Crawford rule in Massachusetts

2010In his November, 2008, brief on direct appeal, the defendant acknowledged that this court, in Commonwealth v. Morales, 71 Mass. App. Ct. 587, 588 (2008), relying on Commonwealth v. Verde, 444 Mass. 279, 283 (2005), held that a ballistics certificate was a “ ‘record of a primary fact made by a public officer in the performance of [an] official duty’ that did not violate the defendant’s rights under the confrontation clause of the Sixth Amendment.” 4 Recognizing that Verde was controlling precedent, the defendant stated that trial counsel’s failure to object should not constitute a waiver of his

2009Commonwealth v. Verde, 444 Mass. 279, 283-284 (2005).

2018Cf. Taylor v. Beaudry , 82 Mass. App. Ct. 105 , 112, 971 N.E.2d 313 (2012) ("It is blackletter law that in the absence of a cross appeal an appellee may not obtain a decree more favorable than the one issued below").

2018Cf. Taylor v. Beaudry , 82 Mass. App. Ct. 105 , 112, 971 N.E.2d 313 (2012) ("It is blackletter law that in the absence of a cross appeal an appellee may not obtain a decree more favorable than the one issued below").

2010See Commonwealth v. Maloney, 447 Mass. 577, 591-592 (2006) (holding that G.

2010See Commonwealth v. Maloney, 447 Mass. 577, 591-592 (2006) (holding that G.

2010Commonwealth v. Vardinski, 438 Mass. 444, 452 (2003), and cases cited.

2010In his November, 2008, brief on direct appeal, the defendant acknowledged that this court, in Commonwealth v. Morales, 71 Mass. App. Ct. 587, 588 (2008), relying on Commonwealth v. Verde, 444 Mass. 279, 283 (2005), held that a ballistics certificate was a “ ‘record of a primary fact made by a public officer in the performance of [an] official duty’ that did not violate the defendant’s rights under the confrontation clause of the Sixth Amendment.” 4 Recognizing that Verde was controlling precedent, the defendant stated that trial counsel’s failure to object should not constitute a waiver of his

2010Commonwealth v. Crapps, supra. Second, we determined that a docket sheet was not testimonial “because authors of prior conviction records are not witnesses against criminal defendants.” Id. at 916 n.3, citing People v. Shreck, 107 P.3d 1048, 1060-1061 (Colo. Ct. App. 2004) (docket sheets are business records that are explicitly exempt from the Crawford standard).

2010Commonwealth v. Crapps, supra. Second, we determined that a docket sheet was not testimonial “because authors of prior conviction records are not witnesses against criminal defendants.” Id. at 916 n.3, citing People v. Shreck, 107 P.3d 1048, 1060-1061 (Colo. Ct. App. 2004) (docket sheets are business records that are explicitly exempt from the Crawford standard).

2009See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”); Commonwealth v. Burgess, 450 Mass. 422, 431 (2008); Commonwealth v. Galicia, 447 Mass. 737, 739 (2006).

2009See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”); Commonwealth v. Burgess, 450 Mass. 422, 431 (2008); Commonwealth v. Galicia, 447 Mass. 737, 739 (2006).

2009See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”); Commonwealth v. Burgess, 450 Mass. 422, 431 (2008); Commonwealth v. Galicia, 447 Mass. 737, 739 (2006).

2009See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”); Commonwealth v. Burgess, 450 Mass. 422, 431 (2008); Commonwealth v. Galicia, 447 Mass. 737, 739 (2006).

2009See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”); Commonwealth v. Burgess, 450 Mass. 422, 431 (2008); Commonwealth v. Galicia, 447 Mass. 737, 739 (2006).

2009See Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (“failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication”); Commonwealth v. Burgess, 450 Mass. 422, 431 (2008); Commonwealth v. Galicia, 447 Mass. 737, 739 (2006).

2008Thus, the defendant was put, as his counsel ruefully explained, “in [the] untenable position of putting, as the last thing the jury hears, the complaining witness back in front of the jury to recount that initial moment.” Although courts “have frequently expressed [their] preference for early rulings on motions in limine,” Commonwealth v. Vaidulas, 433 Mass. 247, 250 (2001), here the judge was faced with a question (what makes a report “testimonial”?) under the Crawford decision that was utterly novel (Crawford was decided March 8, 2004, and the trial began March 24, 2004) and remains a gray a

2008While a State may choose to apply the Crawford principle retroactively under its own law, see Danforth v. Minnesota, 128 S. Ct. 1029, 1041-1042 (2008), there has been no indication to date that this is a view that the Supreme Judicial Court is likely to adopt.

2005The Crawford rule thus falls short of being central to an accurate determination of innocence or guilt “without which the likelihood of an accurate conviction is seriously diminished.” See Teague v. Lane, 489 U.S. at 313 ; Schriro v. Summerlin, 542 U.S. at_, 124 S.Ct. at 2523.

2005The Crawford rule thus falls short of being central to an accurate determination of innocence or guilt “without which the likelihood of an accurate conviction is seriously diminished.” See Teague v. Lane, 489 U.S. at 313 ; Schriro v. Summerlin, 542 U.S. at_, 124 S.Ct. at 2523.

