Here, before arresting Hoff, Gostovich observed him sleeping behind the wheel of a running car that was parked horizontally against the vertical parking stalls.  Hoff did not awake to Gostovich’s shouting or knocking.  When he finally awoke, he was disorientated and confused, and that disorientation “did not dissipate.”  Hoff’s speech was slowed,

Sandy Williams v. Illinois, USSC No. 10-8505, 6/18/12, affirming People v. Williams, 238 Ill. 2d 125, 939 N.E. 268

A split Court (4-1-4) upholds against Confrontation objection, admissibility of expert testimony that a DNA profile, produced by a different lab, matched Williams’ profile. Because the rationale favoring admissibility doesn’t earn a clear majority of votes, the opinion should be approached with the following principle in mind, 

State v. Richard Dean Boyer, 2011AP305-CR, District 1, 8/16/11

court of appeals decision (1-judge, not for publication); for Boyer: Walter Arthur Piel, Jr.; case activity

OWI trial, where the chemist who analyzed the blood sample testified, but the person who drew the sample didn’t: the court rejects Boyer’s argument that his right to confrontation was violated by his inability to cross-examine the person who drew the blood.

On Point is very pleased to present this Guest Post discussion of Bullcoming v. New Mexico by Daniel D. Blinka, Professor of Law, Marquette University of Virginia. (Cross-posted at Marquette.)  Professor Brandon L. Garrett, Virginia, also has a Guest Post on Bullcoming. Feel free to submit comments in the box at the end of the Post.

Note that issues discussed in these posts will be further refined by the recent grant of certiorari in Williams v.

On Point is very pleased to present this Guest Post discussion of Bullcoming v. New Mexico by Brandon L. Garrett, Professor of Law, University of Virginia. (Cross-posted at ACS. On Point has made a minor editing change in the first sentence, to add the date of decision.) Professor Garret has previously guest-posted on DNA and habeas procedure.  Professor Daniel D. Blinka, Marquette,

Docket

Decision below: People v. Williams, 238 Ill. 2d 125 (Ill. S. Ct. No. 107550)

Question Presented (by the Court):

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Hmm. Didn’t the Court just get done resolving this issue?

Donald Bullcoming v. New Mexico, USSC No. 09-10876, 6/23/11

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement.

State v. Marvin L. Beauchamp, 2011 WI 27, affirming 2010 WI App 42; for Beauchamp: Craig S. Powell; case activity

Confrontation – Dying Declaration, § 908.045(3)

¶34  We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. 

7th circuit court of appeals decision

Habeas – Certificate of Appealability

We pause briefly to note the district court’s error in denying a certificate of appealability in this case. The statute provides that a certificate of appealability may issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has interpreted this language to require a showing that “reasonable jurists could debate whether (or,