As reported here recently, the lower courts continue to struggle to apply the new, restrictive Confrontation Clause jurisprudence of the Supreme Court's decision last year in Melendez-Diaz to various kinds of certifications and reports which previously were regularly admitted at trial. Subject now to a searching Sixth Amendment analysis which bars admission of hearsay statements when the declarant is unavailable at trial and there has been no prior opportunity for cross-examination, most formerly routinely-admitted paper records upon which prosecutors have relied should be barred. Some courts have stepped boldly into this new world, while others have notably stumbled at the doorway.

There are two recent illustrations of this fascinating dynamic at work. In United States v. Martinez-Rios, 2010 WL 323553 (5th Cir., Jan. 28, 2010), the Fifth Circuit held correctly that the defendant's Sixth Amendment rights were violated when the trial judge admitted, in an illegal re-entry case, an Immigration Certificate of Non-Existence of Record (CNR) to establish the essential element that the defendant was not authorized to re-enter the United States after deportation. Although Fifth Circuit precedent had previously permitted the introduction of CNR's, the court recognized that Melendez-Diaz had changed the landscape; the CNR was testimonial in nature and was improperly admitted.

Conviction reversed even on a plain error standard, right? No. The appeals court found sufficient other evidence in the record to establish the element of lack of authority: the defendant had been found by authorities lurking in bushes after having admitted crossing the Rio Grande into Texas and also admitted having "no documents." If the foregoing is adequate proof of non-authorized entry, then every alien found walking into the United States should be presumed to lack authority and CNR's would be unnecessary. However, this thin, circumstantial evidence -- or, as the Fifth Circuit put it "all that testimony" -- showed that the erroneous admission of the CNR did not affect the defendant's substantial rights. Result: conviction affirmed.

At least the Fifth Circuit correctly, and easily, applied Melendez-Diaz. In contrast, the First Circuit in United States v. Dowdell, 2010 WL 481416 (1st Cir., Feb. 12, 2010), dropped the ball completely. Dowdell was convicted of drug distribution; his defense was misidentification and included the claim that he was not the individual nicknamed "Smoke" shown in a blue shirt on a surveillance video shot shortly before his arrest. The government offered at trial the booking sheet prepared at the time of arrest, in which a police officer reported that Dowdell was wearing a "blue plaid shirt."

The trial court had admitted the booking report under Fed. R. Evid. 803(8), the government-records hearsay exception, which however excludes from its embrace police reports and other records evincing matters observed by police officers. The appeals court first made quick work of the seeming bar posed by the evidence rule, saying that "we decline to give it a literal, unqualified meaning." So, the booking sheet somehow passed muster under the hearsay exception.

It cannot be determined from the opinion if a Melendez-Diaz objection was made below, but the First Circuit was applying a de novo standard of review to the trial court ruling, so was free to raise the Confrontation Clause issue sua sponte. Incredibly, though, the First Circuit failed to measure the admissibility of the inculpatory booking sheet under the controlling Sixth Amendment standard. It is obvious that the police officer's observations, recorded on the booking sheet, are testimonial, and were made by a declarant who neither testified at trial nor was ever subject to cross-examination. The single most important item of evidence linking Dowdell to "Smoke" was admitted unconstitutionally and the conviction was flawed. Result: conviction affirmed.