July 25, 2006
I put off writing anything about Crawford v. Washington for over a month, and now I can't shut up about it...
We discussed the decision last week, here and here, and I came across some additional stuff. I mentioned a couple of months ago the statute which permits the state to introduce drug tests without the testimony of the chemist who performed them. Even when "live" testimony for a test is given, it often happens that someone other than the person who actually performed the tests will testify, based upon the latter's notes. And it's not uncommon for records of the calibration or other information concerning breathalyzers to come in under the business records exception to the hearsay rule.
Does any of this violate Crawford? The 3rd District thought so last year, throwing out a conviction where the state sought to introduce DNA tests through someone other than the person who'd actually performed them. The 6th District, though, came to a contrary conclusion, holding in a DWI case that documents establishing that the breathalyzer was properly calculated and that the officer performing the test was qualified to do so were properly admitted as business records.
The Ohio Supreme Court certified the conflict between the two cases, and will probably rule on it early next year. Stay tuned.