State v. JEFFERSON, 302 Ga. 435

Five defendants (Brenton Jefferson, Santez Jefferson, Demarcus Cawthorne, Jamal Arnold, Lee Davis) were charged with attempted murder, aggravated battery, kidnapping, and violations of Georgia’s Street Gang Act.
The State sought to introduce four certified convictions of alleged gang members (three third-party convictions and one related to Cawthorne) under OCGA § 16-15-9 to prove the existence of a criminal street gang and gang activity.
OCGA § 16-15-9, as amended, permits the commission, adjudication, or conviction of enumerated offenses by any gang member or associate to be admissible in any trial or proceeding for proving gang existence/activity.
Defendants moved in limine arguing the statute facially violated the Sixth Amendment Confrontation Clause by permitting admission of non-testifying third-party convictions.
The trial court found admission would violate defendants’ confrontation rights (relying on Kirby), declared OCGA § 16-15-9 unconstitutional as applied to third-party non-testifying convictions, and excluded those convictions.
The State appealed; the Georgia Supreme Court affirmed, holding the statute facially unconstitutional to the extent it authorizes admission of non-testifying non-party convictions to prove a gang’s existence.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Appellees)	Held
Whether OCGA § 16-15-9 may admit certified convictions of non-testifying third parties to prove existence of a criminal street gang	The statute validly admits convictions (not barred by hearsay rule) to prove gang existence; amendment intended to avoid OCGA § 24-8-803(22) limits	Admission of non-testifying third-party convictions violates the Sixth Amendment Confrontation Clause; such convictions are testimonial and cannot substitute for cross-examination	The statute is unconstitutional on its face to the extent it authorizes admission of convictions of non-testifying non-parties to prove a gang’s existence; affirmed the trial court
Whether third-party convictions are non-testimonial (e.g., public/business records) and thus admissible without confrontation	Convictions can be treated as non-testimonial or admitted through expert testimony about gang activity	Convictions arise from trials/pleas with testimonial proceedings; they are testimonial when used to establish facts against another defendant and implicate confrontation rights	Court held these convictions are testimonial for Confrontation Clause purposes; expert testimony does not cure the constitutional defect

Kirby v. United States, 174 U.S. 47 (court held admission of third-party convictions to prove an element against another defendant violated the Confrontation Clause)
Crawford v. Washington, 541 U.S. 36 (recognizes testimonial evidence and importance of cross-examination under the Sixth Amendment)
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (public/business-records exception does not automatically render testimony non-testimonial when created for litigation)
Bullcoming v. New Mexico, 564 U.S. 647 (reasoning about when surrogate testimony fails to satisfy confrontation)
Davis v. Washington, 547 U.S. 813 (discusses testimonial statements and cites Kirby approvingly)
United States v. Causevic, 636 F.3d 998 (8th Cir.) (held convictions used to prove facts underlying another defendant’s charged offense are testimonial)