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A Methodological Blunder in Bullcoming?

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Our friend Tim Baughman of the Wayne County Prosecutor's Office (Detroit, MI), posted a comment on the previous post that I think deserves mention on the main page. He says Justice Ginsburg "has something of a blunder in footnote 10," comparing the time lab techs spend in court in Michigan before and after Melendez-Diaz.

A Supreme Court decision banning a particular practice only changes things in those states where the practice is allowed under state law.  For example, one study trying to determine the impact of Mapp v. Ohio compared crime rates before and after Mapp from states that previously allowed illegally seized evidence to those that did not even before Mapp.  The states that already followed the rule the Supreme Court announced are, in effect, the control group.

Tim says (and he's the Michigan expert) that Melendez-Diaz made no difference there.  So if tech testimony rises sharply in states that previously allowed the evidence without confrontation and doesn't in those that did not, that supports the dissent's view, not the majority's.

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Without some applicable exception, introduction of a lab report is just hearsay--without regard to Crawford---unless, as in Massachusetts before Melendez-Diaz, there is a special statute permitting it.

Before Crawford the Michigan Supreme Court unanimously held a lab report inadmissible because it is hearsay, and Michigan has never had any special statute on lab reports (other than for preliminary examinations):

"The laboratory report at issue is, without question, hearsay. MRE 801(c). As such, pursuant to MRE 802, it is not admissible unless it fits within at least one category of the allowable exceptions outlined in MRE 803 and 804. Admissibility was sought under MRE 803(8), which states that even though violative of hearsay rules, public records of “matters observed *413 pursuant to duty imposed by law” are admissible, but that reports containing matters observed by police officers in criminal cases are not. . . .The report at issue, prepared by a police officer, was adversarial. It was destined to establish the identity of the substance-an element of the crime for which defendant was charged . . . .the report cannot be admitted under MRE 803(8)."

People v. McDaniel 469 Mich. 409, 412-413, 670 N.W.2d 659, 661 (Mich.,2003)

Lab reports were not admissible in Michigan without stipulation before Melendez-Diaz, and of course not after. So that lab tech hours did not go up after Melendez-Diaz in Michigan is wholly unremarkable and not relevant to whether that case has caused more lab tech court time in jurisdictions that allowed certificates/affidavits of reports before Melendez-Diaz. This seems an odd mistake to make.

We are going for a "notice and demand" rule.

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