Patterico's Pontifications

10/26/2007

A Post for Lawyers, or Those Who Play Them on TV

Filed under: General — Patterico @ 7:31 pm



Does it violate the Confrontation Clause to use a crime lab report at trial without calling a witness? Just slap down that report and call it evidence?

The issue is discussed here. I tend to think it does.

But the post seems to imply that you need the analyst who prepared the report to take the stand. That surely isn’t right. Another criminalist who can testify to the report through the business records exception should be good enough. (I’d explain all that to the non-lawyers, but then this wouldn’t be a three-paragraph post, and that’s all I want to write. Hence the post title.)

UPDATE: Thinking on it further, I’m not so sure that the answer to this is clear. For example, in California, we introduce certified printouts of criminal histories with no witnesses. BOOM! Mark it and it’s evidence!

But it is an interesting and potentially complicated question.

24 Responses to “A Post for Lawyers, or Those Who Play Them on TV”

  1. Well, if you’re not putting them in as evidence that the defendant committed a crime, what are you putting them in for?

    nk (da3e6b)

  2. Right.

    I’m surprised any state does this. What is the established exception?

    Patterico (bad89b)

  3. The only analogy I can think of is that these reports are considered the equivalent of a report showing blood alcohol levels in DUI cases. Do courts consider that testimonial or is it admissible as a business record?

    DRJ (207a4b)

  4. The established exception is that you make your monthly car payment to me and I write it down. If I didn’t write it down, it’s evidence you didn’t make it. And I have to be the keeper of the that record to testify to it in court.

    (Bolded part.)

    But I object to the analogy to the non-bolded part too. This is expert testimony, not record keeping.

    nk (da3e6b)

  5. The only analogy I can think of is that these reports are considered the equivalent of a report showing blood alcohol levels in DUI cases. Do courts consider that testimonial or is it admissible as a business record?

    Well. They are admissible as a business record — but you would need a witness to lay the foundation.

    Then again, I just realized that in California, we admit certified printouts of criminal histories without witnesses. I did it just today. Just mark it, and BOOM! it’s evidence!

    I wonder if that’s different somehow.

    Patterico (bad89b)

  6. To me the problem with a chemist’s report is that it’s difficult for a defendant to establish how it was done or to challenge it without a witness. Criminal history printouts can be erroneous but defendants have the knowledge and ability to challenge incorrect content. A chemist’s report is more like like expert testimony, and I don’t see how a defendant can challenge that without a competing expert whose testimony will be speculative at best.

    DRJ (207a4b)

  7. In other words, there’s a reason we have a business records exception and not an expert’s report exception. The question is: When does something become so routine that it’s more like a business record than an expert’s report?

    DRJ (207a4b)

  8. I’ve seen rap sheets get admitted at a preliminary hearing to show a prior theft for a PC 666 or prior DUI’s for a felony DUI.

    At a priors trial, PC 969(b) packet is authorized by the statute if the prison issues the packet.

    Alta Bob (c549e9)

  9. What about the “phony” lab guys with forged degrees, one in West Virginia, I think. Another one out west? I think what you say elevates lab reports to delivered truth, untouchable, never to be questioned. O.J. would be in a California prison if not for the lab guys.

    Criminal histories are records of past events, lab reports are records of analysis of evidence, and the lab reports should be subject to more discussion, (see the judge who just threw out partial fingerprints in a murder case.)

    Of course, I have a bias. I don’t trust anybody. Ever. Especially YOU.

    SkepticalGuy (630569)

  10. I’ve always thought that the business records exception to the hearsay rule has in some states gotten too broad.

    Among the basic underpinnings of hearsay exceptions are that there are cases where the out-of-court statement has characteristics that make it reliable evidence. A “business record” was originally thought to be reliable evidence where an organization kept regular records on something that had to be reliable for the benefit of the organization. But if a record is made for the purpose of being evidence in a criminal proceeding, then we’ve left behind the reason for believing it was reliable evidence – because it is no longer a record that the organization relied upon for its normal business. Instead, it was created for its evidentiary value specifically.

    And that seems to me to be outside the original justification.

    SPQR (6c18fd)

  11. the record itself is unsworn, how do you challenge it? just because business records are a hearsay exception doesn’t mean they’re a confrontation clause exception. another criminalist would be limited to testifying “yeah, that’s joe’s handwriting, i know he’s a good guy.” i can see where the defense might not be satisfied.

    assistant devil's advocate (c67164)

  12. Of course, I have a bias. I don’t trust anybody. Ever. Especially YOU.

    Yes, but we trust YOU. Because you are a guy on the Internet with an anonymous name. What’s more trustworthy than that??

    Patterico (bad89b)

  13. I tried a commercial bench trial last year in which my opponent — a partner at a very well regarded 300+ lawyer firm — was convinced to a moral certainty that if a document had ever resided within one of his client’s filing cabinets, it was admissible as substantive evidence under the business records exception to the hearsay rule. But we had a judge who knew better, and who had due regard for the notion of predicate.

    When my opponent was done, I’d effectively cherry-picked his client’s files — everything I wanted in the record came in without objection, and everything I didn’t want in, didn’t come in. (About one in five of my objections were random and unfounded, just to break the pattern; i.e., by making a few I knew would be overruled, I could make the judge look like he was bein unpredictable.)

    My poor opponent thus ended the trial as baffled as he’d entered it — indeed, he thought the judge was an absolute screwball, since he’d literally never having caught on to the pattern between what got into evidence and what was excluded. The stuff he was offering was uniformly second, third, or even higher level hearsay of the most speculative, opinionated, unauthenticated, and unauthenticatable sort. But he just kept waiving his records custodian affidavits around, wondering why the alchemy that had transmuted lead into gold for him in his other trials wasn’t working this time. (I gather he was used to trying cases against lawyers who had no more of a clue than he did, and/or in front of sloppy judges.)

