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Lab Witness Testimony is Required in Washington State DUI Litigation

Will Forensic Scientists Testify at my Hearings or Trial?

As a criminal defendant in a DUI case you have a right to "face your accusers."  This means they must testify and be cross examined.  The DUI prosecutors will attempt to admit evidence without their testimony sometimes in an effort to avoid cross examination and because the Washington State Toxicology Analysts, who testify regarding the accuracy and reliability of the breath test machine, are very busy.  They have to testify all over the State of Washington because the breath test machines are the same but they office is here in Seattle on Airport Way.

So when you set your case for trial in Spokane or Okanagon, Benton or Grant County, the analyst from Airport Way must travel there to testify.  As you can imagine there's been quite a bit of struggle in the DUI courts about who has to testify for the DUI prosecutors to prove their case.

On June 23, 2011, in a long awaited and heavily contested opinion, the United States Supreme Court ruled that DUI Prosecutors must actually call forensic witnesses to prove their cases instead of just using pieces of paper with a statement on it. In Bullcoming V. New Mexico, the Court said that defendants have a right to confront witnesses who testify against them.

To introduce forensic evidence of blood alcohol the prosecutors must establish that the tests done are valid and reliable – that the machine is in proper working order and been calibrated correctly. Someone must tell the jury if the machine has been maintained properly. The prosecutors prefer to introduce a piece of paper that says all of this without the representative from the toxicology lab facing any cross examination. Or as in Bullcoming, send a substitute person and call them an expert so they can say all the incriminating things and then say, “I don't know, I didn't do the test,” to all cross examination questions. This violates the sixth amendment right to confrontation when we are facing criminal charges by the government. We have a right to face our accusers. Justice Ginsburg wrote the opinion for the majority, which included Justice Scalia:

The question presented is whether the ConfrontationClause 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 thecertification. We hold that surrogate testimony of thatorder does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Following the U.S. Supreme Court's landmark Washington State case of Crawford in 2004, which was bolstered by Melendez-Diaz in 2009, testimonial evidence has changed. The Supreme Court has made clear that any testimonial evidence must be “checked” in our adversarial system by the accused persons constitutional right to cross examine or “face” their accusers. Reports from labs will not substitute for live testimony in a criminal case.

The Governments two arguments that the signer of the lab document was a mere scrivener and the substitute lab analyst was an expert failed to meet the Six Amendment requirements. The line of cases interpreting the Sixth Amendment is now completely filled in. No question remains unanswered.

The Sixth Amendment's Confrontation Clause confers upon the accused “[i]n all criminal prosecutions, . . . theright . . . to be confronted with the witnesses against him.”In a pathmarking 2004 decision, Crawford v. Washington, we overruled Ohio v. Roberts, 448 U. S. 56 (1980), whichhad interpreted the Confrontation Clause to allow admission of absent witnesses' testimonial statements based on a judicial determination of reliability. See Roberts, 448

U. S., at 66. Rejecting Roberts' “amorphous notions of ‘reliability,'” Crawford, 541 U. S., at 61, Crawford held that fidelity to the Confrontation Clause permitted admission of “[t]estimonial statements of witnesses absent fromtrial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to crossexamine,” id., at 59. See Michigan v. Bryant, 562 U. S. ___, ___ (2011) (slip op., at 7) (“[F]or testimonial evidence to be admissible, the Sixth Amendment ‘demands what the common law required: unavailability [of the witness]and a prior opportunity for cross-examination.'”

The Court reinterated that In Melendez-Diaz the Court refused to make a “forensic evidence exception” to the Sixth Amendment. The Prosecutions effrots to convict people by a ticket (rely only on the ticket that comes out of a breath test machine) will not happen until this line of cases is overturned.

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