United States Supreme Court Case Requires The Right To Confront Witnesses Even In DUI Cases.
Last month the United States Supreme Court (USSC) took another anticipated step in preserving one of the most fundamental and important rights that an accused person is afforded under the Constitution of The United States. The recent case issued by the USSC of Bullcoming v. New Mexico followed in the path of Crawford v. Washington, 541 U. S. 36, 59, and Melendez-Diaz v. Massachusetts, 557 U. S. ___, in clearly defining the right of confrontation, and in so doing, also defining the obligation of the prosecuting authority in every criminal case. Unlike many cases that are decided by the USSC, Bullcoming was a case of DUI.
The facts of the case are somewhat unimportant, as the “meat” of the case was the fact that the lab analyst who conducted the blood alcohol test that Mr. Bullcoming submitted to was unavailable for trial. In place of the original analysts, a different analyst testified from the report that the first analyst created as the blood was tested. While the substitute analyst had knowledge about what should have been done, or what was usually done, he had no knowledge of what was actually done.
In blood test cases, there are scientific and state policy and protocols that must be followed in order for the results to be admitted and shown to a jury. The inability to determine what was actually done precluded Mr. Bullcoming from confronting the witness. As described by the USSC:
The analysts who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” [The substitute analyst was not an] adequate substitute witness simply because he qualified as an expert with respect to the testing machine and the laboratory procedures. Surrogate testimony of the kind [the substitute analyst] was equipped to give could not convey what the actual analyst knew or observed about the events he certified, nor expose any lapses or lies on his part. With the actual analyst on the witness stand, Mr. Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for his removal from work [and thus his unavailability for trial]. The State did not assert that the substitute analyst had any independent opinion concerning Mr. Bullcoming’s blood alcohol content. More fundamentally, the Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another persons testimonial statements provides a fair enough opportunity for cross-examination. Although the purpose of Sixth Amendment rights is to ensure a fair trial, it does not follow that such rights can be disregarded because, on the whole, the trial is fair.
The case is now the highest authority in the land on the issue of confrontation and serves as the new “floor” when it comes to the right to Confront witnesses and what this actually and practically means. Typically, in Washington State a Federal Constitutional right is given even a higher level of protection under the more protective State Constitution. While the Washington State Supreme Court has built upon the prior USSC cases involving and preceding this new case of Confrontation, Bullcoming has now, and once again raised the protective bar accordingly.
Bullcoming permits no substitutes when it comes to confronting ALL witnesses against an accused and this is important in every criminal case, but especially so for DUI cases involving blood tests as well as breath test cases. The importance of the case in a blood case is fairly straight forward: the testing person must be present for the trial unless they were previously confronted at a pre-trial hearing.
With respect to the breath testing the right to confront under Bullcoming is equally operational but it will likely require an Appellant Court to settle the matter despite the fact that the implications are clear to the defense bar. In a DUI prosecution with a breath test, there must be a showing that a breath test machine’s external simulator solution is prepared by a toxicologist. In order to make sure that the solution is certified under lab protocols several other toxicologist must also test the solution. The State and City DUI prosecutors typically call just one of those who had a hand in only the testing phase and not the actual person who created it. They argue against Bullcoming by stating that the multiple testing of the solution and the presence at trial of one of these testers who the defense can, in fact, confront is good enough and distinguishable from Bullcoming.
This is because it is a rare case that the person who ACTUALLY created the solution is present at trial. From the defendant’s Confrontation standpoint, Bullcoming holds that the creator of the solution is required to be there in order to test that person’s veracity, demeanor, and to some extent competence in their creation of the solution. While the solution is easy to prepare, it can be prepared in a manner that is NOT consistent with the required lab protocols and the subsequent testers have no personal knowledge as to how it was actually created. In addition to this, the secondary tests of other analysts would not indicate whether there was any deviation in the preparation. As a result the actual person who prepared the solution needs to be confronted by the accused.
While Bullcoming is apparent and clear to a defense attorney like myself, the lower Court’s typically do not like to stray beyond the rule of law that is clearly on point and therefore convincing the lower bench of this requirement when it happens will be challenging. In fact,that is my personal experience recently. As a result, the objection to the lack of Confrontation and the argument will need to made over and over until someone appeals a final verdict against a defendant and then the Appellant Courts will weight in on the matter.
