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The Right to Confront and Cross-Examine Witness Testimony in Massachusetts: Motor Vehicle Offenses after Commonwealth v. Parenteau

If you have been charged with a motor vehicle offense or crime in Massachusetts such as driving a motor vehicle after your driver’s license right to drive in Massachusetts had been suspended or revoked, the Commonwealth must prove certain facts beyond a reasonable doubt in order to convict you. You must have operated a motor vehicle at a time of when your driver’s license had been revoked or suspended. Finally, you must have received notice from the Massachusetts Registry of Motor Vehicles that your license or right to drive in Massachusetts had been or was about to be suspended or revoked. However, how does a defendant challenge whether or not notice was sent as required? Under the existing law, notice is established primarily by documentary evidence not subject to a defendant’s right to confront and cross examine. How do you to question a document? The recently decided case of Commonwealth v. Parenteau has further clarified the issue of whether or not the government needs to subpoena live witness testimony to prove that someone received notice that their license was about to be suspended or revoked and this change may now benefit the defendant.

Upon the suspension or revocation of your license or right to operate, the Registrar is required to send you written notice to your address as appearing on Registry records, or to your last and usual residence. G.L. c. 90, § 22(d). This notice requirement is usually proven through a certified document from the Registry of Motor Vehicles that they sent a required letter to you explaining that your right to operate would be suspended or revoked by, for example, operating under the influence or by having an outstanding warrant in any Massachusetts court. The Commonwealth is not required to prove that you had actual, personal knowledge of the contents of this notice, however, the judge or jury may consider a properly attested copy of the official record of the Registry of Motor Vehicles as sufficient evidence that your license was suspended, and that they properly notified you.

In a motor vehicle offense case, the Commonwealth must prove receipt either of notice of actual suspension or notice of intent to suspend per the decision of Commonwealth v. Crosscup, 369 Mass. 228, 231 & n.2,339 N.E.2d 731, 734 & n.2 (1975), and the defendant must be permitted to offer evidence of non-receipt (See Commonwealth v. Crosscup, 369 Mass. at 240, 339 N.E.2d at 739. Prior to the Parenteau decision, the Registrar’s proper mailing of a letter was prima facie evidence of receipt by the addressee. Id., 369 Mass. at 239-240, 339 N.E.2d at 738-739. This documentation from the Registry, if properly certified, is usually admitted in evidence against a defendant without the need for live witness testimony from the Registry. Defendants have objected in the past but until the Parenteau case judges in the Commonwealth did not see a violation of the Sixth Amendment right to confront and cross-examine a witness from the Registry to challenge such documentation. The law has now changed as a result of the ruling in the Parenteau.

In Commonwealth v. Parenteau, the Supreme Judicial Court of Massachusetts considered whether a District Court judge erred by admitting in evidence, pursuant to G. L. c. 90, § 22 (d),(1) a certificate from the registry of motor vehicles (registry) attesting to the fact that a notice of license suspension or revocation was mailed to the defendant. The SJC concluded that the admission of the certificate violated the defendant’s rights of confrontation and cross-examination under the Sixth Amendment to the United States Constitution.

In this case, the defendant was arrested for violating G. L. c. 90, § 23,(6) by operating a motor vehicle after his license had been revoked pursuant to G. L. c. 90, § 24 (1) (a) (1), for operating under the influence of intoxicating liquor. The case proceeded to a jury trial and the defendant filed a motion in limine to exclude documentary evidence from the Registry in the event that such evidence was not supported by witness testimony at trial on the ground that admission of the documentary evidence violated the defendant’s right to confrontation under the Sixth Amendment. The trial judge denied the motion. Later, the Commonwealth introduced a certificate from the Registry on which appeared a stamp certifying that notice was sent to the defendant that his license was revoked on a certain date. Ultimately, the jury found the defendant guilty of operating a motor vehicle after his license had been revoked for operating while under the influence of intoxicating liquor.

On appeal, the defendant argued that the admission in evidence of the registry certificate, in the absence of testimony from a registry witness, violated his right to confrontation under the Sixth Amendment. The defendant contended that the certificate was created exclusively for trial so the Commonwealth could prove a fact necessary to convict him, namely, that he had been notified of the long-term revocation of his driver’s license. Because he challenged the notice, the defendant asserted that any attested document that served as evidence to the contrary was a testimonial statement that should have been subject to cross-examination. The court agreed with the defendant and ruled that the Commonwealth must prove every element of a crime beyond a reasonable doubt.

The SJC noted that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” The court recognized the importance of the prior holding in Crawford v. Washington, 541 U.S. 36, 59 (2004) (Crawford), that the United States Supreme Court affirmed that the out-of-court “[t]estimonial” statements of a witness are inadmissible at trial except where the witness is unavailable and the defendant had a prior opportunity for cross-examination.

More recently, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531-2532 (2009) (Melendez-Diaz), the Supreme Court held that certificates of forensic analysis stating that material seized by the police was cocaine were “affidavits” that fell within the core class of testimonial statements covered by the confrontation clause. Therefore, the admission of such certificates in drug crimes in the absence of testimony from the analysts, or in the absence of a showing that the analysts were unable to testify at trial and that the defendant had been afforded a prior opportunity to cross-examine them, violated the defendant’s Sixth Amendment right to confrontation. The Parenteau case applies this logic to the Registry documentation used in motor vehicle offense cases.

In the Parenteau case, the SJC concluded that the admission of the registry certificate was not harmless beyond a reasonable doubt. Therefore, the certificate, admitted in violation of the Defendant’s Sixth Amendment right to confrontation, was the only evidence presented by the Commonwealth to establish that notice was mailed to the defendant. Absent the certificate, the Commonwealth would not have been able to satisfy its burden of proving every element of the charged crime beyond a reasonable doubt.

The lesson of the case is that where the Commonwealth does not have live testimony from the Registry or where there is no indication that the notice requirement was satisfied through the business records exception to hearsay evidence, cases such as these should be dismissed by the court due to failure to prove a necessary element of the crime charged.

The Law Office of Patrick J. Murphy, Esq. can provide quality legal representation utilizing the most recent cases in criminal law for the benefit of those individuals charged with motor vehicle offenses or motor vehicle crimes. Our Boston criminal law office is located at 11 Beacon Street, Suite 1210, Boston, MA 02109. You may contact Attorney Murphy by telephone at (617) 367-0450.