California Tackles Substitute Analysts Post-Williams

In a paper here I analyze Williams v. Illinois, the U.S. Supreme Court’s latest confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale garnered five votes, it didn’t answer a lot of questions. Three companion cases recently decided by the California Supreme Court show how one court is dealing with the issue post-Williams.

In the first case, People v. Lopez, 286 P.3d 469 (Cal. 2012), the defendant was charged with vehicular manslaughter while intoxicated. To establish the defendant’s intoxication, the prosecution introduced into evidence—over objection—a laboratory report done by Jorge Peña of the Crime Laboratory indicating the percentage of alcohol in the defendant’s blood sample. Peña did not testify at trial. Instead, the prosecution offered Peña’s colleague, John Willey, who had reviewed the report. Willey had worked at the lab for many years, knew its procedures, and had trained Peña. Willey testified—again, over objection—that Pena used a gas chromatograph to analyze the sample and that the report stated that it contained an alcohol concentration of 0.09 percent. Willey added that based on his own “separate abilities as a criminal analyst,” he agreed that the sample’s blood-alcohol concentration was 0.09 percent. The defendant was convicted and appealed, asserting a confrontation clause violation. The California Supreme Court upheld the conviction.

The Lopez court determined that under U.S. Supreme Court law, a statement is testimonial when it is made with some degree of formality or solemnity and its primary purpose pertains to a criminal prosecution. Id. at 477. The court noted disagreement among the high Court’s members regarding what it means “to pertain to a criminal prosecution,” but found it unnecessary to resolve that issue in this case.

The Lopez court noted that Peña’s report included six pages. Page one was a chain of custody log. Page two was a printout of the gas chromatography machine’s calibrations on the testing day. Pages three and six were quality control runs before and after the samples. Pages four and five showed two computer-generated results of the analyses of the defendant’s sample. The court described pages two through six as “consist[ing] entirely of data generated by a gas chromatography machine.” Id. at 478. Although Peña signed page two and the initials “JRP” appear on the other pages, “no statement by Peña, express or implied, appears on any of those pages.” Id. As to pages two through six, the court concluded:

Not yet considered by the United States Supreme Court is whether the prosecution’s use at trial of a machine printout violates a defendant’s right to confront and cross-examine the machine’s operator when, as here, the printout contains no statement from the operator attesting to the validity of the data shown. We agree with those federal appellate courts that have upheld the use of such printouts. . . . Because, unlike a person, a machine cannot be cross-examined, here the prosecution’s introduction into evidence of the machine-generated printouts . . . did not [violate the confrontation clause].

Id. at 478 (citations omitted).

Turning to page one, the court noted that lab assistant Brian Constantino completed the chain of custody chart, logging the defendant’s name, the sample’s lab number, and when it was collected and received. It was undisputed that Constantino’s notation linking the defendant’s name to the tested sample was admitted for its truth. Thus, the critical question was whether that notation was testimonial. The court concluded that it was not. It noted that while Peña and Constantino initialed the chart, “neither . . . signed, certified, or swore to the truth of the contents,” and thus the notation “is nothing more than an informal record of data for internal purposes” that was “not prepared with the formality required . . . for testimonial statements.” Id. at 479. The court went on to distinguish Melendez-Diaz on grounds that it involved certificates sworn to before a notary and Bullcoming on grounds that it dealt with lab results formalized in a signed document expressly referencing court admissibility rules.

In the second case, People v. Dungo, 286 P.3d 442 (Cal. 2012), the defendant was convicted of murder. Dr. George Bolduc performed an autopsy on the victim’s body and prepared an autopsy report, indicating that the victim died of strangulation. Bolduc, who had been fired as a county coroner, perhaps because of incompetency, did not testify at trial. Instead, the prosecution offered forensic pathologist Robert Lawrence. Lawrence relied on Bolduc’s autopsy report and accompanying photographs to describe the victim’s body. Lawrence then opined that the victim died of strangulation. Neither the autopsy report nor the photographs were admitted into evidence. Turning to the confrontation issue, the court noted that unlike in Lopez, here the underlying report was not introduced into evidence. Additionally, Lawrence never described Bolduc’s conclusions regarding cause of death. He did however describe the condition of the victim’s body (hemorrhages in eyes, purple face color, etc). Thus, the central issue was whether Lawrence’s testimony “about these objective facts” reported by Bolduc violated the confrontation clause. Id. at 535. The court concluded that no confrontation violation occurred because Bolduc’s statements describing anatomical and physiological observations of the body were non-testimonial. The court rejected the defendant’s argument that the statements in Bolduc’s report were sufficiently formal. The defendant noted that a detective attended the autopsy, the autopsy was statutorily mandated, Bolduc was statutorily required to report his findings and notify law enforcement if the death was a homicide, and a detective told Bolduc that the defendant had confessed. The court found these circumstances irrelevant to formality or solemnity. Turning to the issue of primary purpose, the court concluded that criminal investigation was not the primary purpose for the autopsy report’s description of the victim’s body, but rather was one of several purposes, including providing information for use in a wrongful death action and for insurance purposes.

The third case, People v. Rutterschmidt, 286 P.3d 435 (Cal. 2012), is interesting mainly because it involved two elderly women who took out life insurance policies on men and then killed them for the insurance money. Although a substitute analyst issue was raised, the court didn’t reach it, concluding any error was harmless beyond a reasonable doubt.

The North Carolina appellate courts have yet to tackle head on substitute analyst testimony post-Williams. When they do, I’ll be sure to write about it.