Crawford and New Jersey-Perfect Together?

In Crawford v. Washington, 541 U.S. 36 (2004) Justice Scalia revolutionized the Confrontation clause by continuing his emphasis on the process of a criminal trial, a revolution begun by Apprendi v. N.J. and Blakely v. Washington. In overruling Ohio v. Roberts he stated

“Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation....[the Confrontation clause’s] ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross examination.” Crawford at 61.

To emphasize his point, Justice Scalia says

“The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial finding of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one.”

The principle evil the Confrontation clause was directed at was the use of ex parte examinations as evidence against the accused; that is, statements made out of court for the purpose of proving a fact in court where the maker of the statement is not subject to cross examination by the accused. Justice Scalia defines the term “witnesses against the accused “in the Confrontation clause as someone who bears testimony. Testimony is defined as “a solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford at 51.

The definition of testimony subject to the Confrontation clause guarantee of an opportunity to cross examine is the crucial part of Crawford. It is a solemn declaration made for the purpose of establishing a fact in court. It does not include mere offhand remarks or excited utterances, Davis v. Washington, U.S. (2006). It does include affidavits, custodial examinations, prior testimony that could not be crossed examined, depositions, and confessions. Note that it is not to whom the statement is made that makes it testimonial, but the purpose of the maker of the statement. If it is a statement made for the purpose of proving a fact in court, it is testimonial. To say it another way, if the document (statement)was prepared in anticipation of criminal litigation, it is testimonial. The state must produce the maker of the statement to be cross examined at trial.

So what documents (statements)does Crawford prevent from being introduced into evidence? Lab reports of CDS or alcohol are easy examples. Lab reports are statements by the technician that the substance tested is CDS or alcohol. To get this into evidence, the state must produce the technician who tested the CDS so he or she can be cross examined. What about the 1000 foot map in drug or alcohol cases? A map is a statement made by the map maker about the location of streets and roads. These particular maps are prepared solely for the purpose of criminal litigation. They are a substitute for the testimony of the map maker. The state must produce him or her to be cross examined to get the map into evidence.

What about the alcotest or the breathalyzer? The certification of analysis of the breath alcohol simulator solution is clearly an affidavit, prepared in anticipation of criminal litigation, which is used as a substitute for the testimony of the laboratory technician who selected the representative samples from the manufacturer’s lot and tested them on a gas chromatograph. It is also a substitute for the technician’s testimony that the machines and tests he used were accurate and properly calibrated, and the procedures he followed in doing these tests were accurate and appropriate. This technician must be produced by the state for cross examination if the state wants to admit the breathalyzer or alcotest readings into evidence.

The state can make the argument that the simulator solution affidavit was not prepared in anticipation of criminal litigation. However, the sole purpose of the alcotest or breathalyzer, the sole reason for the existence of these machines is to test the blood of the accused. This entire machine is prepared solely for the purpose of criminal litigation.

A machine is really a series of statements made by persons with knowledge of the machine. To get any machine into evidence a person with knowledge of the machine gets on the witness stand and tells the finder of fact-the jury-what this thing is, what it does, and how it does it. So the machine is a series of statements by the witness. In the case of the breathalyzer or the alcotest, these statements were made in anticipation of litigation. Crawford requires that for the state to get this machine-it’s result- into evidence, a witness must get on the witness stand and say what it is, what it does, and how it does it. And he must be subject to cross examination. Since it does not matter who the employer of the statement maker is, nor to whom the statement is made, but only the purpose of the statement, the Draeger employees who certify parts of the alcotest must be brought into court to be cross examined.

At first blush this appears to be an impossible burden. At most, however, it would mean that the state would have to hire a coordinator for each municipality. Given the number of DWI cases that will actually go to trial on any particular day, that most courts do not meet every day, and that the testimony of the coordinators will be repetitive, I estimate that the state would have to hire an additional 20 coordinators to meet it’s constitutional burden. Thus it is not constitutionally impossible.

What if the Courts were to find that the alcotest was scientifically reliable? Crawford says such a finding cannot substitute for the process of confrontation. A judicial finding of reliability does not satisfy the confrontation clause. Being subject to cross examination goes a long way toward assuring accuracy. No one wants to look like a fool in court.