Sunday, March 25, 2007

Nebraska Supreme Court refuses to require wholesale disruption of criminal prosecutions although the some courts have suggested that the cases Crawford v Washington and Davis v Washington required the in court testimony of technical witnesses to give the necessary foundation testimony for breath tests and speed detecting radar guns. State v. Jacobson, S-06-195, 273 Neb. 289, and State v. Fischer, 272 Neb. 963 (2007) In two traffic related appeals this year the Nebraska Supreme Court overruled defendants' objections that the technicians who certified the intoxication and speed detection devices should have appeared to testify that the devices were working properly. Fisher lost when the Supreme Court ruled that the technician's certification of the intoxication devices were not testimonial because the certifications were routine administrative tasks and too attenuated from the prosecution of the charges against Fischer for the statements to be ‘testimonial’ in the sense required under Crawford (Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), Davis (Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006)), The Defendant Jacobsen lost when the Supreme Court agreed with the District Court that the technicians report authenticating the tuning forks and workings of the radar gun were also not testimonial. Fischer is analogous to the Jacobsen's case. Applying the reasoning of statements in the document certifying the accuracy of the tuning forks were nontestimonial. The “Certificate of Calibration and Accuracy” was prepared in the course of the State patrol technician’s routine duties to ensure that the tuning forks used to calibrate and test the radar unit oscillated at the proper speeds. Certification was required annually, whether or not the certification document would eventually be used in a criminal prosecution. The statements contained in the certification document did not pertain to any particular defendant. They were made over 6 months before Jacobson was cited for speeding. Thus, the statements “were too attenuated from the prosecution of the [speedingcharge] against [Jacobson] for the statements to be ‘testimonial.’” Fischer, 272 Neb. at 972, 726 N.W.2d at 183

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