Home -> Law Blog Directory -> Academic Blogs -> The Confrontation Blog

Academic

: The Confrontation Blog

Thoughts on Melendez-Diaz: The Product of Machines

By Richard D. Friedman

One of the issues addressed by some of the cases dealing with lab reports, and in the span style="font-style: italic;"Melendez-Diaz/span argument, is the status for Confrontation Clause purposes of the output of the machines that do the testing.br /br /As some courts have noted, the output of a machine is not in itself an assertion that can come within the scope of the confrontation right, or of the hearsay rule. Nor are the raw data. But raw data ? the numbers themselves ? are meaningless without being linked to the case.br /br /Let?s say Officer A brings to the lab a sample labeled ?Melendez.? Lab technician B takes the sample, puts it into a machine, and runs a test to determine whether it contains cocaine. When the test is completed, the machine spits out a piece of paper bearing only test results that an expert can testify indicate the presence of cocaine, without any identification of the sample tested.br /br /Now suppose that the prosecution wants to prove its case based only the testimony of Officer A, the printout, and the testimony of an expert that the numbers on the printout reflect the presence of cocaine. This is plainly inadequate: We have sufficient proof that a sample linked to the defendant was brought to a lab, and a piece of paper bearing numbers that, the expert?s testimony indicates, would, assuming they are the results of a test, demonstrate the presence of cocaine in the tested sample. But we don?t have proof that any test was actually performed on the sample linked to the defendant or that the printout reflects the results of that test.br /br /So let?s say technician B wrote an affidavit stating, ?I took the sample Officer A gave me, put it into our machine, and performed a prescribed test for determining the presence of cocaine.? I will call this the span style="font-style: italic;"input proposition/span. B?s statement of the input proposition seems plainly testimonial; it is made with the understanding that it will very likely be used in prosecution of a crime. The affidavit should not be admitted unless B testifies to the input proposition subject to confrontation, at trial if she is then available and otherwise in some other setting such as a deposition.br /br /Even with B?s live testimony that she performed the test, the prosecution?s case is incomplete absent proof that the particular piece of paper presented is in fact the printout of the machine after performing the test on the sample in question. I will call this the span style="font-style: italic;"output proposition/span. Proof of the output proposition could be supplied by B?s testimony asserting it ? but an affidavit stating the proposition is testimonial and should not be admitted absent confrontation.br /br /Now suppose that instead of writing an affidavit asserting the input and output propositions, B types into the testing machine an identification, such as ?Melendez,? and when the machine spits out the test results it includes that identifier at the head of the page. Doing so does not render the printout admissible. In context, typing the name amounts to an assertion of the input proposition. It also amounts to an assertion of an altered form of the output proposition ? altered because the printout does not exist at the time the assertion is made, so the assertion is that the printout that the machine span style="font-style: italic;"will/span produce will be a product of the test on the sample in question. So the fact that the printout generated by the machine bears the name of Melendez does not obviate the need for B to testify. I do believe that incorporating the identifying information on the printout does relieve the prosecution of one potential burden. Suppose B does not stand continuously by the machine during the entire interval between the time she puts the sample in the machine and the time the machine generates the printout. Then absent an identifying mark on the printout she could not say that the printout is the one generated by the test on the sample in question. But if she types in the name, and the name is on the printout, then even if she did not see the printout being generated, I believe she has can testify that this printout is the one for the sample in question: Given the way the machine works, she has effectively tagged the printout by typing the name in.br /br /In the actual span style="font-style: italic;"Melendez-Diaz/span case, it was not a machine printout at all that the prosecution offered, but a certificate based on the machine readings. I think it is very clear that this certificate, obviously prepared for prosecutorial use, is testimonial, and the fact that it reports machine readings does not diminish this fact. Even more clearly than the printout bearing an identifying marker, the certificate is a human assertion prepared for prosecutorial use. Obviously, it asserts the input proposition ? that the sample in question was submitted to the given test. And it asserts a broader form of the output proposition ? not that a machine-generated printout bears the results of the test, but that numbers as described by the writer are the results of the test. The certificate cannot be admitted consistently with the Confrontation Clause unless a witness with personal knowledge ? presumably but not necessarily the author of the certificate ? testifies to both propositions.br /br /A recent opinion usefully summarizing the decisions on this matter, and coming to the proper result, is span style="font-style: italic;"United States v. Crockett,/span a href="http://web2.westlaw.com/find/default.wl?rs=WLW8.11amp;ifm=NotSetamp;fn=_topamp;sv=Splitamp;findjuris=00001amp;cite=2008wl4937029amp;vr=2.0amp;rp=%2ffind%2fdefault.wlamp;mt=Westlaw"2008 WL 4937029/a (E.D. Mi. Nov. 14, 2008). The opinion does not go into as much detail as I have here, but I think its analysis is consistent with that presented here.

Full post as published by The Confrontation Blog on December 18, 2008 (boomark / email).