How The Melendez-Diaz V. Massachusetts Decision Could Affect Michigan Owi Cases
By: Kenneth Stecker
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Crime laboratory reports are key pieces of evidence in a large number of criminal trials throughout Michigan. Crime laboratories analyze a wide array of materials that determine the guilt of the defendant: the identification of illegal drugs, biological evidence such as hair, blood, urine, and semen, the results of the bodily alcohol content of drunken drivers, ballistic tests, fingerprint identification, autopsy reports, and much more.
In 2004, in Crawford v. Washington, 541 U.S. 36 (2004), the United States Supreme Court revolutionized the Confrontation Clause of the Sixth Amendment to the United States Constitution. In Crawford, the court ruled that the government may not introduce a testimonial statement made by a witness unless it shows that the witness is unavailable and that the defendant had a prior opportunity to cross-examine the witness. This decision had an immediate, profound effect upon the ability of prosecutors to prove their cases through the use of evidence which had previously been admissible via various exceptions to the hearsay rule.
On June 25, 2009, following the ruling in Crawford, the United States Supreme Court ruled in Melendez-Diaz v. Massachusetts, that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical test report without the testimony of the lab analyst.
Summary of the Facts:
Luis Melendez-Diaz was arrested while making a cocaine sale in a parking lot in Massachusetts. At trial, bags of the cocaine alleged to have been distributed by Melendez-Diaz were introduced into evidence along with drug analysis certificates prepared by the lab technician who analyzed the drugs and identified them as cocaine. A jury convicted Melendez-Diaz of distributing and trafficking cocaine. Melendez-Diaz appealed, arguing that the state’s introduction of the drug analysis certificates violated his Sixth Amendment right to confront witnesses against him under the court’s ruling in Crawford v Washington. The Massachusetts Court of Appeals rejected Melendez-Diaz’s claims in an unpublished opinion, referring to them in a short footnote as “without merit.” The Massachusetts Supreme Court also denied his appeal. The United States Supreme Court granted certiorari.
Issue:
Is a state forensic analyst’s laboratory report prepared for use in a criminal prosecution “testimonial” evidence subject to the demands of the Sixth Amendment’s Confrontation Clause as set forth in Crawford v. Washington?
Ruling:
The Supreme Court held that a state forensic analyst’s laboratory report that is prepared for use in a criminal prosecution is subject to the demands of the Sixth Amendment’s Confrontation Clause. With Justice Antonin G. Scalia writing for the court and joined by Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg, the court reasoned that the laboratory reports were testimonial. Therefore, when Mr. Melendez-Diaz was not allowed to confront the persons who created the laboratory reports used in testimony at his trial, his Sixth Amendment right was violated.
Justice Thomas wrote a separate concurring opinion, emphasizing that he thought the Confrontation Clause was only implicated by statements made outside the courtroom when they are part of “formalized testimonial materials.” Because Massachusetts’ law required the reports to be in the form of a sworn affidavit, the affidavits were formalized testimonial materials.
Justice Anthony M. Kennedy dissented and was joined by Chief Justice John G. Roberts, and Justices Stephen G. Breyer and Samuel A. Alito. He criticized the majority for dispensing with the long held rule that scientific analysis could be introduced into evidence without testimony from the analyst who produced it.
How Melendez-Diaz may Apply to OWI Breath and Blood-test Cases in Michigan
Breath-test Cases:
The two key admissible documents in an OWI breath-test case are the: (1) BAC DataMaster Evidence Ticket (i.e. identifying defendant, defendant’s address, DOB, license number, date, time of the test(s), BAC level, operator’s name, officer’s signature, start observation time, and the instrument serial number) and (2) Evidential Breath Testing Logs (i.e. identifying the day of the simulator test, operator ORI number, equipment accuracy number, instrument location, instrument number, alcohol standard control number).
(1) BAC DataMaster Evidence Ticket precludes admission without the presence at trial of the officer who operated the DataMaster when defendant blew into it producing his or her test result(s). This procedure of calling the breathalyzer operator to testify will not change.
(2) Evidential Breath Testing Logs has been litigated post-Crawford in Michigan. In People v. Hagadorn, No. 269825 (Mich. App., decided April 21, 2007), the Court ruled that the DataMaster logs are not testimonial, thus their admissibility is not governed by Crawford.
