Harris v. Commonwealth – August 4, 2009

Harris contends the trial court erred by admitting a Virginia State Police affidavit as evidence that he failed to register with the Virginia Sex Offender Registry, arguing the affidavit was testimonial hearsay and that he was not permitted to confront the affiant, the custodian of records.

In a published opinion, the CAV concluded that the affidavit was non-testimonial, because it “was prepared in a non-adversarial setting, and is not ‘accusatory.’ The affiant simply generated the document from objective facts already in existence. The sex offender registry is a ‘neutral repository of information that reflects the objective results of a search of public records.’”

Steve Emmert provided analysis of the CAV published opinion at virginia-appeals.com.

From
The Court of Appeals of Virginia (published opinion)

Counsel
Jessica M. Bulos (Office of the Appellate Defender) for appellant.

Robert F. McDonnell and Alice T. Armstrong (Office of the Attorney General) for appellee.

Assignments of Error

1. The Court of Appeals erred by holding that admission of the Virginia State Police affidavit, pursuant to Code § 18.2-472.1(D), did not violate Mr. Harris’s Sixth Amendment right to confrontation because the affidavit was non-testimonial.

2. The trial court and Court of Appeals erred by failing to find that admission of the Virginia State Police affidavit, pursuant to Code § 18.2-472.1(D), violated Mr. Harris’s Sixth Amendment right to confrontation.

Date Granted
7-29-2009