Motion In Limine for Crawford issue by zPI7RLT

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									                      COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss                                           Trial Court of Massachusetts
                                                      Dorchester District Court



__________________________________________
                                                      )
COMMONWEALTH OF MASSACHUSETTS,                        )
                                                      )
v.                                                    )               No.
                                                      )
,                              )
                                          )
                  Defendant.              )
__________________________________________)


                  Memorandum of Law in Support of Defendant’s
                 Motion in Limine to Exclude Certificates of Analysis

       The Defendant, , submits this Memorandum of Law in opposition to the

admission of two drug certificates without the live testimony of either Daniela Frasca or

Michael Lawler of the Department of Public Health. The defendant maintains that the

admission of these documents without such witnesses is violative of his right to confront

witnesses against him as provided in the Sixth Amendment to the United States

Constitution and Article 12 of the Massachusetts Declaration of Rights.

       Mr. _______ has been charged with distributing heroin in violation of G.L. c.

94C, § 31, possessing heroin with the intent to distribute it in violation of G.L. c. 94C, §

31, and two corresponding charges of committing such offenses within a school zone in

violation of G.L. c. 94C, § 32J. In order to prove these charges the Commonwealth must

offer evidence demonstrating that the items in question are in fact controlled substances

within the definitions provided in G.L. c. 94C. Discovery materials received from the
Commonwealth reveal that the prosecution will attempt to demonstrate this by seeking to

introduce two certificates of analysis from the Department of Public Health. However,

the conclusory statements contained in these documents are testimonial hearsay. As

such, they may only be introduced as evidence if the defendant has an opportunity to

cross-examine the declarant in order to protect his constitutional right of confrontation.

Because the Commonwealth’s witness list does not include either Daniela Frasca or

Michael Lawler, the declarants of the hearsay statements contained in the certificates of

analysis, the defendant will have no opportunity to cross-examine them. Therefore, these

documents must be excluded.

I.     Mr. Townsend has a federally and state protected right to confront his
       accusers.

       The Sixth Amendment’s Confrontation Clause provides that in all criminal

prosecutions the accused shall have the right to confront the witnesses against him.

Pointer v. Texas, 380 U.S. 400, 406 (1960) (holding that the Sixth Amendment’s right of

an accused to confront the witnesses against him is a fundamental right and is therefore

made obligatory on the States by the Fourteenth Amendment). The right to confront

witnesses “is designed to make prosecution witnesses available for full cross-examination

by the defendant and to ensure that the testimony of a witness is given under oath before

the jury who will have an opportunity to observe the demeanor of the witness as he

testifies.” Commonwealth v. Canon, 373 Mass. 494, 509 (1977) (Liacos, J., dissenting),

cert. denied, 435 U.S. 933 (1978) (discussing the unavailability of a witness who asserts

his right against self-incrimination, as it pertains to the defendant’s right to confront

witnesses). The Commonwealth’s failure to present for cross-examination the chemists

who tested the substances seized in Mr. Townsend’s case and who signed the certificates
of analysis mandates that the certificates may not be admitted, lest his state and federal

rights be violated.

II.    Testimonial hearsay may not be admitted unless the witness is shown to be
       unavailable and the defendant has an opportunity to cross-examine the
       witness.

       The United States Supreme Court recently reinforced the importance of a

defendant’s confrontation rights in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354

(2004). In Crawford, the court held that where testimonial evidence is at issue, such

evidence is only admissible where the declarant is unavailable and the accused has had a

prior opportunity for cross-examination of the declarant. Crawford, 541 U.S. at ___, 124

S.Ct. at 1374. “To be sure, the Confrontation Clause’s ultimate goal is to ensure

reliability of evidence, but it is a procedural rather than a substantive guarantee. It

commands, not that evidence be reliable, but that reliability be assessed in a particular

manner: by testing in the crucible of cross-examination.” Crawford, 541 U.S. at ___,

124 S.Ct. at 1370; quoted at Commonwealth v. Given, 441 Mass. 741, 747 n. 9 (2004).

Where a defendant’s rights involving testimonial statements are involved, “[l]eaving the

regulation of out-of-court statement to the law of evidence would render the

Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices.”

