Seattle Attorneys Blog
Both the Washington Constitution and the Sixth Amendment to the U.S. Constitution give a criminal defendant the right to confront the witnesses against them. Testimonial statements of a witness who did not appear at trial are only permitted if the witness was unavailable and the defendant had previously had the opportunity to cross-examine them. The Washington Supreme Court recently reconsidered whether the testimony of a supervisor instead of the lab technician who actually performed testing implicated the protections of the confrontation clause.
According to the Court’s opinion, the defendant was involved in an accident that resulted in drug paraphernalia spilling onto the road from her trunk. The defendant was taken to the hospital, so no field sobriety tests were performed. A state trooper went to the hospital and saw that the defendant’s eyes were bloodshot and watery, with dilated pupils. He obtained a search warrant for a blood test.
The blood test showed 1.5±0.40 nanograms per milliliter of TCH in the defendant’s blood.
The state charged the defendant with vehicular assault. A Washington State Patrol Toxicology Laboratory supervisor testified that she had not personally tested the samples, but she had reviewed and signed the lab report. She testified about her training, experience, and knowledge about the Washington State Patrol standard operating procedures. She testified she did not examine and test samples anymore because she was a supervisor, but was responsible for reviewing the work of those who did test samples. The state did not call the forensic analyst who performed the toxicology examination and actually created the report. Although the defendant argued that introducing the test results without the testimony of the person who performed the test violated her rights of confrontation and cross-examination, the court admitted the test results.
The defendant was convicted of vehicular assault.
The defendant appealed, arguing the trial court deprived her of her constitutional right to confront the witnesses against her. The appeals court affirmed the conviction, finding an expert witness could testify about their own conclusions based on data prepared by someone else pursuant to State v. Lui. The appeals court determined the supervisor’s testimony did not violate the confrontation clause because the supervisor “only testified to her conclusion, and not the lab technician’s.”
The defendant moved for discretionary review, but the case was stayed until the U.S. Supreme Court decided Smith v. Arizona. After that decision, the Washington Supreme Court lifted the stay.
The Washington Supreme Court noted it had previously “wrestled with” this issue. In 2004, it developed a test for expert witness testimony and adopted the rule that an expert’s testimony is subject to the confrontation clause if the person makes “a statement of fact to the tribunal” and makes “a statement that tends to inculpate the accused.” State v. Liu.
The Washington Supreme Court also pointed out this issue has recently been clarified in Smith v. Arizona. In that case, a lab analyst performed testing and signed a report outlining her procedures and stating her conclusion. The lab analyst did not testify, but the state instead called a forensic scientist who did not have a prior connection to the case for “an independent opinion on the drug testing. . .” The defendant was convicted and the case ultimately went to the U.S. Supreme Court, which held the confrontation clause “applies in full to forensic evidence” when the witness is not available and the defendant has not had a prior opportunity to cross-examine them. The Court also held that statements by a forensic analyst that is not available and has not previously been subject to cross-examination may not be introduced through another analyst who did not participate in creating them, even if the testifying analyst presents those statements as the basis of their own opinion.
The Washington Supreme Court concluded the report in this case was testimonial. It noted the report “would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” pursuant to Crawford v. Washington. There was nothing in the record describing the analyst’s availability or indicating whether the defendant had a prior opportunity to cross-examine her, so the court concluded she was a “witness” that the defendant had a right to confront.
The confrontation clause only applies to “testimonial hearsay,” so the statements must be offered “to prove the truth of the matter asserted.” The court noted that a statement is admitted for its truth if the expert witness provides the out-of-court statement as a basis for their own opinion and it would only support the opinion if true.
The state argued the supervisor had supervised the analyst’s work and reviewed the sample testing before she approved the results.
The Washington Supreme Court concluded the lab reports were introduced to show that the defendant had cannabis in her system and that contributed to the collision. The supervisor testified about the effects of cannabis and relied on the information provided by the analyst to confirm the results of the testing. She referred to the toxicology report and the items it referenced, describing the tools the analyst used to test the samples. She testified about the test results, that the tests were performed correctly, and that standard operating procedures were followed. The Washington Supreme Court concluded the supervisor’s opinion was admitted for its truth but was predicated on a test report by an analyst who did not testify.
The Washington Supreme Court noted that Smith abrogated Lui to the extent Lui permitted expert testimony by a supervisor relying on factual statements by an analyst who did not testify as the basis for their opinion.
The Washington Supreme Court concluded the defendant’s right to confront the witnesses against her had been violated. The analyst who conducted the testing and created the report “was the real witness against [the defendant]. . .” The appeals court’s opinion was reversed and the case was remanded for additional proceedings.
If you are facing drug, DUI, or related charges, an experienced Washington criminal defense attorney can fight for you to protect your rights. Set up a consultation with Blair & Kim, PLLC at (206) 622-6562.