By Scott Semrau. Scott Semrau is a Marietta criminal defense attorney accepting DUI and criminal law cases. He is a graduate of the National Criminal Defense College and an Honors graduate of Tulane Law School. He resides in Marietta with his wife and three children. He hopes one day to change the law, just as soon as he figures out exactly what it is.
Executive Summary: An entire line of Georgia cases authorizing the use of surrogate crime lab testimony is likely overruled by the latest U.S. Supreme Court decision to expand upon Crawford v. Washington. Bullcoming v. New Mexico 131 S.Ct. 2705 (2011) stands for the proposition that crime lab tests can only be admitted through the testimony of the person who performed the tests; crime lab test results are themselves testimonial in nature and cannot be admitted through a surrogate.
The Path to Bullcoming: In 2004, the U.S. Supreme Court ended years of hearsay exceptions in Crawford v. Washington, 541 U.S. 36 (2004) holding that “testimonial” hearsay is barred by the Confrontation Clause, even if the statements were supported by “particular guarantees of trustworthiness.” Traditional hearsay exceptions—such as business records, would not be barred, but less established exceptions such as “statements made to law enforcement officers” would no longer be accepted. “Testimonial” hearsay includes statements made under circumstances that would lead the declarant to know that the statement is being used to establish some fact in the investigation of a crime.
The next case to expand upon the reasoning of Crawford was Melindez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). The Supreme Court took up the question of whether “scientific reports” were testimonial when it considered a Massachusetts statute authorizing admission of crime lab test results by affidavit. The Court barred the affidavit testimony, holding that a criminal defendant has the right to confront the actual witness. The Court also further developed the “primary purpose” analysis, pointing to the fact that the affidavits were clearly testimonial because they were prepared exclusively for use in a specific criminal proceeding. Note that the Georgia Statute, O.C.G.A. 35-3-154.1, which is very similar to the unconstitutional Massachusetts statute, was specifically endorsed by the Supreme Court because it creates a process where the State may give notice of its intent to proceed via affidavit and the defendant then has an opportunity to object.
The Georgia Cases: In Georgia, our Courts do not authorize crime lab testimony by affidavit, but they have routinely authorized testimony by others who did not perform the tests. Dunn v. State, 292 Ga.App. 667 (2008) is typical of the facts and reasoning of the Georgia Courts. In Dunn, a lab technician conducted tests on a substance believed to be methamphetamine. The technician did not testify at trial, but an expert witness used the machine generated results and came to her own independent conclusion about the identity of the substance:
“The expert’s testimony was proper, however, because the supervisor came to her own independent conclusion that the substance was methamphetamine based on the chemical “fingerprint” from the [gas chromatography mass spectrometry] test… An expert may base his opinion on data collected by others…. A physician may order a blood test for a patient and infer from the levels of sugar and insulin that the patient has diabetes. The physician’s diagnosis is testimonial, but the lab’s raw results are not, because data are not “statements” in any useful sense.”
The Georgia Supreme Court recently followed this same reasoning in Herrerra v. State, 288 Ga. 231 (2010), authorizing the admission of an absentee lab technician’s report and a supervisor’s testimony because the supervisor had developed the lab procedures and trained the staff:
“[T]he lab supervisor, an expert in toxicology, testified that he developed the lab procedures and trained the staff as to how to perform the tests; that he supervised the employees who conducted the tests; and that, in his opinion, based on the results of the tests, Herrera tested positive for amphetamine, methamphetamine and cocaine metabolites.”
Bullcoming v.New Mexico
The reasoning utilized in the Georgia cases cited above is clearly invalidated by Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011). In Bullcoming, the Defendant was arrested for DUI and given a blood test to determine his level of intoxication. The technician who tested the blood was unavailable, so another analyst, who had nothing to do with the test, offered his testimony to explain the test results.
Writing for the majority (5-4, Ginsburg, Scalia, Thomas, Kagan, Sotomayor), Justice Ginsberg styled the question as “whether the Confrontation clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” The Court held that the test results themselves were testimonial and the Defendant Bullcoming had a right under the Confrontation Clause to confront the technician who performed the tests.
