Sex offender affidavit implicates Confrontation Clause

A Gloucester General District judge ruled today that use of an affidavit to establish that a sex offender did not register as required by state law violates the Confrontation Clause of the U.S. Constitution.

Under Virginia Code § 18.2-472.1(D), a Virginia State Police affidavit of the defendant’s history of registration as a sex offender is prima facie evidence that he has failed to register or reregister. The affidavit must be provided to the defendant or his attorney seven days before a hearing or trial.

In the case today, Gloucester attorney Will Moore contended that such evidence is testimonial under Crawford v. Washington, 541 U.S. 36 (2004), and that the defendant had no opportunity to challenge its basis.

Judge R. Bruce Long agreed and refused to consider the affidavit.