The Court continued in relevant part: The State argues that Crawford has no bearing on the admissibility of hospital worker’s certificate because Gallant was not subjected to “police interrogation.” See Davis. That argument is unpersuasive.
For one thing, the Supreme Court specifically recognized in Davis that it should not be implied that “statements made in the absence of any interrogation are necessarily non-testimonial.” In that vein, the Court previously indicated in Crawford that “affidavits” of witnesses are within the “core class” of hearsay declarations likely to be regarded as testimonial. The blood certification here, attested to by Gallant with language certifying that its contents are true and with his recognition that any “willfully false” statements may subject him to punishment, is the functional equivalent of an affidavit in New Jersey practice. See R. 1:4-4(b) (allowing certifications to be utilized in sworn affidavits). Moreover, the blood was drawn and the corresponding certification was prepared at the behest of a police officer, consistent with N.J.S.A. 2A:62A-11. The certification is Gallant’s response to a police inquiry, no less than a stationhouse interviewee’s account given to an interrogating police officer.
The State points to several post-Crawford cases from other jurisdictions treating certain hearsay documents such as laboratory reports, breathalyzer certificates and autopsy reports as non-testimonial. For example, the State relies upon State v. Huu The Cao, a pre-Davis decision in which the North Carolina court formulated a distinction between laboratory reports that are non-testimonial and those which are testimonial. Specifically, Huu The Cao treated as non-testimonial lab reports that are generated from testing that is “mechanical,” and which contain only “objective facts not involving opinions or conclusions drawn by the analyst.” The court contrasted lab reports involving blood alcohol concentrations, for which cross-examination “may not be necessary,” with “fiber or DNA analysis or ballistics comparisons,” which the court perceived to involve more sophisticated technical aspects.
Some other cases have similarly attempted to draw a line between sophisticated or opinion-laden hearsay reports, treating them as “testimonial.” Reciprocally, those cases have deemed “non-testimonial” reports perceived to contain routine technical information, or have otherwise declared certain “business records” utilized in prosecutions as “non-testimonial.”
Given the numerous state courts across the country, it is not surprising that the prosecution could find some with opinions that are at odds with the United States Supreme Court’s Confrontation Clause jurisprudence. The Supreme Court can only review so many cases each term. Some cases that run afoul of its holdings will therefore end up not being reviewed.
