The Renshaw Court continued in relevant part: Thus, in Berezansky, while discussing Simbara, we noted the Court’s rejection of the argument that a technician’s compliance with the procedures of N.J.S.A. 2C:35-19 was a justification for dispensing with the right of confrontation. This is the identical argument the State makes here. Indeed, as we noted in Berezansky, after a defendant objects to admission of a laboratory certificate, “the statute vanishes as a determinative to and justification for admissibility in evidence of the laboratory certificate.”
In Berezansky, we did not discuss at length whether the testimony of the technician who prepared the BAC report was “testimonial” in nature. In Crawford, the Court’s express holding applied only to “testimonial” evidence: Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law . . . as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of “testimonial.”
In Berezansky we observed, “We need not fill in the definition left open by the Supreme Court to be guided by the Court’s concerns for the right of confrontation as expressed in Crawford.” After Crawford and Berezansky were decided, the United States Supreme Court in Davis v. Washington, as well as another panel of this court in Buda, have identified specific instances where evidence was deemed to be testimonial. For purposes of confrontation clause analysis, relying on Davis, we held in Buda, in the context of a statement given to a DYFS worker, that the statement was testimonial because the ongoing police emergency had ended and the primary purpose of the statement was to establish or prove past events potentially relevant to later criminal prosecution.
Under our rules of evidence, witness “unavailability” includes situations in which the declarant— is exempted from testifying by court ruling, refuses to testify, testifies to not remembering something that they previously claimed to remember, is unable to testify due to death or sickness, or cannot be subpoenaed to testify despite reasonable efforts. An exception to the “death or sickness” scenario exists if it can be proven that the adverse party intentionally caused the death or sickness to prevent the witness from testifying.
