Michigan's Supreme Court busy analyzing court rule changes

The proposal for "Notice and Demand" is still constitutionally defective I have to admit that I missed something. I was among the lawyers to respond to the proposed "notice and demand" provision of MCR 6.202. However, despite the many revisions that I made to my letter, after I re-read the proposal multiple times and thought about the practical implications on the everyday criminal justice system I completely overlooked something. The proposal is a violation of confrontational jurisprudence in the United States. At face value, MCR 6.202 is a great idea and perfectly consistent with the Supreme Court's recent opinions on the confrontation clause. However, the problem with the court rule is fundamental. The proposed court rule requires that the prosecutor disclose results of a lab analysis a minimum of 28 days before trial if the prosecutor intends to use that analysis as evidence in the trial. The defense then has 14 days within which to object. If the defense objects then the court decides the admissibility of the report. ADM File No 2010-14 The administrative order announcing the rule specifically cites to the case, Melendez-Diaz v Massachusetts, 129 SCt 2527 (2009). In the Melendez-Diaz case, the Supreme Court held that the certificate of analysis declaring an unknown substance as cocaine was a testimonial statement requiring confrontation. Therefore, the author of the document needed to be produced at trial by the prosecutor in order to be confronted by the accused. The staff comment to the proposed order to create MCR 6.202 states: The intent of this proposed new rule is to create a "notice and demand" rule that would allow forensic reports to be admitted into evidence without the forensic analyst's presence if the defendant does not object. The proposed rule is based on favorable discussion by the United States Supreme Court in Melendez-Diaz v Massachusetts, 557 US ___; 129 S Ct 2527 (2009). Although the Supreme Court struck down the Massachusetts procedure for admitting forensic evidence without attendance by the forensic analyst, it noted that some states have adopted "notice and demand" provisions that create a procedure by which forensic reports may be admitted into evidence if the defendant does not object to the report's entry. ADM File No 2010-14 (Staff comment) The court also recognized in footnote 13 of the opinion that some notice and demand statutes (but not necessarily every conceivable notice and demand statute) would satisfy the constitutional requirement in the 6th amendment that the accused have the opportunity to confront the accuser. There are many details in the proposed court rule that create practical concerns for those on both sides. The prosecutor must provide the lab analysis with specific boxes checked 28 days before trial if he or she intends to admit the lab report for example. In addition, even if the rule is adopted it does not apply to district court where most operating while intoxicated charges are litigated. The biggest problem with the proposed rule is that it is not constitutional in light of Melendez and now Bullcoming. The reason is because of what the defendant gets if he asserts his "constitutional" right through the demand clause of the rule: a hearing at which the judge decides that the evidence is admissible under the rules of evidence. Confrontation means that the witness with testimony to offer against the accused must come forward and testify live. Confrontation does not mean that the judge gets to decide on whether a lab report is admitted in evidence if you assert your constitutional right to confront the witnesses and evidence against you. The way the rule is drafted, the judge decides whether the evidence is admissible. That has nothing to do with confrontation. Confrontation is the right of the accused to have the witness brought to court, come forward before the jury; testify as to his facts AND be subject to cross examination, (see Crawford v Washington, 541 U.S. 36 (2004), in which Justice Scalia, writing for the majority discussed the problems inherent with a lack of confrontation using the trial of Sir Walter Raleigh as an example). The day after a fierce winter storm greeted Lansing the Supreme Court conducted a public hearing on several proposed court rules and amendments to existing rules. No one spoke in favor of MCR 6.202 although the court had before it many responses regarding the proposal. It seems that in this age of austerity that it may be better to hold off on adopting the rule as written as opposed to rushing to create a "notice and demand" regime as specified in this proposed rule that is ultimately declared unconstitutional by the nation's highest court. Mike Nichols is an adjunct law professor and author of The Michigan OWI Handbook by Thomson Reuters West Publishing; the 2011-2012 update is now available. He is a member of the National College for DUI Defense and recently was accepted to present at the annual conference for the American Academy of Forensic Science in February, 2012. His office is in East Lansing. mnichols@ nicholslaw.net Published: Mon, Dec 12, 2011