The Sixth Amendment of the United States Constitution grants a criminal defendant the right to confront adverse witnesses. Prosecutors cannot introduce testimonial out-of-court statements at trial without calling the witness to testify and without permitting the defendant to cross-examine that witness. If a statement is not testimonial, however, a defendant has no right to confront the witness who made it.
Is a lab report that purports to measure blood alcohol level a testimonial statement? Is the prosecution required to call the analyst who tested the blood and created the report to testify as a witness in order to submit the report into evidence during a criminal trial?
The California Supreme Court recently addressed this question in People v. Lopez (S177046). There are several California Supreme Court opinions on the issue of admitting lab reports over Confrontation Clause objections. The opinions are inconsistent and not possible to reconcile with previous United States Supreme Court guidance in this area. Hopefully, the United States Supreme Court will take the opportunity in the near future to tell the California Supreme Court that they are wrong in their analysis.
The Lopez Court’s opinion involved a woman charged with vehicular manslaughter while intoxicated. On the day of the incident, the prosecution argued that the woman drank three shots of tequila, hit another car, and killed the driver of that car. The defendant was also injured and airlifted to a hospital. The woman told the medical technician in the helicopter that she had been drinking and vials of her blood were taken at the hospital two hours after the accident.
To prove that the woman was intoxicated, the prosecution introduced a laboratory report regarding the percentage of alcohol in the woman’s blood two hours after the accident. The report was not notarized or certified. The analyst who created the report was not called as a witness. Another employee who worked at the lab with the analyst testified regarding the results in the report. The woman was convicted by a jury.
The California Supreme Court was asked to determine if the trial court violated the defendant’s right to confront witnesses testifying against her by permitting the lab report to be submitted into evidence without requiring the analyst to testify in court. The Court held that a testimonial out-of-court statement cannot be introduced at trial unless the witness was unavailable and the defendant had a prior opportunity for cross-examination. The Court adopted a two-part test for determining when a statement is testimonial. First, the statement must have been made with some degree of formality or solemnity in order to be testimonial. Second, the primary purpose of the statement must pertain in some fashion to a criminal prosecution. The California Supreme Court held that where a laboratory report was not made with sufficient formality or solemnity (e.g. it was not notarized or certified), then it was not a testimonial statement and could be admitted into evidence without the analyst being called in as a witness. The Court did not even consider the second prong of their test and did not analyze the purpose of the statement.
Justice Liu dissented, finding that the level of formality of a statement is relevant when determining whether a statement is testimonial, but it should not be dispositive. Justice Liu emphasized that the analysis needs to go further and look at the “process and purpose that gave rise to those statements,” and he criticized the majority for simply resting its decision solely on the lack of formality. Justice Liu then recounted the rigorous rules and regulations that apply to the crime lab’s procedure for handling and testing samples that will later be used in a criminal case, and he emphasized the fact that it was going to be used for a criminal case. Justice Liu came to the conclusion that the lab report was produced with a formality of process that implicates the rights protected by the confrontation clause.
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