You Can’t Cross Examine A Map!

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Drug free zone (pd)In a case decided earlier last week, State v. Wilson, the New Jersey Supreme Court answered an interesting Constitutional Law question: Whether the admission into evidence of a map showing the designated 500-foot  "drug free zone" around a public park violated an accused's right, under both the U.S. Constitution and New Jersey Constitution, to be "confronted with the witnesses against him." The court held that maps like this do not violate the Confrontation Clause and, if properly authenticated, are admissible. The problem in Wilson, however, was that the map was not properly authenticated as a public record, therefore it was inadmissible hearsay. 

The Sixth Amendment to the U.S. Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The New Jersey Constitution contains an almost identical provision. "The Confrontation Clause affords a procedural guarantee that the reliability of evidence will be tested 'in a particular manner' through the crucible of cross-examination." As interpreted by the U.S. Supreme Court, the Confrontation Clause provides that a "testimonial statement against a defendant by a non-testifying witness is inadmissible . . . unless the witness is unavailable and the defendant had a prior opportunity to cross-examine him or her." The threshold issue, therefore, is whether a statement is "testimonial."

The U.S. Supreme Court has "labored to flesh out what it means for a statement to be 'testimonial.'" It eventually arrived at the "primary purpose" test, which asks whether a statement has the primary purpose of "establishing or proving past events potentially relevant to a later criminal prosecution." If it does, then it is testimonial. If not, then it is not. For example, the U.S. Supreme Court has held that statements made to police to assist them in responding to an "ongoing emergency," rather than to create a record for a future prosecution, are not testimonial. 

The New Jersey Supreme Court has wrestled with this "primary purpose" test as well. For example, in one case, police sent a defendant's blood to a private laboratory after a fatal car crash. Approximately 14 analysts performed a variety of tests on the blood. A supervisor at the lab then wrote a report concluding that the defendant's blood contained traces of cocaine and other drugs and that this "would have caused the defendant to be impaired an unfit to operate a motor vehicle." The State sought to admit the report, or statements from it, into evidence. The court refused, holding that the report was testimonial because its primary purpose was to "serve as a direct accusation against the defendant." Similarly, the court held, in a separate case, that the statements in an autopsy report were testimonial because the autopsy was conducted after a homicide investigation had begun, after the defendant was a suspect, and after he had spoken to police, and because the autopsy was conducted in the presence of the lead State investigator. Thus, the court held, the "primary purpose of the report was to establish facts for later use in the prosecution."

The New Jersey Supreme Court has also dealt with the "primary purpose" test in connection with so-called foundational documents. In one case, it held that the printout from an Alcotest machine (which measures a person's blood alcohol level) was admissible as a business record. The printout was not testimonial because (1) it presents a present, not past, piece of information, (2) is the product of an objective test (i.e., the operator of the machine cannot influence the machine's evaluation); and (3) "although the officer may have a purpose of establishing evidence of a BAC in excess of the permissible limit, the machine has no such intent and may as likely generate a result that exonerates the test subject as convicts him or her."

In Wilson, defendant was convicted of violating a New Jersey law that makes it illegal to deal drugs within 500 feet of a public park. As part of its case against defendant, the State relied upon a map that illustrated, with a circle, a 500-foot radius around the park near which defendant was observed allegedly selling crack. The same New Jersey statute that makes selling drugs within 500-feet of a public park illegal also allows municipalities to create maps "for the purpose of depicting the location and boundaries of . . . the area in or within 500 feet of a public park" and then use those maps to prosecute individuals accused of violating the law. In Wilson, the State offered the map along with an affidavit from an assistant prosecutor who had, many years before, worked with the third party that produced the "master notebook" of drug-free-zone maps, in which the map the State sought to introduce resided. The State also offered a resolution, passed in 1999, allowing the municipality to adopt the master notebook. The resolution stated that the purpose of creating the maps was to use them in criminal prosecutions.

When the State attempted to move the map into evidence, defendant objected, arguing that the introduction of the map violated, among other things, his right to confront witnesses. The trial court admitted the map into evidence over his objection. Defendant appealed but the Appellate Division affirmed, holding that the map was not testimonial and that its admission did not violate defendant's confrontation rights. Defendant appealed again.

The New Jersey Supreme Court agreed with the Appellate Division that the map was not testimonial. The court acknowledged that the map was created to be used against those charged with violating a crime, and that "documents prepared for use in a prosecution are generally testimonial," but held that the map's other characteristics rendered it not testimonial. For example: (1) the map created a "rebuttable presumption of the proximity of the alleged drug transaction to the park," but did not "conclusively establish defendant's guilt;" (2) the map was "an objective measurement that require[d] no independent interpretation of raw data," unlike the forensic report discussed above; (3) the map reported a present fact, not  past fact to be used against defendant; (4) the map was neutral, like the report from the Alcotest machine, because it "may establish a rebuttable presumption of proximity to the public park just as it may exonerate a person;" and (5) the map was not created in response to a criminal event. For these reasons, the Supreme Court held that the map was not testimonial, and therefore its admission did not violate the Confrontation Clause.

But, the Supreme Court held that the map was nonetheless inadmissible because it was hearsay. The court observed that it might qualify as a public record, one of the exceptions to the hearsay rule, but that the State had not properly authenticated it as a public record. To do so, the State would have had to have produced a witness who could testify to its authenticity and be "cross-examined on the methodology of the map's creation and its margin of error." Because the State did not do that, the map was inadmissible, and the Supreme Court was "constrained to reverse defendant's conviction for, and to remand for a new trial on the charge of," violating the law against dealing drugs within 500 feet of a public park.  In doing so, the Supreme Court also established procedures to be used at defendant's retrial and in all other prosecution under that same law. These rules require the State to give notice to the defense, 30 days before trial, if it intends to rely on a map like the one in Wilson. If the defense objects to the map within 10 days, then the State will be required to produce an authenticating witness. If there is no objection, then the map may be admitted without such a witness.

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