Can the prosecution prove its case using rank hearsay?

On September 5, 2007, the New Hampshire Supreme Court, in a 3-2 decision, upheld the constitutionality of laws that allow the prosecution to use hearsay evidence to prove an essential element in a DWI prosecution.  State v. O'Maley, 156 N.H. 125 (2007).

The Court upheld the constitutionality of a statute that allows the prosecution to use hearsay to prove the accused's guilt of DWI.  Hearsay evidence may be used to show how the blood sample was collected... and hearsay evidence may even be used with respect to the actual testing itself. 

A so-called "certifying scientist," rather than the actual lab analyst who performed the test, may testify regarding the results of blood tests - even if that result is critical to establish guilt or innocence.

The Court rejected the defendant’s claim that such presentation of rank hearsay regarding the collection and testing of his blood sample would violate the federal confrontation clause as interpreted by the United States Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 126 S.Ct. 2266 (2006).

Further, in reaching this result, the Court acknowledged that the hearsay testimony at issue practically amounted to the only evidence of guilt in the case.

Justice James Duggan dissented, suggesting that the issue could be relitigated under the State Constitution, or addressed under the Court’s “supervisory powers."

Last June, however, the United States Supreme Court invalidated similar provisions of Massachusetts law, holding them to violate the accused's fundamental constitutional right to confront the witnesses against her.  Melendez-Diaz v. Commonwealth of Massachusetts (U.S. June 25, 2009)

So, the big question is: will NH courts continue to rely on a badly-reasoned ruling decided by a bare 3-2 majority of the court, in the wake of a landmark decision of the United States Supreme Court that is now the 'law of the land'?

With a new Justice appointed to the Court this month, the time is ripe for the Court to revisit and overrule the O'Maley decision.  Litigators should argue that it was wrongly decided as a matter of State Constitutional law, and at any rate was abrogated by the United States Supreme Court's decision in Melendez-Diaz.  No State can afford its citizens less rights than guaranteed to all citizens across the country by the Supreme Court. 

Stay tuned!  - ted

Posted by Ted Lothstein at 8/25/2009 8:24 PM
Categories: Constitutional Law
Tags: confrontation DWI hearsay united states supreme court new hampshire supreme court
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