In State v. Triosi, 2010-Ohio-275 [PDF], the Ohio Supreme Court affirmed the vacation of a conviction for trademark counterfeiting because the prosecution failed to establish that the trademarks allegedly being counterfeited were registered with the US Patent and Trademark Office, as required by R.C. 2913.34(A)(4).
Instead, the prosecution witness — a police officer who was also “trained by several purse and jewelry companies to recognize their trademarks and to recognize counterfeit products” — merely testified that in his opinion the items seized were counterfeit. He also testified that through his “training and experience” he was aware that the trademarks were on the principal register of the USPTO, but he admitted that he had never seen any registration documents. A five-member majority of the court held that this testimony was insufficient to prove beyond a reasonable doubt that the marks were on the principal register. Although the majority doesn’t say so, in effect the holding is that the testimony about registration is hearsay–the companies who owned the marks told the officer that they were registered, and the officer told the court. When viewed in that light, it’s classic hearsay under Evid. Rule 801.
And yet, two justices dissented, arguing instead that the victims are most likely to know which marks were counterfeited, and the fact that the officer was trained by victims qualifies him as an expert with capacity to testify about the registration.
The dissent’s approach strikes me as somewhat similar to the practice rejected by the Supreme Court of the United States in Melendez-Diaz v. Massachusetts. In that case, the Court held that the prosecution may not introduce a forensic report at trial without making the report’s author available to testify (or to be otherwise cross-examined by the defendant). What the dissent in Triosi would allow is something of the complement to what was rejected in Melendez-Diaz — whereas Melendez-Diaz prohibited admitting the documentation without the foundation testimony of the witness, the Triosi dissent would allow the testimony of the witness without the foundation documents.
(For what it’s worth, there was some sentiment in Sixth Amendment circles that Melendez-Diaz, however young it may be, was not long for the world when Justice Sotomayor joined the Court; she was seen as a possible fifth vote to overturn Melendez-Diaz, and the case of Briscoe v. Virginia — which was already on the Court’s docket for OT09 when Justice Sotomayor took the bench — was seen as a possible vehicle to do so. Briscoe was fully briefed, but on January 25 of this year — just two weeks after argument — the Court issued a one-sentence per curiam decision vacating and remanding in light of Melendez-Diaz.)
This post was written by Jeffrey M. Nye.
