Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
2053 Woodbridge Avenue - Edison, NJ 08817

Sunday, July 31, 2016

Drug Recognition reports should not be introduced into evidence by the court

Drug Recognition reports should not be introduced into evidence by the court
“[Police reports generated by law enforcement officials ... do not qualify as business or public records....”[1]  Although a record like a  Drug Recognition Evaluation DIE may be kept in the ordinary course of certain police business, such reports are “calculated for use essentially in the court, not in the business.”[2]  “Business and public records are generally admissible absent confrontation not because they qualify under an exception to the hearsay rules, but because -- having been created for the administration of an entity's affairs and not for the purpose of establishing or proving some fact at trial -- they are not testimonial.”[3]  But statements like those in a DIE are prepared specifically for use at trial and are subject to confrontation under the Sixth Amendment.[4]
An admission of a report for DIE, would be the admission of hearsay prohibited under N.J.R.E. 802 but also violates Defendant’s right to confront those statements directly and to a fair trial.  To understand this, this Court should recall the distinction the U.S. Supreme Court made between the Confrontation Clause, guaranteeing a defendant the right to be confronted with the witnesses against her, and the Compulsory Process Clause guarantees permitting a defendant the right to call witnesses in her favor.[5]  As discussed below, Defendant questioned the validity of the DRE technique and its scientific underpinnings
Indeed, the State bares that burden and had the obligation to come forward with testimony.   This Court should not permit the DIE to buttress the State’s case with hearsay inappropriately admitted in evidence through a back door. This Court should exclude the DIE.

source: Book: Handling Drug DWI and Serious Motor Vehicle Cases in Municipal Court 2015

 Authors/Speakers: Kenneth Vercammen, Esq., Past Municipal Court Attorney of the Year
John Menzel, Esq., Past Chair Municipal Court Section

[1] Melendez-Diaz v. Massachusetts, supra, slip op. at 10, 129 S.Ct. at 2538. (citation and footnoted material omitted).
[2] Id., quoting Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943).
[3]Melendez-Diaz v. Massachusetts, supra, slip op. at 11, 129 S.Ct. at 2539-40.
[4] Id., slip op. at 11, 129 S.Ct. at 2540.
[5] Melendez-Diaz v. Massachusetts, supra, slip op. at 5, 129 S.Ct. at 2533-34, citing U.S.Const., Amend.VI.
[6] 334 N.J.Super. 530 (App.Div. 2000).sourc
[7] 332 N.J.Super. 564 (Law Div. 2000).

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