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Notice and demand and 2925.51

Last summer, in Melendez-Diaz v. Massachusetts (discussed here), the US Supreme Court held that admission of lab reports without the live testimony of the person who performed them violated a defendant's confrontation rights.  The Court did sanction the use of "notice and demand" statutes, which notified the defendant of the report and then required him to demand the testimony of the analyst if he desired.  The Court specifically cited Ohio's statute, RC 2925.51, as one which would pass muster.  Last week, in State v. Moore, the 8th District agreed.

But it says here the 8th got it wrong, at least as it applied to Moore.

Moore's odyssey through the legal system began back in 2004, when he was tried for several drug transactions that had occurred two years earlier.  The state introduced the testimony of two lab analysts, and also introduced the lab reports.  Moore appealed his conviction, arguing, among other things, that the testimony of the lab analysts was inadmissible hearsay and violated his right to confrontation.  In Moore I, the court rejected this, noting that RC 2925.51(A) allowed lab reports to be admitted into evidence unless the defendant demanded them seven days prior to trial.

There were three problems with that conclusion.  First, the judge hadn't considered it, and the state hadn't argued it.  That's not an insurmountable hurdle; it's a standard rule that if a trial judge's decision can be sustained, even on a basis that he didn't consider, the judgment will be affirmed. 

Problem number two, though, was that the statute had nothing to do with Moore's argument about the testimony of the other analysts; 2925.51 deals only with the admissibility of the lab report.  Again, that might be overcome; a court could conclude that if the lab report was admissible, any error in allowing the lab analysts' testimony was harmless.

That gets us to problem number three.  The statute, as you can see, imposes numerous requirements on the state before the duty of the defense to demand live testimony is triggered.  The report not only has to be given to defense counsel, it has to include an affidavit from the analyst, giving an outline of his training, education, and experience, and it has to include a notice of the right to demand testimony.  As Moore argued in his appeal to the Ohio Supreme Court, there was nothing in the record to indicate that the state had complied with any of this.  In fact, it almost surely hadn't.  I've been practicing law here for over 34 years, and I've never, not once, had a case in which the state provided me with a lab report in compliance with the statute.  It's not that they don't know about it, it's simply that the tests are performed in a lab that's in the same building as the courthouse, so the prosecutors know that if you're not willing to stipulate to the lab tests, the analyst is a phone call and five-minute walk away.

In 2008, the Supreme Court remanded Moore 1 for reconsideration in light of its decision in State v. Crager.   Crager had held that lab results weren't "testimonial" within the meaning of Crawford v. Washington, and thus the defendant wasn't entitled to cross-examine the person who'd actually performed the test.  That was a softball, and in Moore 2 the 8th promptly crushed it out of the park:  after all, Crager had upheld one analyst testifying to the tests performed by a different one, and that was precisely the issue raised in Moore.  No mention of 2925.51.

Indefatiguable, Moore appealed again, and sought review before the US Supreme Court when the gang in Columbus declined to hear his further appeal.  When Melendez-Diaz came down, the Supremes vacated Moore 2 and sent the whole thing back to the 8th for reconsideration in light of that decision.   Last week produced Moore 3, in which the court concludes that since Moore failed to demand the testimony of the original analyst in conformity with RC 2925.51(C), he waived any constitutional objection to it.

The first problem here is that Moore 3 reads 2925.51(C) in a vacuum.  If you look at the entire statute, it's clear that the duty to object isn't triggered unless the state complies with the rest of the statute.  Stated more accurately, the statute specifies that if the state does certain things -- gives the report to the defense, with an affidavit from the analyst attached, and with the a notice of the right to demand live testimony included -- then the report will be prima facie evidence of the contents of the drug, unless the defense does in fact demand live testimony.  (It might be more accurately called a "notice and object" statute.)

Assuming the state didn't do that -- a safe assumption, based upon past practice here and the fact that the opinion gives no indication that the state did -- what's the effect?  Back in 2004, the 3rd District held in State v. Bates that strict compliance with the statutory prerequisites was necessary for admission of the report.  And Bates, coming just two months after Crawford, didn't consider the constitutional ramifications of the statute.  (Several subsequent decisions on 2925.51 ignored those ramifications on grounds that Crawford didn't apply to lab reports, but that issues was of course put to rest in Melendez-Diaz.)  Given all that, it's difficult to see how the report in Moore would be admissible.

The second problem is that Moore 3  completely fails to address the real issue in the case:  the testimony given by analysts who didn't perform the tests.  There's no question that runs afoul of Melendez-Diaz.  If the report were admissible, an argument could be advanced that the error in allowing testimony by the other analysts was harmless, but as we've seen, that's not going anywhere, either.

Or at least shouldn't.  My guess is that Moore's journey through the appellate system isn't done yet.


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