Cases to object to lab reports in DWI blood and urine cases
In criminal cases, the State routinely retains scientists and analysts
to perform tests on a suspect’s blood to detect the presence of drugs or
alcohol.
The Sixth Amendment’s Confrontation Clause generally
bars the admission of an absent witness’s out-of-court testimonial hearsay as a
substitute for live in-court testimony when the accused has not had the
opportunity to cross-examine the absent witness. Crawford
v. Washington, 541 U.S. 36, 50-62,
124 S. Ct. 1354, 1363-71, 158 L. Ed. 2d 177, 192-99 (2004).
The purpose of the Confrontation Clause is not to foster expedient
trial procedures, but to ensure that testimonial evidence is tested in the
crucible of cross-examination -- however time consuming or difficult that
process may be. See Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed.
2d at 199. Thus, chemical analysts who provide out-of-court “testimony” through
laboratory reports must be made available for cross-examination. Bullcoming, supra,
564 U.S. at ___, 131 S. Ct. at 2716, 180 L. Ed.
2d at 622.
Curtailing
confrontation rights is not the answer to the uncertainty in federal
jurisprudence.
The admission of testimonial statements from witnesses absent from
trial violates the Sixth Amendment’s
Confrontation Clause unless the witnesses are “unavailable,” and “the defendant
has had a prior opportunity to cross-examine” them. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed.
2d at 197. A statement is “testimonial” if the primary purpose of making the
statement is to establish a fact as evidence in a later criminal prosecution. Bullcoming, supra,
564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d at 620 n.6 (quoting Davis
v. Washington, 547 U.S. 813, 822, 126
S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).
Applying that test
in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S. Ct. 2527, 2532, 174 L. Ed.
2d 314, 321 (2009), the Court held that a laboratory report identifying a
substance as cocaine was testimonial evidence and therefore its admission at
trial, without the testimony of the analyst who prepared it, violated the Sixth Amendment’s Confrontation Clause. The report
in Melendez-Diaz was created for the specific
purpose of serving “as evidence in a criminal proceeding.” Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2709, 180 L. Ed.
2d at 615.
Bullcoming presented a
variation of the theme in Melendez-Diaz. In Bullcoming, the Court
held that the in-court testimony of a scientist who did not conduct or
participate in any laboratory tests relevant to the case, but who read into
evidence the actual analyst’s test results contained in a certified report,
violated the Confrontation Clause. Id. at ___, 131 S. Ct. at
2713, 180 L. Ed. 2d at 619.
In Bullcoming, the defendant was arrested for driving while
intoxicated (DWI). Id. at ___, 131 S. Ct. at 2710, 180 L. Ed.
2d at 616. A blood sample was taken from him at a hospital and submitted for
testing at a state laboratory. Ibid. A forensic analyst operated a gas
chromatograph machine to test Bullcoming’s blood sample and determined his
blood alcohol content (BAC). Id. at ___, 131 S. Ct. at 2711, 180 L.
Ed. 2d at 617. The Supreme Court made the following observations about the
operation of the gas chromatograph machine: “‘[T]he analyst must be aware of,
and adhere to, good analytical practices and understand what is being done and
why.’” Id. at ___ n.1, 131 S. Ct. at 2711 n.1, 180 L. Ed.
2d at 617 n.1 (quoting David T. Stafford, Chromatography, in Principles
of Forensic Toxicology 92, 114 (B. Levine ed., 2d ed. 2006)). Although the
gas chromatograph machine produces a printed graph, securing “an accurate BAC
measurement . . . is not so simple or certain.” Ibid.
The forensic analyst determined that Bullcoming’s BAC was 0.21, a level
sufficient to support a conviction for aggravated DWI. Id. at ___, 131 S.
Ct. at 2711, 180 L. Ed. 2d at 617–18. The analyst was not called as
a witness at Bullcoming’s trial. Id. at ___, 131 S. Ct. at
2711–12, 180 L. Ed. 2d at 618. Instead, the State called Gerasimos
Razatos, a scientist also qualified as an expert in the gas chromatograph
machine but who did not participate in testing Bullcoming’s blood. Id.
at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave
“live, in-court testimony” about laboratory procedures, the machine’s
operation, and the results of the BAC test. Id. at ___, 131 S. Ct.
at 2713, 180 L. Ed. 2d at 619. In addition, the analyst’s report was
admitted as a business record. Id. at ___, 131 S. Ct. at 2712,
180 L. Ed. 2d at 618.
The United States
Supreme Court held that Razatos’s surrogate testimony violated the
Confrontation Clause because Bullcoming did not have the opportunity to
cross-examine the forensic analyst who tested his blood. Id. at ___, 131
S. Ct. at 2713, 180 L. Ed. 2d at 619. According to the Court, the
surrogate expert’s testimony “could not convey what [the forensic analyst] knew
or observed about the events his [laboratory report] concerned, i.e., the
particular test and testing process he employed. Nor could such surrogate
testimony expose any lapses or lies on the certifying analyst’s part.” Id.
at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Indeed, at
trial, Razatos admitted that “‘you don’t know unless you actually observe the
analysis that someone else conducts, whether they followed the protocol in
every instance.’” Id. at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L.
Ed. 2d at 622 n.8 (alteration in original). Razatos, moreover, was unable
to testify why the forensic analyst was on unpaid leave. Id. at ___, 131
S. Ct. at 2715, 180 L. Ed. 2d at 622. Thus, the defense could not
ask “questions designed to reveal whether incompetence, evasiveness, or
dishonesty accounted for [the forensic analyst’s] removal from his work
station.” Ibid.
The Supreme Court
reached conclusions relevant to the facts before the court. First, “the
comparative reliability of an analyst’s testimonial report drawn from
machine-produced data does not overcome the Sixth Amendment bar.” Id. at
___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 621. Second, the
analysts who write reports that the prosecution introduces must be made
available for confrontation even if they possess “‘the scientific acumen of
Mme. Curie and the veracity of Mother Teresa.’” Ibid. (quoting Melendez-Diaz,
supra, 557 U.S. at 319 n.6, 129 S. Ct. at 2537 n.6, 174 L.
Ed. 2d at 327 n.6).
In her concurring opinion, Justice Sotomayor noted that Bullcoming
would have been “a different case if, for example, a supervisor who observed an
analyst conducting a test testified about the results or a report about such
results.” Id. at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at
629. Razatos did not observe the testing of the forensic analyst. Ibid.
B.
In Williams v. Illinois, supra, the Court divided over
the question of whether a DNA profile, prepared by a specialist who did not
testify, was offered for the truth of its contents. 567 U.S. at ___,
___, 132 S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99, 108
(plurality opinion). No justice in Williams
suggested that passing testimonial statements offered for their truth through a
surrogate witness would be acceptable under the Confrontation Clause.
See State v. O’Neill, 193 N.J. 148, 175
(2007) (affording protections to accused under state law when “[t]he shifting
sands of federal jurisprudence provide no certainty concerning the standard
that might apply to the next set of slightly different facts”). Cautious
prosecutors can still place on the stand the chemist or analyst who actually
conducted the test and will not have to worry about a United States Supreme
Court decision upending a conviction.