The New Mexico Supreme Court had upheld the admission of the test results, so Justice Ginsberg evaluated their reasoning. First, the Court rejected the idea that the surrogate was merely conveying and interpreting the results produced by a machine: “[S]ources reveal that the matter is not so simple or certain. In order to perform quantitative analysis satisfactorily… the analyst must adhere to good analytical practices and understand what is being done and why.” The Court listed numerous accreditations contained within the test results themselves, namely that, (1) the sample was received intact, (2) the sample contained a viable test sample, (3) the tests were performed according to protocol, (4) no additional factors impacted the integrity of the tests. The Court also pointed to numerous instances where lab technicians falsified data and also pointed out that similar surrogate testimony would not be allowed in other areas:
[Witnesses routinely testify] “to their observations of factual conditions or events, e.g., “the light was green,” “the hour was noon.” Such witnesses may record, on the spot what they observed… Could an Officer other than the one who saw the number on the house or gun present the information in court – so long as that officer was equipped to testify about any technology the observing officer deployed and the departments’ standard procedure?…. The answer is emphatically “No.”
Second, the Court defined “Testimonial” in the context of laboratory results, finding that reports prepared in anticipation of criminal litigation are clearly testimonial: “an analyst’s certification prepared in connection with a criminal investigation or prosecution … is testimonial.” Clearly the Court is focusing on the purpose of the procedure. If the primary purpose for the blood test had been health related, then perhaps the State would not be required to produce the technician. The Court left open the idea, and the concurring opinion by Justice Sotomayor clearly endorsed the idea, that a supervisor who actually witnesses the initial testing could testify in place of the technician—but this scenario seems fairly unlikely to appear with frequency.
Thus, the reasoning espoused by the Georgia line of cases has been invalidated because it relies on the idea that testing itself is non-testimonial. At least as far as crime lab results, Georgia prosecutors should plan on bringing the witness who tested the materials, or retesting the materials with another witness.
Bullcoming and Georgia DUI Law: Finally, it is worth noting the implications for DUI blood and breath testing. My personal observations are that more and more Georgia DUI cases involve blood testing. Patrol officers prefer blood testing when intoxicating substances other than alcohol are suspected. I suspect this trend towards more blood tests is due to the (ridiculously) large number of physician prescriptions for anxiety and sleep aid medications. Bullcoming will cost the state money because more blood tests will require more technician testing. As state budgets continue to get smaller and crime technician are spread thinner, these issues will be more common.
As to breath testing, OCGA § 40-6-392(a)(1)(A), requires that breath tests must be performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine operating with all its components attached and in good working order. OCGA § 40-6-392(f) provides that a properly prepared and executed inspection certificate is admissible to satisfy this requirement. The primary purpose test enunciated in Melendez- Diaz and Bullcoming suggest that reports relating to routine maintenance and inspection of scientific instruments are probably not “testimonial” because they were not performed for litigation and the certificates normally would not be used to prove a particular fact. But in Georgia, the accuracy and quality of the approved device used for breath tests is a fact that must be established as the foundation to admission of the test results. As noted above, before a breath-test result is admitted into evidence, the state must prove that the test was performed on an approved device with all its parts attached and in good working order. The “primary purpose test would favor exclusion of the certificates because they are created for the purpose of proving a particular fact in a criminal prosecution. Moreover, alcohol breath testing machines have no alternative purpose other than providing testimony for criminal litigation. And lastly, the certificates themselves contain self vouching descriptive language such as “This breath-testing instrument was thoroughly inspected…” Thus, it seems that the Bullcoming reasoning may exclude certificates of inspection as they are presently utilized in Georgia DUI breath-testing cases.
The Future
Justice Sotomayor’s concurring opinion confirms her status as the “swing-vote” on this issue. She likely would have approved the testimony if there had been some or perhaps any alternative purpose to the testing other than for use in a criminal prosecution. Also, she suggested that a supervisor who had a substantial connection to the testing might be able to testify in place of the technician. The future of this issue is likely to involve fleshing out the degree of acceptable attenuation between the individual conducting the tests and the individual testifying in court. The U.S. Supreme Court has accepted Cert in Williams v. Illinois, where the State hired a private company to conduct DNA tests and then used a State expert to testify to their contents. Based on my reading of Bullcoming, I’ll put money on the Illinois test results being excluded.
