The Court of Appeals announced its decision in Norton v. State today. I was privileged to have been local counsel on the amicus brief filed by the Innocence Network in this case. The case was a win for Norton, but more importantly, it was a win for all defendants who wish to confront scientific evidence offered against them in court.
The rules governing application of the Confrontation Clause have been changing over the past few years. A series of cases had helped to expand the ability of defendants to confront scientific evidence: Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico. These cases required the State to produce in court a chemist who actually tested a defendant’s blood in a DUI case. I was also privileged to have helped to write the amicus brief filed in Bullcoming by the National Association of Criminal Defense Lawyers and the National College for DUI Defense.
Unfortunately, in Williams v. Illinois, the Supreme Court backtracked and ruled that in a DNA case, the State did not have to produce the analyst. However, there was no majority for what became a plurality opinion of four justices. There were also four justices in dissent. The deciding vote was cast by Justice Thomas, who agreed with the dissenting justices with respect to their reasoning but voted to not require confrontation because the document stating what the DNA results were was not sufficiently formal. This confusing alignment of justices brought into question what rule should be applied by the lower courts.
The use of such a rigid formality requirement meant that the least reliable statements, the ones that are unsworn and prepared with less effort, would be admitted without being confronted. Only the most reliable, sometimes sworn, and most carefully prepared statements are confronted. Being able to confront only the more reliable scientific statements turns logic on its head. As a result of the diminution in the ability to cross-examine scientific documents and processes, the risk of convicting the innocent was increased.
In Derr v. State (Derr II), the Court of Appeals adopted Justice Thomas’s reasoning even though none of the other eight justices agreed with him. In Norton, the Court of Appeals recognized that none of the other courts looking at this question took their point of view. They broadend the class of statements for which confrontation could be required.
Under Norton II, the Court of Appeals announced a three-part test for determining whether a statement is testimonial. First the court should consider if the statement is sufficiently formal under Justice Thomas’s definition in Williams; second, the court should consider if qualifies under Justice Alito’s opinion in Williams in that it has “the primary purpose of accusing a targeted individual;” or, third, the court can conclude the statement is sufficiently analogous to the statement held to be testimonial in Bullcoming. While this approach is certainly an improvement to the approach the court took in Derr II, in this author’s opinion, it is still too restrictive to sufficiently ensure confrontation of witnesses who should be required to testify in the State’s case-in-chief under Melendez-Diaz and Bullcoming. It is a huge step forward though.
If you are facing criminal or traffic charges in Maryland state or federal court, call Leonard R. Stamm of Goldstein & Stamm, P.A. at 301-345-0122 for a free consultation.
Leonard R. Stamm
Goldstein & Stamm, P.A.
6301 Ivy Lane, Suite 504
Greenbelt, MD 20770
Author: West’s Maryland DUI Law