This was the case in Redmond v. Moore. While that was not a case in response to a Court of higher authority, the attorney’s made the argument over and over and over and were denied repeatedly, until the denial of the motion and argument was appealed Only on appeal was the argument agreed to and then endorsed by the higher Apppellant court. In response to that court ruling the lower courts now had clear authority to enforce the issue and argument and the Department of Licensing was ordered to change their ways had to revamp the method in which it proposed to suspend a person’s driving privilege.
This comment and analogy is not an indictment of the lower courts. In fact their reluctance to step out on a limb and make new law is understood as nobody likes to be actually stray from the established status quo and risk reversal. However, that is the job, as it is the job of defense attorneys to make the argument, to expose the logical legal flaws, to point out the fact that another similar case came to a opposite conclusion, and to present an age old scenario in a different light. Progress in the law is made the same way progress is made in society and technology: a new idea on an old issue.
A defense attorney’s role is typically criticized for creating “loopholes,” or generating the flaws in the law when the reality is we are charged with the duty of protecting clients rights, and if the right to Confront is watered down it is up to us to point it out and argue against it tirelessly until someone recognizes that doing things the same old way, because it has always been this way, is no excuse. As stated by the Court in Bullcoming when quoting another case: “it does not follow that such rights can be disregarded because, on the whole, the trial is fair.” The right itself needs to be respected, otherwise what worth is it?
Jonathan Rands is an experienced, dedicated, and tenacious DUI lawyer with proven DUI defense success. The right to Confront all witnesses is an important right that effects each and every DUI case where there is a breath or blood test measuring alcohol concentration. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com | Phn. 360.306.8136 | Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI every other Sunday on the Legal Docket.
Criminal Defense Attorneys Are Not All That Bad When Prosecutorial Misconduct Exposed.
Ever since I was a young man and decided to be a lawyer those who knew, or asked this standard “occupation” query of any young person, there were always 2 more questions to follow: 1) What kind of lawyer do you want to be? And when the answer i gave was “criminal defense,” the second question always followed; “but how can you defend someone who is guilty?” The answer from me was always very simple and quick to leave my lips: “everyone is innocent until proven guilty.” Until a jury of peers renders a guilty verdict, a person is, in fact innocent. The defendant is quiet simply Not Guilty. Not only that, but many, and all to often those charged with a crime are in fact innocent, yet found guilty due to the “guilt” of others in the system. they are a form of collateral damage. It is the guilt of those who prosecute, that create this damage. By virtue of their failure to adhere to ethic’s, their failure to investigate, and sometimes their failure to simply present ALL facts; good and bad for their case. Not every prosecutor is guilty of this, in fact the vast majority are very ethical, but even 1 in our system is too many.
Recently a story was run in USA TODAY (http://www.usatoday.com/news/washington/judicial/2010-09-22-federal-prosecutors-reform_N.htm?POE=click-refer). The story documents the failures and ethical lapses above. Specifically, in the headline case a man was convicted of a crime he did not commit because the prosecutors handling the case did not let the jury hear all the facts. The prosecutors intentionally covered up evidence that discredited many of the defendant’s accusers; they failed to revealed that their eye witness struggled to identify the defendant’s photograph; and they hid the fact that promised were made to other witness in exchange for their cooperation. These types of facts are required to be disclosed all defendants in every case. These issues are called “exculpatory” evidence, meaning evidence that tends to disprove the prosecutors case. While the lawyers for the defense do not need to be spoon fed the information, the fact that it is exits does need to be disclosed. It is these ethical lapses that get in the way of the system working properly. It is these prosecutors who are blinded by the goal of winning who seek only a conviction, rather than the truth and justice, where the problem lies. it is started with the attitude of “because i can” that begins this harmful process. Attorneys are responsible for adhering to a code of ethical conduct and the failures of these sorts are the most egregious.
