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More on Melendez-Diaz

Over at the Fifth Circuit blog, Brad Bogan has a great post about the effect of Melendez-Diaz on prosecutions for illegal reentry.

The Fifth Circuit, including Texas which is right on the border, has a tremendous caseload of illegal reentry cases. Thus, Melendez-Diaz and its effect on those prosecutions is of intense interest to folks in federal court in that Circuit.

Mr. Bogan rightly points out that Melendez-Diaz is crystal clear about the inadmissibility of a certificate that shows that a record does not exist in a particular file. These certificates have been a mainstay in illegal reentry prosecutions. He sums up:

While the effect of Melendez-Diaz on [certificates of non-existence of records] admissibility is clear, the broader ramifications for illegal reentry prosecutions are not. There’s always the possibility that the Government will still fight to admit a CNR, meaning that you’ll have to litigate the issue. If the Government brings in a witness, you’ll have to be prepared for cross-examination both as to the hearsay-exception predicate and with an eye to a failure-of-proof defense. Of course, all this will take a while to shake out, meaning that the effect of Melendez-Diaz on plea negotiations, the decision whether to go to trial, and client advice is even murkier than its effect on trial practice. In the meantime, anyone handling illegal reentry cases will need to pay close attention to these issues.

I would argue, and, in fact, did, argue that the change is bigger than just illegal reentry (not that I take Mr. Bogan to disagree with that). Felon-in-possession charges, some tax charges, some export act charges, and many other kinds of criminal charges require that someone show that some record does not exist. The proof for all of these charges at trial is now very different.

Think, for example, about an export act charge. A person is charged with shipping to, say, Croatia, some item that requires a license from the United States State Department to ship. The government, therefore, needs to prove that no license was issued. It used to be that a certificate of nonexistence of that record would be enough. Now, it looks like someone from Washington has to go to trial as a government witness. How many such people are there? I don’t know, but it makes the cost of going to trial higher from both a financial and logistical sense.

Mr. Bogan is spot on when he says the law is changing fast. It’s an exciting time to be a lawyer.

If you have questions about how federal criminal charges are different than state criminal charges, please visit this page on Maryland federal criminal charges or Washington DC federal criminal charges.