Crawford, 541 U.S. at ___, 124 S.Ct. at 1364.

III.   The statements and conclusions contained in the certificates of analysis are
       testimonial in nature.

       The Crawford analysis applies here because the statements and conclusions at

issue are testimonial in nature. Crawford, 541 U.S. at ___, 124 S.Ct. at 1374 (“Where

testimonial evidence is at issue … the Sixth Amendment demands what the common law

required: unavailability and a prior opportunity for cross-examination.”). Although the
Supreme Court declined in Crawford to provide a comprehensive definition of the term

“testimonial,” the Court did state that the term includes: 1) ex parte, in-court testimony

or its functional equivalent, including affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially; 2) extrajudicial statements

contained in formalized testimonial materials, such as affidavits, depositions, prior

testimony, or confessions; or 3) statements that were made under circumstances which

would lead an objective witness reasonably to believe that the statement would be

available for use later at trial. See Crawford, 541 U.S. at ___, 124 S.Ct. at 1364.

       Under the even the narrowest interpretation, these documents and the statements

contained therein are testimonial. They were produced for the purpose of gathering

evidence against the defendant, and with the “ultimate goal of successfully prosecuting”

him. See, e.g., People v. Hernandez, (2005 NY Slip Op 25007) (holding that the

defendant’s Sixth Amendment rights would be violated if a fingerprint report was

admitted at trial as a business record if he had no opportunity to cross-examine the

report’s preparer as to his methods) citing People v. Rogers, 8 AD3d 888 (3rd Dept.

2004) (holding that defendant’s Sixth Amendment rights were violated when the trial

court admitted a report of the victim’s blood which had been generated by a private lab at

the request of law enforcement because it was testimonial in naute). “Although it is

unclear exactly what the Supreme Court meant by ‘testimonial,’ it seems clear that its

parameters … include the ‘[i]nvolvement of government officers in the production of

testimony with an eye toward trial.’” Hernandez, citing Crawford, at 42. The certificates

of analysis here were prepared at the request of law enforcement and to be used for the
purpose of enforcement of law. G.L. c. 111, § 12 (directing the Department of Public

Health to make a chemical analysis of narcotic drugs “submitted to it by police

authorities… provided, that it is satisfied that the analysis is to be used for the

enforcement of law”). As such, the certificates of analysis here may not be admitted

unless the defendant has an opportunity to cross-examine the preparer of those

documents.

IV.    The Commonwealth cannot demonstrate that the witnesses are unavailable
       to testify, nor has the defendant had prior opportunity to cross-examine
       them.

       In order to get past this step in the Crawford analysis of a defendant’s Sixth

Amendment rights, where the Commonwealth seeks to offer testimonial statements of a

non-testifying witness it must demonstrate that the declarant is unavailable and the

accused has had a prior opportunity for cross-examination of the declarant. Crawford,

541 U.S. at ___, 124 S.Ct. at 1374. As Mr. Townsend has had no such prior opportunity

to cross-examine the preparers of the certificates, the Commonwealth will not be able to

lay the required foundation and may not introduce them into evidence. See Crawford,

541 U.S. at ___, 124 S.Ct. at 1374 (“In this case, the State admitted [the witness’s]

testimonial statement against petitioner, despite the fact that he had no opportunity to

cross-examine her. That alone is sufficient to make out a violation of the Sixth

Amendment.”). “Where testimonial statements are at issue, the only indicum of

reliability sufficient to satisfy constitutional demands is the one the Constitution actually

prescribes: confrontation.” Crawford, 541 U.S. at ___, 124 S.Ct. at 1374. Because Mr.

Townsend will not be able to confront his accusers in this instance and the
Commonwealth has not shown that they are unavailable to testify, this evidence must be

excluded.




                                                   Mr. _________
                                                   By his attorney,



                                                   ______________________________
                                                   Brandon L. Campbell
                                                   BBO No. 647227
                                                   2045 Centre Street
                                                   West Roxbury, MA 02132
                                                   Tel: 617-323-9995


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