This is the third in a series of entries about the US Constitution's 'confrontation clause'. In May we published a very brief overview and history of the provision, which is found in the Sixth Amendment, and in August we got into the nuts and bolts of Crawford v. Washington, a Supreme Court case that set the stage for today's 'confrontation clause' confrontations.
That decision concluded that "where testimonial evidence is at issue" the Sixth Amendment demands, in its simplest terms, an opportunity for cross-examination. Crawford didn't tell us, though, just what's included in that term 'testimonial', and how 'non-testimonial' hearsay might be treated by individual states.
Which brings us once again to People v. Pealer, a recent decision from New York's highest court, the Court of Appeals.
In our September 5th entry, we addressed a secondary topic noted in Pealer: the fact that driving around with a transparent sticker on your rear window is actually illegal. This time around we'll take a quick look at the primary issue in the case.
Robert Pealer, the defendant, had been charged with driving while intoxicated. How did the People know he was intoxicated? A breathalyzer test. How did they know the breathalyzer was working properly? A 'certificate of calibration', a 'certificate of maintenance records', and a certification of the sample of the simulator solution used in the machine - a rubber stamp, essentially.
Not surprisingly, Mr. Pealer didn't think this was sufficient. He thought he had a right to cross examine the person or persons who prepared those certificates. But he was wrong, according the the Court of Appeals, as we'll see below.