As explained in the story, these abuses have put innocent people in prison, set guilty people free and cost taxpayers millions of dollars in legal fees and sanctions. While Judges around the nation have warned for decades that misconduct by prosecutors threatens the Constitution’s promise of a fair trial, this behavior still exits despite the Congressionally enacted law aimed at ending such abuses. From the average citizen’s tax paying perspective, the prosecutors are the lawyers who are supposed to be working for the citizen’s and in so doing also supposed to uphold the law, ethics, and the US Constitution. In situations like this each and every one of those requirements was disregarded, broken, and violated beyond belief. In this instance, the prosecutor were criminal because their actions stole a US citizen’s most precious right: freedom.
These types of misguided attempts are not rare, as others in the justice system routinely cut corners and use the explanation and justification of their actions with stating that “it doesn’t really matter because they are guilty.” Admittedly, some shortcuts may not affect the end result but system cannot be short cut that way. When there are rules they are exist for the protection of not only the accused, but they protect the citizen’s who look to and rely on the system. In the case above, far to many resources were expended upon making a man look guilty when he was in fact not. They wasted resources to hide the evidence and facts that contradict their interest and seek to convict a person who in fact was NOT GUILTY. While all this was being manufactured, the true culprit escaped a charge. Rather than follow the rules and investigate, prosecute, and let the chips fall where they may, these prosecutors looked only for a “W” rather than simply presenting the facts.
This attitude from these types of prosecutors is infectious and eats away at the principals of the system and ultimately leads by bad example. Consider the recent crime lab problems that are beginning to surface in the news and headlines that exposed such behavior this past summer that were discussed in this forum . Washington DC, Alaska, and yes here in Washington state where the crime lab was found to harbor these very troubling short cuts all under the defense of “well it is so insignificant that it does not matter.”
When these attitudes surface, when these types of prosecutions are engineered, when these types of prosecutors are exposed for what they are, others are likewise exposed because the problem is not isolated. Consider the links above and these crime labs that create otherwise non-existent evidence were exposed for what they are: actors looking for a win.
So I look back on the answer I gave as a young man and remember my answer and add to it: “everyone is presumed innocent and is entitled to a FAIR trial. A trial that is not engineered to circumvent the very basic rights our system of justice is founded upon, a fair trial because the end result is not a forgone conclusion. While these may be simplistic, they are after all basic rights of everyone. In this day and age where some prosecutors, law enforcement, and crime lab personnel are all too quick to take a short cut, exposing these shortcuts and providing my clients with the best defense possible means challenging their evidence, presenting the best evidence available, and the findings things that many say does not matter. In the end, what is said to not matter, can mean Not Guilty.
Jonathan Rands limits his criminal defense practice to those charged with the crime of DUI, or other alcohol related charges. These charges almost always involve scientific principles as a result of breath testing. These charges also rely upon “sobriety tests” that are also said to grounded in science but only a DUI defense attorney highly trained in both these areas who possesses the skill and creativity to expose the limitations of this “evidence” can provide a successful defense to those charged with a DUI. Jonathan Rands is an experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. He has been apart of every major breath test challenge in the various courts where he practices in the last 8 years. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
3 Judge Panel Requires Breath Test Evidence To Comply With Scientific Standards.
Yesterday, September 22, 2010, a King County District Court 3 Judge panel found that breath tests, previously held to be inadmissible for any purposes, opened the door to permitting the test once again. However, before they can be admitted the Judges required that uncertainty must be provided in discovery and to the jury or, upon motion, the breath test results will be suppressed. In the Court’s Decision the Judge’s wrote:
For the reasons stated below, we hold that historic standards of justice – contained in the federal constitution, case authority and court rules – require that the State present breath test readings, both in pretrial discovery and at trial, showing their true value, rather than wrapped in such a way that a false picture is presented, either to the defendant or to the trier of fact.
Without this evidence a breath test is NOT admissible for the reasons stated in the 31 page decision for a very simple reason: “absent a confidence interval, a “final” breath-alcohol measurement is only a “best estimate” of a person’s breath-alcohol level.”
The press, the opposing prosecutor, and other commentators have pointed out that the ruling is not founded upon tradition rules regarding the breath test evidence and they are absolutely right.
This decision was predicated upon something much more significant and important: “standards of justice.” This is not a novel concept and to those of us involved in the litigation for the past 5 years neither is this ruling. In fact this ruling is very similar to other jurisdictions where this issue has been challenged and argued.
