On February 19, 2008, the Court issued decisions in three cases with Crawford issues, two opinions regarding the application of Crawford. In so doing, the Court took a nuanced middle ground regarding the tests to be used in deciding whether evidence is testimonial and is, thus, subject to the confrontation requirements for testimonial evidence set forth in Crawford. The Court also seemed to rewrite a statute to mean what the Court believed the legislature would have intended it to mean, rather than what it actually says. That saves the trouble of the legislature having to actually amend the statute to avoid a perhaps unintended consequence of the statute as written. It also raises the question of why we pay legislators if judges can rewrite statutes.

First, in People v Rawlins and People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), the Court considered two categories of evidence upon which courts throughout the country are split as to how Crawford applies: DNA reports and fingerprints, comparisons.

As the Court had previously done in People v Pacer [6 NY3d 504] the Court rejected the argument that there is a per se business records exception to Crawford, particularly given New York’s definition of the business exception as including police and governmental agencies.

Next the Court rejected the test for testimonial simply being the expectation of the declarant hat the statement would be used in court. Rather the New York Crawford test for testimonial has three primary factors:

we look not only to [1] the interrogator's primary purpose in questioning,
but also, [2] in declarant's view, to the purpose the statement was intended to serve, and to [3] the motivation for the statement.

Other courts have also considered these 3 factors:
1. Was the statement made in circumstances that suggest is likely future use to establish a fact at a criminal prosecution?
2. Was statement similar to that which witness would make on the stand
3. Was the statement made during an investigation and not an ongoing emergency

What happens when you apply the Court’s test?

Fingerprint comparison reports –
In People v Rawlins [37 AD3d 18] the 1st Dept had held that a fingerprint examiner's reports

qualified as nontestimonial business records, and thus did not violate defendant's right of confrontation.

(Rawlins, 37 AD3d 183 [1st Dept 2007]).

Of course, the Court of Appeals, in People v Pacer [6 NY3d 504], had held that the mere fact that a document is a "business record" does not answer the question of whether a document is "testimonial" under Crawford. But the First Department distinguished Pacer as follows:
Unlike the affidavit of mailing in People v Pacer, which the Court of Appeals found to be testimonial notwithstanding the business records exception contained in Crawford,
(1)

the fingerprint examination reports were not prepared for the specific purpose of litigation.

(2)

On the contrary, they were prepared in the regular course of an investigation in progress, at a time when defendant had not yet been arrested.

(3)

Moreover, the reports at issue were introduced through the testimony of a live witness subject to confrontation, albeit not the author of those particular reports.

The question as to whether there is a meaningful distinction between a report prepared for "the specific purpose of litigation" and one made during "an investigation in progress" was answered by the Court of Appeals, when it rejected this reasoning.

Rawlins was a prosecution for a series of burglaries, and the fingerprint examiner's report compared prints lifted at one of the crime scene to the defendant's known prints, and opined that the prints matched. The print comparison was requrested by the police. Regardless of whether the defendant was technically under arrest at that point, what other purpose would the fingerprint examiner's report serve other than to establish perpetrator's guilt at a subsequent trial?

Applying this logic, in Rawlins, the Court of Appeals held that fingerprint comparisons are testimonial and the fact that they are kept in the ordinary course of business of the police is irrelevant.

However, in this cases in which there was live testimony regarding fingerprint comparisons involving some of the other charged burglaries the error in the admission was held to be harmless.

Before discussing the Court's holding in Meekins decided in th same opiion with Rawlins it it worth mentioning the Court's other decision involving fingerprints and Crawford, decided the same day as Rawlins.

In People v Leon ( __ NY3d __, 2008 WL 420022, 2008 N.Y. Slip Op. 01421, 2/19/2008), the Court held that Crawford does not apply to the admission fo fingerprint comparisons at predicate sentencing procedures despite the language of CPL 400.15(7)(a) that the evidence at such hearing be subject to "the rules applicable to a trial of the issue of guilt." The Court explained that

[b]efore Crawford, there was little doubt that affidavits based on fingerprint comparisons were admissible at predicate sentencing hearings (see CPL 60.60[2]; CPLR 4520)...To agree with defendant's broad construction of section 400.15(7)(a) is to presume too much of the Legislature's intent, given the timing of the enactment of section 60.60(2). Testimonial hearsay under section 60.60(2) continued to be admitted after the passage of section 400.15, both at trial and at predicate felony hearings (although Crawford now places new restrictions at trial). Because, in our view, Crawford does not apply at sentencing proceedings, we decline to construe section 400.15 along with other hearsay statutes, which have always operated in tandem, in a way that yields unworkable results.

So, rather than hold that the statute must be interpreted to mean what its unambiguously language states and to suggest to the legislature that it might want to consder amending the provision to exclude fingerprint records at sentencing, the Court effectively held that we will just pretend the statute was written to mean what the legislature probably wanted it to say.

By the way the Fourth Department had applied the statute as written and held that fingerprint affidavits at predicate hearings are inadmissible under Crawford (see People v Williams [30 AD3d 980]). Oh well.

The other Crawford case decided by the Court of Appeals, in the same opinion as Rawlins, was People v Meekins ( __ NY3d__. 2008 WL 423397, 2008 N.Y. Slip Op. 01420, 2/19/2008), in which the Court held that DNA profiles, as opposed to DNA comparisons, are not testimonial. The Court explained

the testing and procedures employed in this case were "neither discretionary nor based on opinion" nor did they concern the exercise of fallible human judgment over questions of cause and effect. This is not to say that errors could not have been made in the testing procedure itself. But those errors, if any, are not the product of "testimony" as we understand that term. Because the Gene Screen technicians only contemporaneously recPeople v Williamsorded the procedures employed and "state[d] the results of a well-recognized scientific test" (id.) — for the purpose, we note, of permitting subsequent reviewers to verify their work — a supervising witness under oath familiar with the laboratory's requirements pursuant to rigid accreditation could illuminate on cross examination whether protocol was followed. Further, it is of no moment that the Gene Screen technicians knew or had every reason to know (because they were working on a rape kit) that their findings could generate results that could later be used at trial, nor that Gene Screen was performing work for law enforcement. Neither the prosecution nor law enforcement could have influenced the outcome; the government's involvement is inconsequential. Finally, the documents prepared by the Gene Screen technicians were not directly accusatory; none of them compared the DNA profile they generated to defendant's.

Thus, the Court distinguished between DNA comparisons and the testing which produces the DNA profiles. How persuasive is this reasoning? Why wouldn't errors in the preparation of the profile be testimonial and thus necessarily subject to confrontation. As the Court noted, this issue has divided Courts in other jurisdictions. But unless and until the United States Supreme Court holds otherwise, this is the law now in New York.