Academic journal article Harvard Law Review

Evidence - Confrontation Clause - Fourth Circuit Holds That "Machine-Generated" Analysis Is Not Testimonial Evidence. - United States V. Washington

Academic journal article Harvard Law Review

Evidence - Confrontation Clause - Fourth Circuit Holds That "Machine-Generated" Analysis Is Not Testimonial Evidence. - United States V. Washington

Article excerpt

In Crawford v. Washington, (1) the Supreme Court held that the admission of "testimonial" hearsay (2) violates the Sixth Amendment's Confrontation Clause (3) unless the witness is unavailable and the defendant has had a "prior opportunity" to cross-examine the witness. (4) Although the Supreme Court's Crawford decision was once hailed as an important reinvigoration of the procedural guarantees of the Confrontation Clause, (5) its lasting hallmark has been the Court's determination to "leave for another day any effort to spell out a comprehensive definition of 'testimonial.'" (6) The Court's vague language and failure to provide clarification have allowed lower courts to apply Crawford as they see fit. Unfortunately, many courts have eroded defendants' constitutional rights by using such discretion to circumvent the Confrontation Clause. One way in which courts have done this is by holding that laboratory reports may be admitted as a basis for expert opinion (7) or as a business record. (8) Recently, in United States v. Washington, (9) the Fourth Circuit created a new route around the Confrontation Clause when it held that the defendant's blood test reports were neither hearsay statements nor testimonial assertions because the statements should have been attributed to the machines that generated the reports and not to the technicians who operated them. (10) However, the Fourth Circuit's analysis failed to properly translate the underlying values and principles of the Confrontation Clause for the modern, technological era in which guilt or innocence can turn on data generated by technicians in processes open to mistake and falsification.

On January 3, 2004, U.S. Park Police Officer Gary Hatch noticed a vehicle traveling unusually slowly on the Baltimore-Washington Parkway. (11) After stopping the vehicle, Officer Hatch handcuffed the driver, Dwonne Washington, and took him to a hospital to get a blood sample. (12) The blood was sent to the Armed Forces Institute of Pathology to be tested for drugs. (13)

At trial, the government called Dr. Barry Levine, director of the toxicology lab, to testify as an expert witness that Washington's blood contained alcohol and the drug PCP. (14) Dr. Levine did not personally conduct or observe any of the tests on Washington's blood. (15) His testimony was based on a final report generated from the results of tests performed by technicians and reviewed by their mid-level supervisor, none of whom testified at trial. (16) Over Washington's objection that Dr. Levine's testimony violated his Sixth Amendment confrontation right and the Federal Rules of Evidence, the magistrate judge found the testimony admissible and the defendant "guilty of unsafe operation of a vehicle ... and driving under the influence of alcohol or drugs." (17) Washington appealed to the district court, renewing his objections. (18) The district court affirmed, concluding that no violation had occurred because the statements were offered as a basis for Dr. Levine's expert opinion and not for the truth of intoxication. (19)

A divided Fourth Circuit panel affirmed. (20) Writing for the panel, Judge Niemeyer (21) found no constitutional or evidentiary error. (22) The panel held that, to the extent that the computer-generated toxicology data were "statements" at all, they were the statements of the computers and not of the technicians who administered the tests. (23) According to the court, the machine-generated data could not be hearsay under the rules of evidence because "[o]nly a person may be a declarant and make a statement." (24)

Alternatively, the majority held that even if the results were hearsay statements, they "were not 'testimonial.'" (25) Citing Davis v. Washington (26) for the proposition that only "testimonial" hearsay statements are subject to the Confrontation Clause, (27) the court found that since the reports were "'statements' of the machines themselves," they were "not out-of-court statements made by declarants that are subject to the Confrontation Clause. …

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