Most recently Island County District Court, and Skagit County District Court have both arrived as similar conclusions and in simple terms require the State to produce the “uncertainty” calculations because failure to do so shrouds the breath test result in the aura of science and juries can easily be misled.
Those who have opposed the notion of providing the uncertainty calculations do so because they say it doesn’t matter except in those cases where the breath test result is in the .08 range. However, despite this concession, opponents of uncertainty were still unwilling to provide the information because in so doing, the limitations, the internal bias, and the sample bias are all exposed for what they are: a guess.
The Constitutions of this State, and of this Country, both entrench one of the most important rights we have that makes us a free society: Proof beyond a reasonable doubt. Failure to provide information that shows the machine’s fallibility, bias against subjects, and blood alcohol estimate that is scientifically unsound and only samples breath that is the size of a golf ball violates the principal.
Interestingly enough, it is the advanced nature of the State Toxicology Laboratory that has led to this ruling: Since the lab has the technology and personnel with the necessary education to compute the uncertainty calculation the scientific community demands the production of this information so that the scientific evidence can be scrutinized. The rule of law requires adherence to scientific principals established by the community when the Prosecution seeks to use the evidence to take a person’s liberty. In fact, the 3 Judges recognized this principal and quite frankly set the record straight on page 2 of their ruling where they wrote:
[b]ecause the subject matter of this opinion is so heavily steeped in scientific principals and procedures which are largely unknown to the Judiciary and the Bar, the Court is including in the Findings explanations and definitions of many of the principals involved.
With this ruling now in the books it is expected that many jurisdictions around the state will follow this rule for purposes of determining whether a breath test in a DUI prosecution in any given county in Washington will in fact be presented to a jury.
Currently, in Whatcom County, this motion has been presented to the District Court in a DUI prosecution and both myself and the State Prosecutor as well as all criminal defense attorneys, more specifically DUI defense lawyers in the county await a ruling that is rumored to be close to being complete. Also, in DUI cases prosecuted by the City of Bellingham, it has been agreed that the transcripts from this King County hearing will be relied upon for purposes of answering the same question of breath test admissibility. As a result of this now public King County decision there is a possibility that the Bellingham City Prosecutors and DUI lawyers for all DUI breath test prosecutions will also agree to abide by this well reasoned ruling.
This ruling, and the rulings in Skagit, Island, and hopefully Whatcom Countys, is the product of years of litigation in various courts around the State. Regardless of what your personal feelings are towards the crime of DUI, as a person who resides in this State and Country, these decisions are something to be proud of, these decisions are hallmarks of our system of justice that require the best possible evidence in seeking a conviction. All too often the rhetoric, the skewed statistics, and even the pain as a result of a crime having been committed gets in the way of system of rules that are required to be followed. While I believe no one in their right mind advocates for drinking and driving per se and the best evidence I can ever give to avoid a DUI is not some gimmick, but rather it is simple: “Don’t drink and drive.” But this does not change the fact that mixing the two is NOT necessarily a crime and is in fact legal in this State.
However, if you disagree with the law; Vote to change it; Move to a state or a Country where you agree with the law; but as long as this State permits drinking and then driving unless or until a person reaches, or exceeds the .08 limit, or is affected by their alcohol consumption, the State MUST and IS now is being held to the most important law that our system historically recognizes: “standards of justice.” It is these standards together with scientific rules, regulations, and other principals of law combined with the intellectual honesty of Judges like these 3 in King County, the 2 in Skagit, and the 1 in Island County that makes this the best system of justice available. Bravo Judges.
Jonathan Rands is an experienced, dedicated, and a tenacious DUI lawyer with proven DUI defense success. He has been apart of every major breath test challenge in the various courts where he practices in the last 8 years. If you or someone you know is facing a DUI or alcohol related arrest, contact Jonathan Rands | http://www.jrandslaw.com | Email: jrands@jonathanrands.com| Phn. 360.306.8136| Jonathan Rands is Focused On Your DUI Defense. | Serving Whatcom, Skagit, Island, and San Juan Counties. | Jonathan Rands regularly discusses DUI issues with (AM 790 ) KGMI’s Tracy Ellis every other Sunday on the Legal Docket at http://www.kgmi.com/pages/7015350.php
