Some confrontation clause for you all

This is an interesting habeas corpus ruling that is relegated to the land of summary orders and will not get attention despite its take on a recent Supreme Court ruling on the confrontation clause and criminal prosecutions.

The case is Cook v. Bayle, issued on December 27. The framers of the Constitution did not want people being thrown into the slammer on the basis of eyewitness testimony that the defendants had no opportunity to cross-examine. Hence, the confrontation clause, part of the Sixth Amendment. The Supreme Court lately has shed light on this concept, ruling that the key to this equation is that the evidence must be "testimonial." In those cases, the Court "addressed the meaning of testimonial in the context of laboratory testing of . . . purported narcotics and actual blood for its blood alcohol content."

In this case, the defendant got pulled over and failed four field sobriety tests. The police also used a breathalyzer test that reported his blood alcohol content as .12 percent. During the arresting officer's testimony, the government introduced into evidence records relating to the breathalyzer, establishing it was working properly that night. Defendant has been arguing ever since that these records were "testimonial" and their introduction at trial violated the confrontation clause.

Defendant raises interesting arguments in this habeas case, which did not prevail in the district court. It also fails in the Second Circuit. Habeas corpus petitions will not succeed unless the defendants can show the constitutional violations violated clearly established Supreme Court precedent. You need a case on point from the Court for the habeas petition to prevail. This case does not make it. The Second Circuit (Livingston, Lynch and Rakoff [D.J.]) states,

First, it is not clearly established that all crime lab records are testimonial. Those “created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial” may be introduced at trial without implicating the Confrontation Clause. Nor has the Supreme Court held that records accompanied by signatures and a seal are testimonial by virtue of such formalities. Next, and most significantly, although the records’ creators may have anticipated that they might be used at trial, what matters is the records’ primary purpose. And here, a reasonable court
could conclude that these records had a primary purpose other than to be a substitute for in-court testimony. . . . Exhibits 5, 6, and 12, while relevant to establish that Cook was guilty, were not created for that purpose. When the relevant breathalyzer tests were performed, the primary purpose of the tests was to confirm that the breathalyzer worked, “not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time.” And irrespective of their evidentiary value, crime labs are required by New York State health regulations to create and keep these records.