Defendant met two undercover officers at a bowling alley while playing pool. One officer asked the defendant about purchasing cocaine. Defendant helped the officer locate a purchase a small amount of cocaine. On the the second meeting, and again at the request of undercover officers, the defendant helped them locate and purchase a small amount of cocaine and marijuana. After purchasing the drugs, the officers sealed the items in marked envelopes and put them in the night evidence depository. The evidence was then retrieved by the evidence custodian and transported to the state toxicology lab where it was delivered to a criminologist (who was not called to testify). Two lab analysts received the exhibits in the sealed, marked envelopes. After analyzing the contents, the exhibits were placed back into sealed, marked envelopes and in a secure evidence locker. The envelope was then picked up and transported back to evidence.
For an item to be accepted into evidence, there must be a preliminary showing that the proposed exhibit is what it purports to be and is in substantially the same condition as it was at the time of the crime. The circumstances surrounding the custody of the article and the likelihood of tampering are factors to be considered in determining admissibility. However, in Wynia, the Court ruled that once the evidence is in the hands of the state it is generally presumed that it is handled with regularity absent a showing of bad faith or actual tampering. A weak link in the chain of custody and any doubt created by the weak link goes to weight and not admissibility.
However, Wynia, was decided before Crawford v. Washington, 541 U.S. 36 (2004) and the resulting cases building on that ruling. Crawford held that the confrontation clause precludes admission of hearsay evidence that is testimonial unless there has been a showing of unavailability and a prior opportunity for defendant to cross-examine the unavailable declarant who uttered the evidence. Where the hearsay evidence uttered by the declarant is non-testimonial, states are free to develop their own hearsay law. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts”). The threshold question is whether the proposed out-of-court hearsay evidence is testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).547 U.S. 822 addressed this issue. Scientific analysis in a lab is not an interrogation, but it is police action which produces evidence about something found in defendant’s possession, and the police actions to produce that evidence are “solely directed at establishing the facts of [the] past crime.” The action of doing laboratory analysis may be thought of as an interrogation of something the defendant possessed. When police action “produces testimony solely directed at establishing the facts of a past crime, in order to…provide evidence to convict the perpetrator,” the evidence produced, whether a tape-recorded statement, hand-written statement, or statement in the form of a crime lab report, is testimonial.
That leaves the question of what witnesses are necessary for the prosecution to call to prove what was in the defendant's blood for a DUI based on a blood draw. If a court applies strict adherence to the holding in Wynia without looking at the facts of the case or the complexities of blood evidence, then only the analyst needs to be called. This is a mistake and a violation of the 6th Amendment right to confront adverse witnesses. Here is why.
First, the person who drew the blood must be cross examined as to the methods used to draw the blood, the age and quality of the tubes used to store the blood, and amount of time the tubes were went without refrigeration. Next the evidence custodian who moves the evidence prior to transportation must be crossed examined as to the temperature and consistency of the refrigeration while the tubes are technically under her or his custody. They also need to provide information as to the condition the evidence was found in as well as any defects in the paperwork that could cast doubt on the authenticity of the evidence.
Next the blood is transported to the lab. How long did this process take? Where was the evidence kept? How was it secured? What temperature was it kept at? How was the temperature controlled. Once the blood has reached the lab, what condition was it in? Were there any irregularities in the evidence packaging or paperwork that had been missed by the police custodian? Was there any delay in securing or refrigerating the blood? How long and why were there delays?
In Utah, more than one analyst handles the blood. Initial screening to done by one analyst. Followup up testing will be completed by one or more analysts. These analysts must be thoroughly questioned: What condition were the tubes found in? Was there enough blood to perform the required tests? If not, did anyone add water or another substance to the blood to bring it to the proper volume. Was the blood clotted? Likewise, there is a wealth of information that needs to be addressed about the maintenance and calibration of the machines, the training of the operators, the standard operating procedures, the laboratory credentials.
It is plain to see that there are too many issues with blood draw DUIs to presume evidence is handling with regularity. Couple that with recent scandals of lab analysts faking results in the north east and new reports that many state labs get paid per conviction. The bottom line is that the government should not get the benefit of the doubt concerning the handling and testing of blood evidence for DUI cases. Doing so violates a defendant's right to confront adverse witnesses.
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