Confrontation Rights

DWI Confrontation Rights Upheld By United States Supreme Court

In a recent United States Supreme Court decision, Bullcoming v. New Mexico , 131 S.Ct. 2705 (2011),  the Court grappled with the question as to whether the Confrontation Clause of the United States Constitution allows the prosecutor to introduce a forensic laboratory report for a blood sample containing a testimonial certification by using the testimony of a scientist who did not sign the certification or even observe the test reported in the certification.

In reversing the conviction, the Court ruled that the accused has a right to be confronted by the analyst who made the certification in order to give the accused an opportunity to cross-examine that particular blood or drug analyst.
In its decision, the Court referred to its earlier holding in Crawford v. Washington, 124 S.Ct.1354 (2004), wherein the Court ruled that the Confrontation Clause permits the admission of "testimonial statements of witnesses who are absent from trial only when that declarant is unavailable and only where the defendant had a prior opportunity to cross-examine." The Court also referred to its prior decision in Melendez-Diaz v. Massachusetts, 129 S.Ct.2527 (2009) wherein the Court declined to create an evidentiary exception for a lab report. The Court ruled that a lab report was "testimonial" for Confrontation Clause purposes and that absent a stipulation, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the reports statements. 129 S.Ct. 2527.

The fair import of these cases is to require the prosecutor to produce the lab analyst who actually tested the blood or urine samples. This will substantially increase the burden on prosecutors since many of these samples are routinely shipped out of state for testing and as a result, these analysts will not be readily available for testimony.

This decision is significant also in cases where a breath sample is taken instead of a blood test or urine test. In the past, Police agencies like the Nassau County Police Department do not produce the mechanic or technical supervisor who actually calibrated and maintained the breath test machine, or the forensic scientist that prepared the simulator solution used to test the machine and during a subjects test, instead relying on the police officer who administered the breath test or a technical supervisor who did calibrate, maintain the machine, or actually oversee the preparation of the simulator solution. Through this witness the Prosecution introduces sworn statements that were prepared by mechanic and forensic scientist that allegedly attest to the proper maintenance of the machine, and the proper preparation of the simulator solution.

By doing so the Prosecution prevents defense counsel from bringing out the deficiencies in the procedures actually used, and their shortcomings in terms of producing reliable results to the Jury. This practice frequently employed by Prosecutors throughout the state denies the defendant his right to confront and cross examine necessary witnesses. One would think that the Prosecution would want to try with live testimony that the machines are properly maintained and procedures used are correct when trying to convict a person accused of drunk driving.  This is especially true when invariably the accused could be sentenced to jail, among other harsh consequences. In those rare instances when the Prosecutor do, the results have not been desirable. 

In fact, in a recent case of People v. Susan K.  tried in Nassau County District Court in 2011 when the prosecutor called the Nassau County Police Officer to the stand who maintained the Machine; the mechanic,  the officer testified to the limitations of the procedures and indicated that the current procedures used to maintain these machines, is not adequate to ensure reliable readings for defendants. Moreover the Nassau County Police Officer testified that he was prevented by his superiors from employing the recognized accepted procedures that would ensure reliable breath test readings for those accused of Drunk driving.  When the Forensic scientist, Margaret Fisher testified, she went through the acceptable scientific procedures that are necessary when one relies on analysis of unknown samples.  Her testimony revealed that the current procedures used for Breath testing procedures employed by the Nassau County Police Department in terms of quality assurance, fell short of acceptable practices.

In that trial, the defendant was acquitted with a .22 reading after the jury heard this evidence.  In a subsequent trial, neither the same mechanic was called to testify, nor was Margaret Fischer called, even though defense counsel in opening statement told the jury what the previous testimony had been in the previous case, and challenged the Prosecutor to produce the witnesses.  The Prosecutors in that case refused to call these necessary witnesses, instead, relying on documents that were filled out by these individuals as related by the breath tech/technical supervisor on the case, who neither repaired nor maintained the machines. Ironically, this witness testified to matters that actually had contracted the mechanics previous testimony less than two months prior. This prevented defense counsel from bringing out the truth as to the deficient procedures employed by the Nassau County Police Department, as the witness who was called, refused to concede any deficiency in the procedures which had previously been admitted to by the actual individuals who conducted the aforementioned test under oath less than 2 months earlier!!!! 

It appears that United States Supreme Court decision, Bullcoming v. New Mexico , 131 S.Ct. 2705 (2011),  will end this practice which prevents the Jury from hearing the witnesses that actually performed the work claimed to have been done and prevent the Prosecutors from convicting People accused of crimes by introducing documents prepared by others that can not be cross examine.