2005“That a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished.’ ” Schriro v. Summerlin, 542 U.S. 348 , 124 S.Ct. 2519, 2523 , 159 L.Ed.2d 442, 449 (2004), quoting Teague v. Lane, 489 U.S. at 313 ; Gilmore v. Taylor, 508 U.S. 333, 345 (1993) (small core of rules to be applied retroactively are those requiring the observance of procedures which are implicit in the concept of ordered liberty); Sawyer v. Smith, 497 U.S. 227, 244 (1990) (because rule designed to enhance the accu

2005That Crawford does not establish a new procedure so fundamental so as to be “implicit in the concept of ordered liberty,” see Gilmore v. Taylor, 508 U.S. at 345 , is also evident from the standard of review applicable to Confrontation Clause violations.

2005“That a new procedural rule is ‘fundamental’ in some abstract sense is not enough; the rule must be one ‘without which the likelihood of an accurate conviction is seriously diminished.’ ” Schriro v. Summerlin, 542 U.S. 348 , 124 S.Ct. 2519, 2523 , 159 L.Ed.2d 442, 449 (2004), quoting Teague v. Lane, 489 U.S. at 313 ; Gilmore v. Taylor, 508 U.S. 333, 345 (1993) (small core of rules to be applied retroactively are those requiring the observance of procedures which are implicit in the concept of ordered liberty); Sawyer v. Smith, 497 U.S. 227, 244 (1990) (because rule designed to enhance the accu

2005The Crawford rule thus falls short of being central to an accurate determination of innocence or guilt “without which the likelihood of an accurate conviction is seriously diminished.” See Teague v. Lane, 489 U.S. at 313 ; Schriro v. Summerlin, 542 U.S. at_, 124 S.Ct. at 2523.

2005The Crawford rule thus falls short of being central to an accurate determination of innocence or guilt “without which the likelihood of an accurate conviction is seriously diminished.” See Teague v. Lane, 489 U.S. at 313 ; Schriro v. Summerlin, 542 U.S. at_, 124 S.Ct. at 2523.

2005See Commonwealth v. White, 392 Mass. 282, 295 (1984) (defendant entitled to new trial based on retroactively applicable constitutional principle unless error was harmless beyond a reasonable doubt).

2005See Commonwealth v. White, 392 Mass. 282, 295 (1984) (defendant entitled to new trial based on retroactively applicable constitutional principle unless error was harmless beyond a reasonable doubt).

2005Again, I agree that the present matter needs to be remanded so that that separate Crawford analysis can be made on a record addressing the issue, but I see nothing in the record to date to suggest that this particular declarant had any “awareness or expectation that [her] statements [would] later be used at a trial,” United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), cert. denied, 543 U.S. 1079 (2005), or that her purpose in making them was to preserve her testimony for use in future legal proceedings, Hammon v. State, supra at 457-458.

2005Again, I agree that the present matter needs to be remanded so that that separate Crawford analysis can be made on a record addressing the issue, but I see nothing in the record to date to suggest that this particular declarant had any “awareness or expectation that [her] statements [would] later be used at a trial,” United States v. Saget, 377 F.3d 223, 228 (2d Cir. 2004), cert. denied, 543 U.S. 1079 (2005), or that her purpose in making them was to preserve her testimony for use in future legal proceedings, Hammon v. State, supra at 457-458.

2005See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), citing Mungo v. Duncan, 393 F.3d 327,335-36 (2d Cir. 2004).

2005See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), citing Mungo v. Duncan, 393 F.3d 327,335-36 (2d Cir. 2004).

2005See Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005) (reasoning that (1) the Supreme Court describes the right to confrontation as a “bedrock procedural guarantee,” (2) the harmless error standard of review used to assess misapplication of constitutional rules is appropriate where the impact of the error is measurable but its use does not answer the question of whether the constitutional rule increases the likelihood of an accurate conviction or is a bedrock rule of procedure; and (3) because the Confrontation Clause is designed to promote accuracy, “the Crawford’ rule is one without whi

2005See Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005) (reasoning that (1) the Supreme Court describes the right to confrontation as a “bedrock procedural guarantee,” (2) the harmless error standard of review used to assess misapplication of constitutional rules is appropriate where the impact of the error is measurable but its use does not answer the question of whether the constitutional rule increases the likelihood of an accurate conviction or is a bedrock rule of procedure; and (3) because the Confrontation Clause is designed to promote accuracy, “the Crawford’ rule is one without whi

2005See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), citing Mungo v. Duncan, 393 F.3d 327,335-36 (2d Cir. 2004).

2005See Bintz v. Bertrand, 403 F.3d 859, 867 (2005), citing Mungo v. Duncan, 393 F.3d 327,335-36 (2d Cir. 2004).

2005However, if the declarant of a spontaneous utterance is not being subjected to police interrogation, it is unlikely in the extreme that the circumstances will satisfy the more general formulations of “testimonial.” It is still a separate inquiry, and the defendant is entitled to have the Crawford analysis conducted independently of the evidentiary analysis under the spontaneous utterance exception, but it is the rare circumstance — falling almost into the category of “never say never” — that a spontaneous utterance made outside of any “police interrogation” will qualify as “testimonial.” See U

2005However, if the declarant of a spontaneous utterance is not being subjected to police interrogation, it is unlikely in the extreme that the circumstances will satisfy the more general formulations of “testimonial.” It is still a separate inquiry, and the defendant is entitled to have the Crawford analysis conducted independently of the evidentiary analysis under the spontaneous utterance exception, but it is the rare circumstance — falling almost into the category of “never say never” — that a spontaneous utterance made outside of any “police interrogation” will qualify as “testimonial.” See U