    If there’s as much subjectivity required to test results as confirming whether the test tubes were clean or the graph paper was loaded properly, that’s expert opinion testimony. That it’s recited within a document that otherwise can be established to be within an exception to the hearsay rule doesn’t make it admissible. You must lay an expert’s testimonial foundation — and therein lies the rub, because even when they have the live witness available, lots of sad shmucks don’t know how to do that when they’re confronted with rapid, accurate, rifle-shot objections.

    Beldar (822001)

  14. Beldar, it can be a pleasure to observe someone with a mastery of evidence law work like that.

    SPQR (6c18fd)

  15. Beldar, it can be a pleasure to observe someone with a mastery of evidence law work like that.

    I agree, SPQR, except if you’re opposing counsel.

    DRJ (207a4b)

  16. I wonder what, if any, effect the recent Duke Lacrosse frame job will have on this? I think you can make a pretty fair case that without being able to cross-examine the guy who did the DNA results that you might have had a different result.

    Skip (217982)

  17. I agree with SPQR. The idea of the business records exception is that contemporaneously maintained records in the course of running a business are likely to be accurate, but that’s because they are considered vital to that business. Crime lab reports (a) aren’t really “records of a business,” because the crime lab really isn’t a business, and (b) exist for no other reason than to assert the truth of their contents in a forensic setting (i.e., the trial). Thus, although I have no doubt that judges (and lawyers) who haven’t thought about the issue have considered them admissible under the business records exception to the hearsay rule, I would not rule that way.

    Voiceguy (f576ea)

  18. I wonder what, if any, effect the recent Duke Lacrosse frame job will have on this? I think you can make a pretty fair case that without being able to cross-examine the guy who did the DNA results that you might have had a different result.

    There was no trial. The problem was the prosecutor hid the results of the testing.

    Alta Bob (c549e9)

  19. An interesting discussion. As a schoolmate of John Houde’s, and having worked the last decade in a defense research laboratory where our work product was derived in a similar fashion to that of a crime laboratory, my initial inclination was to think of our output as “business records,” for the most part.

    Obviously, the more complex the analysis, the more likely it need be explained to a jury; while some things are so routine that they should be self evident.

    However, y’all have convinced me that even the most routine records of technical analysis don’t fall within the business record exception because, as Beldar says, “You must lay an expert’s testimonial foundation…” It could very well be that my secretary is just as capable of performing a certain task, but does she know why she did it that way?

    EW1(SG) (84e813)

  20. DRJ, there is that.

    SPQR (6c18fd)

  21. I have never understood California’s video-taped depositions which are allowed into evidence even though the witness is available to be called as a witness during the trial itself. Seems trial by ambush to me.

    nk (da3e6b)

  22. Aren’t the arrest/conviction records court records/public records? You specifically mention that they are certified–a public functionary of some sort has already put his/her mark on them to vouch for their authenticity and correctness. Which is why they are different from crime lab reports. If you tried to submit the conviction record as a computer printout you did yesterday in your office, the result would be different.

    But face it (I’m sure you know this better than I) a TV program that tried to present a trial with full realism, the audience (or at least that part of it who were not lawyers) would be bored mindless within the first five minutes. The very first lesson imparted to us in law school, was that Perry Mason was the very opposite of how trials worked in reality. (I may be showing my age there.)

    kishnevi (aa1821)

  23. SPQR’s comment #10 took most of the words out of my mouth, so to speak. As did DRJ’s #6 in distinguishing between a crime lab report and a criminal record.

    I just have one thing to add, as a wrinkle on SPQR’s point. In Jewish law there is a rule called “innocent speech” (mesiach lefi tumo), under which a witness who would normally be considered unreliable may be believed if he doesn’t realise the significance of his words. If he makes his statement with no notion that it will be useful as evidence in somebody’s court case, or even that the case exists, then he has no reason to lie.

    It seems to me that the business records exception is an example of “innocent speech”. The person making the record didn’t know that there would ever be a court case to which the record would be relevant. The crime lab report, on the other hand, was prepared for the specific purpose of being evidence in a current case.

    Milhouse (f10fb3)

  24. This is a thorny issue.

    Let’s first differentiate between business records and government records: Government records can come in in California without a witness; business records require a witness.

    California permits, for instance, the results of autopsies to come in if: 1. The pathologist testifies, or: 2. Some other pathologist states that they reviewed the work of the reviewing pathologist, and it looks right. You can do this with drug/alcohol tests, too.

    As a matter of practice, the accuracy rate of these tests approaches 100%. I’m aware of a nearby case where the analyst got the result wrong; I’m aware of a case many years ago when things went very wrong indeed. But it’s exceptionally rare.

    Still, I would have a real problem with requiring only the test results. (I *wouldn’t* have a problem with requiring the defense to notice requirement of a live witness; that would achieve the practical benefit desired without depriving the defendant of rights.)

    One of the reasons, I think, for the good level of accuracy in the results is that the analysts can and are challenged in court. If you stop doing these challenges, there’s no likely finding of that little error you made. From there, testing could get sloppier and sloppier – rather than getting slapped back into shape by an inquiring defense attorney.

    Court records of priors are, I think, fundamentally different. There’s no expert issue there, and they are a government record. We’d have to hire a lot more people to authenticate priors if they had to be authenticated in a different way, and if the defense thinks they are bogus, they can bring in their own witnesses.

    (This never, ever happens. I have never even heard of it happening. I *have* had a defendant bring in an appellate decision overcoming the record of conviction, but that wouldn’t be affected by requiring live witnesses for them.)

    –JRM

    JRM (355c21)


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