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Criminal Defense: How Do You Confront A Piece Of Paper?

The "confrontation" referred to is the right guaranteed in the Sixth Amendment's Confrontation Clause. This guarantees that anyone charged with a crime be "confronted with the witnesses against him." While this may seem obvious in some situations, such as when someone is not physically present, things are not always so clear.

Although the Confrontation Clause has been around since the Bill of Rights was passed, a major shift in how it is applied occurred in 2004. In the case of Crawford v. Washington, the U.S. Supreme Court decided that "testimonial" statements are admissible only if the person who said them is unavailable and the accused had an earlier opportunity to cross-examine them (there is, of course, an exception where it can be shown that the accused caused the unavailability).

What is "testimonial"?

A problem arose from the fact that the Court did not define what "testimonial" means. The Court began to solve this in 2006 in Davis v. Washington. There, the Court ruled that a statement to 911 operators was not testimonial because it was made for the purpose of resolving an emergency, not as part of a police investigation.

This last point has become increasingly significant. In 2009, the Court ruled in Melendez-Diaz v. Massachusetts that certificates of analysis in a drug case were testimonial: they were created for the purpose of prosecution, and the analysts who created them knew this. In addition, the Court noted that they were functionally the same as in-court testimony. In a similar case, Bullcoming v. New Mexico, from 2011, the Court ruled for the same reason that an analyst other than the one who prepared a blood-alcohol report could not testify without violating the accused's right to confrontation.

Iowa v. Kennedy

One place where this comes up in Iowa law is the certified abstracts of someone's driving record. The Iowa Supreme Court recently considered whether the admission of these documents violated the Sixth Amendment in the case of Iowa v. Kennedy, and ultimately concluded that it did not. The records were a summary of information that the government held anyway, since the Iowa Department of Transportation maintains driving records for anyone with a license.

On the other hand, an affidavit of mailing, which demonstrates when the Department of Transportation mailed someone a notice of suspension, is testimonial. In the same case, the Iowa Supreme Court noted that these records were created for the sole purpose of showing that a specific defendant knew that his license had been revoked. Since they were created for the purposes of a criminal trial, they are testimonial for the purposes of the Sixth Amendment and thus the defendant had a right to confront the person who prepared them.

Effect of a violation of the Confrontation Clause

This does not mean that someone's sentence is automatically thrown out where the Confrontation Clause was violated. Instead, the court must decide whether that was a basis for the jury's decision. If the state can prove beyond a reasonable doubt that the violation had no effect on the verdict, then the sentence will be upheld in spite of the Sixth Amendment issue. This is evaluated on a case-by-case basis, and the court must try to determine how the jury reached the conclusion that it did.

As you can see, there are many layers to the constitutional rights we often take for granted. If you have been charged with a crime, it is important that you seek out qualified representation as soon as possible to ensure your rights are protected.

  • The Iowa State Bar Association
  • DUI Defense Law
  • AAJ
  • Iowa Association of Justice

Keegan, Tindal, & Mason 

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  • J. Dean Keegan
  • Eric D. Tindal
  • Andrea D. Mason
  • J. Dean Keegan J. Dean Keegan


    Decades of Award-Winning Legal Service J. Dean Keegan was born and raised in Waterloo, Iowa. After high school, Dean served ...
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  • Eric D. Tindal Eric D. Tindal


    Highly Rated Criminal Defense in Iowa City Eric D. Tindal, attorney at Keegan, Tindal & Mason, graduated from the University ...
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  • Andrea D. Mason Andrea D. Mason


    Experienced Criminal Defense in the Iowa and Illinois Quad Cities Andrea D. Mason practices in the areas of white collar ...
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  • Operating While Intoxicated Record Expunged

    Johnson OWCR106890. Attorney Dean Keegan's client received an Operating While Intoxicated, a serious misdemeanor. After reviewing the videos, Mr. Keegan filed a Motion to Suppress arguing the officer denied his client's right to make a phone call. The State declined to present testimony at the hearing and the Motion to Suppress was granted, making the client eligible for a deferred judgment. Mr. Keegan's client will have her record expunged and be able to obtain a license after 90 days instead of 180.

  • Drug Charge Charge Dismissed

    Johnson County No. OWCR039210, Iowa City, Iowa. Attorney J. Dean Keegan conducted a three-day long suppression hearing which presented the first challenge to the "Drug Recognition Protocols" used in Iowa.

  • Embezzlement No Criminal Charges Filed

    Cedar Rapids, Linn County, Iowa. An employee of a Cedar Rapids business accused of embezzling six million dollars was not charged criminally after the County Attorney agreed to abide by an agreement negotiated by Attorneys J. Dean Keegan and Jerald Kinnamon in which the accused would pay two million dollars to the company.

  • Vehicular Homicide Charge Dismissed

    Johnson County No. FECR058630- Iowa City, Iowa. Attorneys J. Dean Keegan and Jerald W. Kinnamon successfully challenged the withdrawal of blood from a Defendant without his permission after a rollover accident in which a passenger in the vehicle was killed.

  • Vehicular Homicide Charge Dismissed

    Muscatine County No. FECR03718 - Muscatine, Iowa. If convicted of the vehicular homicide while intoxicated, as alleged in this case, the Defendant would have faced the possibility of a 25-year prison sentence, 17 years of which would have to be served before he would be eligible for parole. Following the depositions of the investigating officer and consultation with an accident reconstruction expert, Attorneys J. Dean Keegan and Jerry Kinnamon negotiated the dismissal of Vehicular Homicide as part of a plea

  • OWI Charge Dismissed

    Johnson County No. OWCR083001 - Iowa City, Iowa. Attorney J. Dean Keegan alleged that the Defendant's rights to contact a lawyer or family member may have been violated after his arrest. He requested video of the breath test from the arresting officer to support his allegation. When the officer failed to produce the video evidence in response written requests, a subpoena, and a Motion to Compel, the State conceded the issue and dismissed the offense.

  • OWI Acquittal at Jury Trial

    Johnson County No. OWCR077717- Iowa City, Iowa. Acquittal at jury trial of a defendant accused of Operating While Intoxicated who refused a breath alcohol test. Tried by Attorney J, Dean Keegan.

  • OWI Case Overturned

    State v. Hornik, Segura, et. al.Iowa City, Johnson County, Iowa. When the state of Iowa established that the Datamaster breath testing machine could be used to test subjects being investigated for OWI, it failed to establish a protocol for its proper use. Attorney J. Dean Keegan, in conjunction with the Johnson County Public Defender's Office, mounted a challenge to the use of the machine based on the lack of uniform instructions for its operation.

  • Zero Tolerance Driver's License Revocation Zero Tolerance Driver's License Revocation Overt

    Iowa Dept. of Inspection and Appeals Docket No. 08DOTOW3937. Attorney J. Dean Keegan successfully challenged a "Zero Tolerance" license revocation on the basis that the officer had failed to allow the driver to contact a family member or attorney for legal advice before submitting to the test.

  • OWI 2nd Offense Charge Dismissed

    Muscatine County No. OWCR040280 - Muscatine, Iowa. After Attorney Dean Keegan scheduled the deposition of the State's expert witness in this case, he learned that the breath test was inappropriately administered by the arresting officer. The State dismissed the offense outright and agreed that the breath test result should be inadmissible so the Defendant would not face the proposed one-year administrative revocation of her driver's license.


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