The defense will most likely argue admission of the evidential breath testing logs without the technician’s presence at trial violates the right to confront the witness. They will contend that the evidential breath testing logs are plainly made for the purpose of establishing or proving some past fact and are functionally identical to live, in-court testimony doing precisely what a witness does on direct examination. Additionally, the documents are made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; thus, defense counsel will argue, the breathalyzer operator must be available for in-court confrontation.
Law enforcement and prosecutors should be aware when an officer is called to testify on this issue that the breathalyzer logs do not mention a specific OWI defendant in any way. They do not name a defendant, they do not show a BAC level, and further, the instrument is inspected, verified for accuracy, and certified by a Class IVB operator of the instrument manufacturer’s authorized representative every 120 days regardless whether a defendant is arrested for OWI.
Blood-draw Cases:
The one admissible document in an OWI blood-draw case is the report from the state crime lab showing BAC level or controlled substance level. The plurality opinion in Melendez-Diaz is almost directly on point and precludes admission without the presence at trial of the analyst for all the reasons the laboratory report in Melendez-Diaz is distinct from the evidential breath testing logs. The Michigan State Police crime laboratory report in an OWI case is specific to a particular defendant, it identifies him or her by name, it identifies the substance connected to him, i.e., found in his or her blood or urine, it is only produced because defendant was being prosecuted and would not have been produced if defendant had not been arrested, and when it was produced the “past crime” had already happened. This will not change anything that prosecutors have been doing all along in OWI cases.
An OWI blood-draw case generally is brought using the arresting officer, the person who did the blood draw, and the analyst, but nobody else in between who handled the blood vial (i.e. the person who drove it to the laboratory, if it wasn’t mailed) and any other missing links in the chain of custody. A defense attorney may insist that all the witnesses forming the entire chain of evidence must be present at trial, and that would affect the way some offices are prosecuting OWI cases.
For example, if the prosecutor asks the analyst how the lab comes into possession of the blood vial and the analyst starts to answer that “officer so-and-so usually drives over a basketful of vials twice a week so I assume that’s how we got this sample,” that could arguably be objectionable under Melendez-Diaz. Therefore, it is imperative that when law enforcement is doing an OWI blood draw, that law enforcement thoroughly document who was involved in handling the evidence just in case the defendant and his/her attorney raises the Melendez-Diaz case.
It should be noted that in Michigan there is no case law that addresses the issue whether in an individual in the chain of custody is considered to be a testimonial witness.
However, in contrast to the hearsay evidence produced by police or government interrogation or other action in the above cases, the custodian's act of transporting the vial is not a police or government interrogation or action which has a purpose of producing evidence to establish a past fact or crime by defendant. There is nothing in the custodian's proposed testimony about his or her own act of transporting the vial that could establish a past crime committed by defendant.
The custodian's evidence is about what the custodian did, not about what defendant did. Thus, the custodian's evidence/testimony is not testimonial, and it may be introduced into evidence via hearsay, subject only to state hearsay law. See, Melendez-Diaz, 557 U.S. at ___, note 1. (We do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear as part of the prosecution’s case… Additionally, documents prepared in the regular course of equipment maintenance may well qualify as non-testimonial records.)
In conclusion, it is important to remember that a laboratory test is something where a specific piece of evidence is tested for the purpose of testimony in court designed to inculpate a specific defendant, and as such is testimonial hearsay. The problem in Melendez-Diaz was not that a governmental agent had certified a record; it was that the record certified was testimonial, and the defendant had the right to confront the lab analyst and cross-examine the analyst concerning the conclusions. Since it is only testimonial hearsay that runs into the Confrontation Clause problem, it is important to keep in mind that that Melendez-Diaz may not necessarily preclude the introduction of such documents as hospital blood draw results, which is simply a record of an individual’s medical history and therefore not testimonial.
Editor’s Note: For more information on these cases and statutes and PAAM training programs, contact Kenneth Stecker, Traffic Safety Resource Prosecutor, at (517) 334-6060 or e-mail at steckerk@michigan.gov. Please consult your prosecutor before adopting practices suggested by reports in this article. The court decisions in this article are reported to help you keep up with trends in the law. Discuss your practices that relate to these statutes and cases with your commanding officers, police legal advisors, and the prosecuting attorney before changing your practices in reliance on a reported court decision or legislative change.
