Attorney Nycole A. Thompson with BoltNagi PC appealed her client’s conviction for aiding and abetting the unauthorized possession of a firearm. Thompson argued that the trial court’s admission, over her objections, of a certificate of non-existence of record (“CNR”) stating that her client did not have a gun license in District of St. Croix violated her client’s Sixth Amendment right to confront the witnesses against him because the person who prepared the certificate did not testify at trial and her client did not have the previous opportunity to cross-examine the person who prepared the exhibit.
Ms. Thompson successfully made this argument before the United States Court of Appeals for the Third Circuit (“Third Circuit”) in two unrelated cases where the trial court admitted into evidence a CNR and a medical report even though the people who prepared those documents did not appear at trial and the appellants did not have a previous opportunity to cross-examine them.
The Sixth Amendment’s Confrontation Clause gives the accused in all criminal prosecutions the right to be confronted with the witnesses against him. The U.S. Supreme Court has cited Shakespeare’s Richard II and the Acts of the Apostles to denote this right’s very long history. It has even been argued that the right to confrontation was recognized in England long before the right to a jury trial. In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause applied to any individual who “bears testimony” against the accused and described a core class of testimonial statements-which includes affidavits-to which the Confrontation Clause applies. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the U.S. Supreme Court clarified that this rule includes the admission of certificates of analysis utilized by prosecutors to prove the weight and type of seized drugs and the certificates of analysis to CNRs. Subsequently, in Gumbs v. Government of the Virgin Islands, the Third Circuit agreed with the Second, Firth, Ninth, and D.C. Circuits, which held that the Confrontation Clause applies to CNRs because the certificates are offered as substantive evidence against a defendant whose guilt depends on the document’s accuracy.
This issue of a defendant’s right to confront the witnesses against him/her has been the subject of recent U.S. Supreme Court jurisprudence. In Bullcoming v.New Mexico, 131 S.Ct. 2705 (2011), the U.S. Supreme Court stated that the Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made for the purpose of proving a particular fact, through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.