The value of confrontational behavior

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Recent Supreme Court decisions reinforce the idea that DUI defendants have much to gain by pressing their Sixth Amendment rights

A trilogy of recent U.S. Supreme Court rulings provides a roadmap to traffic-law attorneys who want to contest laboratory analysis, breath alcohol tests, and blood alcohol tests. These opinions have a huge impact in helping defendants accused of DUI or drug charges obtain a fair trial where they are allowed to cross-examine the laboratory analyst who performed the examination.

Any breath alcohol test, blood alcohol test, or forensic drug examination must be accompanied by the officer or laboratory technician who performed the test before it can be admissible.  Critically, this allows a defendant the right to confront and cross-examine the witness regarding the obtaining, handling, storage, and testing of the sample.

At the conclusion of this year’s session, a splintered Supreme Court in Williams v. Illinois authorized the use of laboratory reports during a trial without allowing the defendant an opportunity to cross-examine the technician who created the report. This opinion is a slight retreat from recent rulings that broadly interpreted the Sixth Amendment right of confrontation in favor of defendants in three comparable cases, Crawford v. Washington, Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico.

Justice Samuel Alito, writing for a four-justice plurality, affirmed that the testimony of an expert witness based upon a test that the expert did not personally perform is admissible and does not violate the defendant’s Sixth Amendment rights. The court held that because the evidence of the third-party test was not offered to prove the truth of the matter asserted, but merely to provide a basis for the conclusions that the expert reached, the prosecution had not infringed on the defendant’s right to confront and cross examine witnesses.

The court’s ruling hinged on the fact that the government witness testified and concluded that the DNA report in question matched a profile report the state laboratory had previously produced using a sample of Williams’ blood; and that the government witness was available to the defendant for cross-examination during trial. Accordingly, the court concluded that the testimony offered did not fall within the bounds of a Confrontation Clause violation because the results were considered (by the testifying witness) for the limited purpose of seeing whether it matched the profile report from the state laboratory. The DNA report prepared by a private lab called Cellmark was not offered to prove the guilt of the defendant, as Williams was not a suspect at the time the test was conducted.

The decision in Williams departs to some degree from the recent Supreme Court rulings referred to by the defense bar as “the trilogy.” However, the plurality in Williams felt that its decision was consistent with both the Melendez-Diaz and Bullcoming opinions (where the forensic reports were introduced for the purpose of proving the truth of what they asserted).  Here, Cellmark’s report was considered and admitted for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence which showed that the report was based on a sample from the crime scene.  Furthermore, the court specifically noted in Williams that “the forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt.”

In contrast, the court went on to note in Williams that the primary purpose of the Cellmark report was to catch a dangerous rapist who was still at large, and not to obtain evidence for use against the defendant.  Accordingly, there was no “prospect of fabrication” in the court’s eyes, and that was the distinguishing factor as contrasted with the cases discussed below.

The all-important trilogy

The three primary opinions authored by the United States Supreme Court in the last 10 years dealing with a defendant’s Sixth Amendment right to confront witnesses started with Crawford v. Washington.  Michael Crawford stabbed a man that he claimed was trying to rape his wife.  During Crawford’s trial in state court, prosecutors played his wife’s tape recorded statement given to the police which described the stabbing for the jury.  The statement contradicted Crawford’s claim that he stabbed the man in defense of his wife. Crawford, despite arguing that allowing the jury to hear his wife’s prerecorded statement violated his Sixth Amendment rights because he was not allowed any opportunity to cross-examine the recording, was convicted.

In a 9-0 opinion written by Justice Antonin Scalia, the court reversed Crawford’s conviction and ruled that his right to confront and cross-examine witnesses had been violated.  Scalia concluded that the Confrontation Clause applies to any “witnesses” against the defendant, meaning any person, statement or document whose purpose was to “bear testimony.”  The Crawford opinion has been consistently viewed as a bellwether case for defendant’s rights.  It had an immediate and far reaching effect in criminal courts nationwide. Previously, prosecutors had enjoyed a fair amount of leeway involving the use of affidavits and lab reports (where they gained admission through various exceptions to the hearsay rule). In Crawford, the court expressly held that any out of court statement that was “testimonial in nature” was not admissible unless the defendant has the right of cross-examination.

In Melendez-Diaz v. Massachusetts, the court applied the standard as set forth in Crawford to a state forensic laboratory report.  Briefly, in the prosecution of a drug case against Melendez-Diaz, the trial court allowed lab reports identifying the substance as cocaine without any testimony from the analyst. In a 5-4 decision, the Supreme Court held that because the lab report was prepared for use in a criminal prosecution the SixthAmendment demanded that the defendant be given the right to cross-examine the author of the lab report. As set forth in Crawford , the Supreme Court held that the laboratory report prepared and used in a criminal prosecution was “testimonial in nature” and that the defendant had a fundamental right to confront and cross-examine the analyst who prepared the report.

In 2010, the court revisited the Crawford and Melendez-Diaz opinions in a case involving a laboratory report of a blood alcohol reading in a DUI case. Once again, and in another 5-4 decision, the court held a line that it created in Crawford.  In Bullcoming v New Mexico, the Supreme Court held that the admission of the blood alcohol report without the actual testimony of the person who prepared the report violated Bullcoming’s Sixth Amendment rights.

Specifically, Justice Ruth Bader Ginsburg stated, “The Confrontation Clause (of the Sixth Amendment) does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification (as to its accuracy), made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform the test….”

Objection required in SC

South Carolina Rules of Criminal Procedure Six (6)(a) “Rule for Chemical Analysis and Chain of Custody” states that a SLED laboratory report concerning controlled substances shall be admitted without the necessity of the chemist or analyst being present provided:

The report identifies each item tested, the type of test conducted and is written in language which can be understood by a juror without the necessity of an expert;

Is accompanied by an affidavit certifying the analyst’s qualifications and that they conducted the test shown on the report ; however, the defendant may object to the introduction of the report at the preliminary hearing or not later than 10 days prior to the trial of the case. If this objection is properly made, the trial judge shall require the chemist or analyst to be present at trial for the purpose of personally testifying.

The most recent decision, Williams, pares a defendant’s right to confront laboratory tests evidence prepared by an unavailable witness; however, the case does not appear to infringe upon a defendant’s right of confrontation where the laboratory report offered would be considered “testimonial in nature” and “offered as proof of truth of the matter asserted.”

Steve Sumner is a South Carolina attorney whose practice is focused on misdemeanor and felony DUI defense.