WA Court of Appeals - Div. I: Confrontation Clause Requires the Witness, Not a Piece of Paper for DOL Testimony
I apologize for the link to the Washington Courts site. Google Scholar is slacking with its polling, even though this opinion was entered almost a week ago.
Anyhow. Jasper was driving. He didn't have a license. Because the Prof is cheap and lazy and doesn't know how to add youtube to this properly, I will instead just give you a link to the kid from the Charlie Bit Me Video....his name is Jasper and he's pushing Charlie around in a car. Its the first thing that came up, and its super cute!
Anyhow, you can imagine what Jasper was charged with...not the cute Jasper in the video, the abstract one in the opinion.
So the State, to prove that there was no license came up with an affidavit from the DOL saying they did a search and found no valid license. Unfortunately, it's hard to cross-examine an affidavit. This tends to violate the confrontation clause, which requires an opportunity to cross-examine. The supreme court analyzed our law in relation to the recent United States Supreme Court Case of Melendez-Diaz:
The affidavit is not merely a certification that the agency records attached to the affidavit were true and correct copies of records possessed by the DOL. Without question, such a statement would be of the type approved by Melendez-Diaz. 129 S. Ct. at 2539; see, e.g., United States v. Mallory, __ F. Supp. 2d __, 2010 WL 1286038, *3 (E.D. Va. 2010) ("[T]he FedEx custodian's certification in this case does not comment on the content or meaning of the record. . . . [and] does not attempt to describe or decipher the content of the business record" but merely certified that the attached documents were true copies of records kept in the regular course of business).
Instead, the affidavit herein contains ex parte statements made for the purpose of establishing the fact that Jasper was driving with a suspended license on the day of the collision. The affidavit first asserts that the affiant performed a diligent search, implying that the person searching the records knew what records to search for, knew how to find them in the database, and conducted the search correctly. The affidavit next states that Jasper's license was suspended on a particular day. This statement explains what the results of the records search revealed and what the witness concluded from the records searched. These statements are testimonial because they constitute factual assertions, intended to prove an element of a crime charged. They are not mere statements of the authenticity of the attached records themselves. The affidavit also contains an indirect assertion regarding the non-existence of a record, impliedly asserting that no agency records exist indicating either that Jasper avoided suspension of his license by properly attending to the prior citations referenced in the two letters or that his license was ever reinstated following such a suspension. A statement asserting that a particular record does not exist, when offered to establish that fact, is testimonial.
Let's hope Jasper remembers to get his license...and hopefully some insurance...before his next crash.