Thursday, January 21, 2016
Cases to object to lab reports in DWI blood and urine cases Middlesex County East Brunswick Edison Highland Park Jamesburg Metuchen Middlesex Boro Milltown Monroe New Brunswick North Brunswick Old Bridge Perth Amboy Piscataway Plainsboro South Brunswick South Plainfield South River Spotswood Woodbridge Carteret Cranbury Dunellen
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.
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.