Public Interest Exception: defendant’s right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. (Maryland v. Craig (1990) 497 U.S. 836, 850.)
Child abuse case, V permitted to testify via one-way closed-circuit television where trial ct made case-specific finding that child would be traumatized by testifying in D’s presence, and child subject to cross-examination. (Maryland v. Craig (1990) 497 U.S. 836.)
The confrontation clause bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.” (Crawford v. Washington (2004) 541 U.S. 36, 53-54.)
For the Confrontation Clause’s bar to apply, a statement must:
(1) Hearsay: be offered for its truth
(2) Formality: have a sufficient degree of formality
(3) Primary Purpose: be made with the primary purpose of at least creating evidence for the defendant’s prosecution or creating an out-of-court substitute for trial testimony.
“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.” (Davis v. Washington (2006) 547 U.S. 813, 822.)
Such statements “are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” (Davis v. Washington (2006) 547 U.S. 813, 822.)
Factors to Consider in determining whether statements made in the course of police questioning were for the primary purpose of creating an out-of-court substitute for trial testimony that implicates the confrontation clause:
(1) an objective evaluation of the circumstances of the encounter and the statements and actions of the individuals involved in the encounter;
(2) whether the statements were made during an ongoing emergency or under circumstances that reasonably appeared to present an emergency, or were obtained for purposes other than for use by the prosecution at trial;
(3) whether any actual or perceived emergency presented an ongoing threat to first responders or the public;
(4) the declarant’s medical condition;
(5) whether the focus of the interrogation had shifted from addressing an ongoing emergency to obtaining evidence for trial; and
Sworn affidavits were “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” AND
“Under Mass. Law sole purpose of the affidavit was to provide evidence at trial.”
Certified lab report detailing D’s BAC is testimonial where testifying witness did not test, review, or observe analysis itself. (Bullcoming v. New Mexico (2011) 564 U.S. 647.)
Phlebotomy checklist doesn’t even have initials, it consists solely of “Xs.” It’s not affidavit, not certified, and no place for the phlebotomist to sign it.
Lab report for drugs tested; includes police case number, D’s name
Listed net weight of substance and “contains heroin.”
Criminalist testing substance & supervisor signed report
Supervisor testified. Did not participate in or observe the testing, had no independent recollection of substances examined. He reviewed criminalist’s report, notes, & data generated. Supervisor was “checking for technical correctness” and to ensure “appropriate work was done.”
Held: lab report constituted testimonial.
Formality
Criminalist signed report
Report contained criminalist’s “substantive conclusions [she] reached as a result of the testing she conducted,” not just machine generated data. (p. 292.)
Primary purpose of report’s preparation was criminal prosecution
Report contained LEO case number
Construed criminalist “acting as an investigative arm of the prosecution” (p. 292.)
Chain of custody log & machine-generated printouts not testimonial. Tech reviewer testified & rendered independent opinion. (People v. Lopez (2012) 55 Cal.4th 569.)
Facts
DUI Lab report included:
Chain of custody log
Handwritten here was D’s name & assigned lab number
Gas chromatograph calibrations
Quality control runs before and after subject samples
Computer generated numerical results of lab analysis of blood sample No. 070-7737 (D’s assigned lab number)
Analyst signed the gas chromatograph calibrations page
Analyst initialed the other pages
Supervisor testified. Gave his own independent opinion of BAC level of blood based on number assigned to blood vial + machine generated results of gas chromatograph test.
Held: Gas chromatograph calibrations, quality control runs, and computer-generated results of lab analysis of blood sample are “machine-generated results.” No confrontation clause violation where such results admitted without testimony of the machine operator. (p. 583.)
Held: notation on chain of custody log linking D’s name to particular lab number is not testimonial
Criminalist initialed this portion of report, did not sign
Portion of report at issue “is nothing more than an informal record of data for internal purposes.” (p. 584.)