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Joseph Coupal - Tuesday, April 06, 2010
On April 2, 2010, the Massachusetts Appeals Court decided the case ofCommonwealth v. Dale McMullen. On appeal from his conviction for a fourth offense operating under the influence, Mr. McMullen challenged the use by the prosecution of certified copies of Registry of Motor Vehicles and District Court records to prove that he had been convicted on three previous occasions. McMullen contended that the 2009 United States Supreme Court case of Melendez-Diaz v. Massachusettsshould be interpreted to mean that his constitutional right to confront and cross-examine witnesses was violated by the use of only documents to prove the prior convictions. The Appeals Court disagreed, ruling that the records in question were created for the administration of the entity’s affairs, and not for purposes of proving a fact at trial. Since they were not testimonial in nature, the Sixth Amendment’s confrontation clause was not violated by their admission at the subsequent offense trial. In Massachusetts, individuals convicted of DUI are entitled to a separate trial on the issue of whether they have been previously convicted of the same or similar offense. At the trial, the normal Massachusetts evidentiary standards apply, and the defendant is entitled to have a jury or judge hear the evidence. Since the two Supreme Court cases of Crawford v. Washington and Melendez-Diaz, both of which were favorable rulings for defendants, practitioners were hoping to expand these decisions to DUI cases and require live testimony on the issue of whether defendants had been convicted in the past of the same or similar offenses. Following the Appeals Court’s decision in McMullen, and unless the Massachusetts Supreme Judicial Court rules otherwise, prosecutors will not be required to produce live witnesses in order to prove prior offenses.

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