Many readers are disturbed by the fact that he has not been charged with any type of crime or traffic violation for the poor driving. Basic criminal law tells us that to be convicted of a crime where intent is an element, the prosecutor must show that the defendant possessed the intent to commit the crime for which they are charged. Further, the burden of proof and production lays solely on the prosecutor to prove beyond a reasonable doubt that the crime took place and that the intent of the defendant was in fact to commit the crime they are charging.

How could the prosecutor do this regarding a traffic accident with Junior Seau? Do they know that he intentionally ran the car off the cliff? Do they know that he was driving recklessly? Does the prosecutor have any evidence that his car was not up to inspection and kept in the best possible driving manner? Does Junior Seau have a poor driving record? Has he done anything like this before? What evidence is there that his car driving off the cliff was anything more then an accident? What evidence exists that he fell asleep at the wheel? Further, if he did fall asleep at the wheel, what evidence is there that he acted in a reckless, negligent or intentional manner by falling asleep? If he was driving home from the police station from his arrest from the domestic issue, perhaps the police should have let him drive if he had been up all night from the previous arrest? If they think he fell asleep at the wheel because they got a statement from him, was the statement taken legally and can they use that statement against him in the criminal trial?

The prosecutor should ask themselves all of these questions before they decide whether to prosecute anyone for a crime. In this case, the scale clearly tips towards no arrest because the prosecutor will have a very difficult job proving any and all of the above. If this were to happen to any of us regular folks, there would be no questions that no ticket and no arrest is the appropriate response. This is a matter that is only a big deal because the drive of the car is a celebrity.

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Today, the confrontation clause is applied through cross examination in our courts. The defendant hires a lawyer to fight their case and during trial the lawyer gets to confront and cross examine all of the witnesses against the defendant.

In our modern approach the courts have come up with rules for courtrooms and rules for how evidence comes into the courtroom. Sometimes the rules of evidence conflict with the confrontation clause. Legislatures and courts around our country have created rules of evidence that dictate what is allowed in court and what is not allowed. A major rule of evidence is hearsay. Hearsay is an out of court statement, offered for the truth of the matter asserted in court, by a witness other than the person who originally made the statement. Many hearsay exceptions exist that allow lawyers to get in statements that are hearsay, yet meet an exception to the hearsay rules.

For many years, in domestic violence cases, if a victim did not appear in court, but the police officer took a statement from victim, the police officer was allowed to repeat in court what the victim had told the officer so long as the district attorney could show that the statement was taken at a time when the victim was excited or when the victim simply blurted out the statement because he or she presently had the impression of what just occurred on their mind. The officer was allowed to testify as to what the victim said even though the statement was hearsay because the statement fit an exception of hearsay rules as either and excited utterance or a present sense impression.

Whether these exceptions to hearsay violated the confrontation clause was appealed to the Supreme Court of the United States in a case called Crawford V. Washington, 541 U.S. 36 (2004). In Crawford, the Supreme Court ruled that the confrontation clause trumps the rules of evidence and the witness must appear if the statement being sought to be entered by the district attorney is testimonial. How we define testimonial is a difficult question, but I think it means that if the testimony sought goes to the central issue of guilty or innocence, the witness must appear in court because we have the right to confront them. However, the actual definition is whether the statement or document was produced for the purpose of trial.

Recently, the Supreme Court of the United States took this concept one step further. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the Court held that in a narcotics case the lab report showing whether the substance is actually narcotics is a testimonial statement, thereby, if the defendant wants to cross examine the author of the report, the court must allow them to confront that witness and force the DA to produce that witness in court.

Our own Superior Court has recently applied the Melendez-Diaz statement to DUI (Driving Under the Influence) cases in Commonwealth v. Barton-Martin, 2010 PA Super 163. In Barton-Martin, the Superior Court held that in a DUI case, you have the right to confront and cross examine the lab analyst who made the lab results report to show that you were under the influence. The Commonwealth can no longer move the blood report into evidence as a business record exception to hearsay. The rationale is that the blood report in a DUI is central to the DA’s case, so it is testimonial in nature and the right to confront trumps the hearsay exception.

Barton-Martin will certainly help clients who are charged with DUI, where blood was taken and the numbers are borderline whether the person was under the influence where the conclusion section states that no conclusion can be made if the person was unfit to operate a motor vehicle safely absent other evidence. You should now be allowed to question on lab conditions, methodology of testing, training of the lab tech, error margin of the testing procedures to show that the lab results create a reasonable doubt.

The right to confront your accuser still exists.

Often, a defendant should not testify in their case. Some of the reasons the defendant should not testify: the defendant has bad prior crimes that the district attorney may be able to bring out only if the defendant testifies, the defendant is not a good witness, or while the defendant’s story does not inculpate her, but makes her seem guilty.

When you are faced with the situation the best thing to do, is to be prepared for three scenarios during trial. The first is simple, the district attorney uses the statement that was made by the defendant to the police. The second is to ignore the statement all together, so if the district attorney doesn’t use the statement, you are ready to fight the case and never let the jury know the statement was ever made. The third is to prepare for the defendant to testify.

The hardest part is not knowing what will happen and being able to change on the fly. Not having a set game plan is very tough on some clients, but often the most important part of a case.

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