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September/October 2004, Page 25
DUI Defense Practitioner's Perspective
By Bruce Kapsack; Steven Oberman
Every once in a while, the U.S. Supremes get it right. Such is the case in Crawford v. Washington,1 perhaps the most important case on cross-examination to date. Like many Supreme Court decisions, Crawford answers the question brought before the Court, yet leaves many more issues unanswered.
Justice Scalia, writing on behalf of the Court, proclaims in this case that the Sixth Amendment guarantee of confrontation means that out of court “testimonial” statements are inadmissible at trial absent a prior opportunity to cross-examine the witness. However, the Court admits that the question of what is meant by the term “testimonial” is being left for another day. Of course, it is this very issue which is critical to DUI and other criminal defense practitioners. As one court put it, “[t]he Crawford decision is rich in detail about the law of England in the 16th, 17th and 18th centuries, but — as the Chief Justice points out — it fails to give urgently needed guidance as to how to apply the Sixth Amendment right now, in the 21st century.” 2
The definition of testimonial evidence used by Justice Scalia, albeit admittedly vague, is as follows: (1) “ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pre-trial statements that declarants would reasonably expect to be used prosecutorially” or (2) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial.” 3
The first definition is rather simple in scope. This definition includes any statement which is made inculpating the accused, orally or in writing, to any government official where the accused was not given the opportunity to cross-examine the declarant. If presented during grand jury, coroner investigation, preliminary hearing or even police interrogation, the evidence is precluded no matter how ‘reliable’ it may be.
The second definition is the troubling one. Under the old Roberts rule, if hearsay were shown to be ‘reliable’, i.e. within a hearsay exception, it would be admitted. This is no longer true under Crawford. “Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation.”4
Perhaps the easiest way to picture Crawford is the old law school evidence class approach: question what is being offered, and who is offering it. If the evidence being offered is a fact which is critical to prove the alleged offense, then it is testimonial. If the person offering it is not personally present, then confrontation is being denied. For example, if the evidence is of a blood test result performed by Dr. Jones, then Dr. Jones must be available for cross-examination.
Now, looking at this issue purely from a hearsay point of view, should Smith come in and state that he is the custodian of records, that the lab report is made by Dr. Jones at or near the time pursuant to both an official and business duty, as the crime lab is county run, and it appears to be trustworthy, then the results would be admissible over the hearsay objection. However, Crawford may require a higher standard if the court interprets the record as testimonial in nature. “It is not enough to point out that most of the usual safeguards of the adversary process attend the statement, when the single most important safeguard missing is the one the Confronta-tion Clause demands.”5
We can obviously see what this means in the above example or with similar forensic test results, but let’s go further. For years DUI defense lawyers have been attempting to obtain the inner workings of the various breath or blood testing devices. We have been denied at every step. Now, under Crawford, we may have a new tool.
A machine and its results are clearly testimonial. In fact, it is the piece of testimony necessary, and indeed often the only one needed, to prove a per se charge. That being said, aren’t the inner workings of the machine necessarily testimonial? Let’s look at it in the manner we first suggested, the evidence class approach.
The printout of the machine is in court ‘saying,’ “here is the breath (or blood) alcohol content of Mr. Defendant.” If this were a live person, the first question we would ask is how did you determine this result? We would clearly be allowed to ask about the science used, the calculations made, and the procedures followed; yet, because it is a machine, we are denied this confrontation. Again, paraphrasing Crawford, where testimonial evidence is attempted to be introduced without the witness present, the Sixth Amendment demands what the common law required — unavailability of the witness and a prior opportunity for cross-examination.6
The machine printout type of evidence is precisely the type of modern evidence with which the Framers of our Constitution were concerned. “Involve-ment of government officers in the production of testimony with an eye toward trial presents unique potential for prosecutorial abuse — a fact borne out time and again throughout a history with which the Framers were keenly familiar. This consideration does not evaporate when testimony happens to fall within some broad, modern hearsay exception, even if that exception might be justifiable in other circumstances.”7
Nor does this consideration evaporate with the latest, greatest breath or blood testing device. In other words, our constitution does not yet provide for conviction by machine.
With the potentially good news that Crawford brings to the DUI practitioner, comes a note of caution.
Where non-testimonial hearsay is at issue, as courts may interpret some business records, the state’s development of hearsay law would not amount to a constitutional violation.8
Where testimonial evidence is at issue, however, the Sixth Amendment demands both unavailability and a prior opportunity for cross-examination. 9
Therefore, at first blush, counsel may want to consider not cross-examining a witness at a preliminary hearing, administrative hearing, or the like if good reason exists to believe the witness may be unavailable at trial. If cross-examination were to take place, it may leave open the possibility of the prosecution using the witness’s prior testimony at trial. However, counsel should be cautious with this approach, as the court may distinguish such a scenario from Crawford, finding that the defense waived the opportunity to cross examine the witness, for the Sixth Amendment requires only a prior opportunity to cross, not an actual cross-examination of the witness.
As the term “testimonial” is defined by later case law, Crawford may also change the law relating to informants who call the police to report a drunk driver, and to the computer programs and algorithms used in chemical testing devices. In sum, the Crawford case ultimately means that even though the prosecution may be able to admit evidence through a hearsay exception, the evidence may be inadmissible unless the confrontation rights of the defendant are satisfied.
Notes
1. 124 SCT. 1354, 158 L.Ed.2d 177 (2004).
2. People v. Moscat, No. 24090, slip op. at 3, (N.Y. Crim. Ct. March 25, 2004).
3. Crawford at 1364.
4. Id. at 1370.
5. Id. at 1372.
6. Id. at 1365.
7. Id. at 1367.
8. Id. at 1374.
Bruce Kapsack is a defense lawyer in Oakland, CA. Phone 510-645-0027; E-mail: bruce@kandblaw.com.
Steven Oberman is a defense lawyer in Knoxville, TN. Phone 865-546-4292; E-mail: oberman@daolaw.com. |
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National Association of Criminal Defense Lawyers (NACDL)
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