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Exclude Heresay Evidence Due to Right of Confrontation

MOTIONS IN LIMINE:Other Creative Motions


There is a blood test result in this case. The blood vial was manufactured out of state. Some unknown person at some unknown time apparently put some “stuff” in the vial which was used to collect defendant’s blood. There will be no admissible evidence regarding who measured and placed the alleged preservative and anticoagulant in the vial, when it was done, how it was measured, and other foundational facts. If there is not sufficient preservative, the alcohol in the blood vial can ferment and biological growth occurs, causing a false high result. At most, the prosecution will present hearsay statements regarding the purchase of the blood vials from some out of state manufacturer and what the witness believes that company does.

No one with personal knowledge per Evidence Code section 702 will testify regarding foundational facts. Under Evidence Code §405, the People have the burden of proof of the preliminary facts upon which admission of evidence depends. There is a rule of evidence that preliminary foundational facts must be established prior to introduction of evidence. Otherwise, the evidence is neither admissible or relevant. People v. Herrera (2000) 83 Cal.App.4th 46, 61. Evidence Code §310 states it is a question of law whether the evidence is admissible. If there is insufficient proof of the foundational facts, the court must rule the blood test results are inadmissible.

The facts regarding whether proper procedures were followed and whether minimum scientific requirements were met regarding the required amount of preservative and anticoagulant are critical. Every lab has procedures and protocol for a minimum amount of preservative and anti-coagulant that must be in the vial. The defense has the right to confront and cross-examine the person that measured the materials and test his expertise, qualifications and procedures.


“In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” (U.S. Const. Amend. VI.). This right to confrontation is fundamental and essential to a fair trial in a criminal prosecution. Pointer v. Texas, (1965) 380 U.S. 400, 403-404.) “[A] major reason underlying the constitutional confrontation rule is to give a defendant charged with crime an opportunity to cross-examine the witnesses against him.” (Id. at 406-407.) As a result, “[I]t cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.”(Id. at 404.) In fact:

“There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and crossexamination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal. Indeed, we have expressly declared that to deprive an accused of the right to cross-examine the witnesses against him is a denial of the Fourteenth Amendment’s guarantee of due process of law.” (Pointer v. Texas, supra, at 405.)

In Crawford v. Washington (2004) 541 U.S. 36, our highest court held that:

“If a hearsay statement is “testimonial” in nature, it cannot be used against the criminal defendant unless the declarant is unavailable and the defendant has had an opportunity to cross-examine.” 1

The bedrock procedural guarantee of the Sixth Amendment applies to both federal and state prosecutions. (Pointer v. Texas, (1965) 380 U.S. 400, 406; Crawford v. Washington, supra, 541 U.S. at 42.)

In a recent case, Slovik v. Yates (2008) DJDAR 15438 (October 6, 2008), the conviction was reversed due to a denial of the right to confront witness. Although the facts of that case are different, the court reasoned that the Supreme Court has explained that the right of confrontation means “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” Davis v. Alaska (1974) 415 U.S. 308, 315-16.


The Crawford Court reviewed the historical background to the Confrontation Clause, and specifically the development of the common-law bar against admitting extrajudicial and uncross-examined testimony against a criminal defendant. supra, at 42-50. The Court found that “[t]his history supports two inferences about the meaning of the Sixth Amendment.” supra, at 50. “First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Second, “the Framers would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity/or cross-examination. supra, at 53-54.


The Court held that the Framers – at least where an out-of-court statement is testimonial – did not intend to “leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of reliability.'” supra, at 61. Rather, “[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” supra, at 68-69. In short, “[w]here testimonial evidence is at issue … , the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for crossexamination.” supra, at 68.

Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. Crawford v. Washington, supra, at 39.

. . . Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of “reliability.” … Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of crossexamination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined.

. . . The Roberts test allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability. It thus replaces the constitutionally prescribed method of assessing reliability with a wholly foreign one. In this respect, it is very different from exceptions to the Confrontation Clause that make no claim to be a surrogate means of assessing reliability. Crawford v. Washington, supra, at 62.

. . . The unpardonable vice of the Roberts test, however, is not its unpredictability, but its demonstrated capacity to admit core testimonial statements that the Confrontation Clause plainly meant to exclude. Crawford v. Washington, supra, 541, at 63.

. . . The Constitution prescribes a procedure for determining the reliability of testimony in criminal trials, and we, no less than the state courts, lack authority to replace it with one of our own devising. Crawford v. Washington, supra, at 67.

The hearsay statement, if any, on a document prepared by the manufacturer and provided to the sheriff’s crime lab that the vial was prepared with certain precise amounts of chemicals (whether sworn or not) is an “extrajudicial statement … “a pretrial statement that declarants would reasonably expect to be used prosecutorially.” The Crawford court reasoned a statement is considered testimonial “if it was made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 124 S.Ct. at 1364. Any declaration re the proper amount of preservatives and anticoagulant is a formal statement made to government officials (the Sheriff’s Dept.) in support of a criminal prosecution. Crawford, supra, at 51 defined the term: “‘Testimony’ … is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’”

Although the People might argue that a statement that the vials contain the proper amount of certain chemicals is reliable, the confrontation cause “commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of crossexamination” Crawford, supra, at 61. “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This not what the Sixth Amendment prescribes.” Crawford, supra, at 1371.

Supporting this rule of law are the cases of State v. Berezansky, (2006) 386 N.J. Super. 84; 899 A. 2nd 306; followed by State v. Renshaw, (2007) 390 N.J. Super. 456; 915 A. 2nd 1081 (holding that testimony of the nurse who drew the blood is testimonial in nature and subject to Crawford confrontation rights objection).

In State v. Kent, (2007) 391 N.J. Super. 352; 918 A.2d 626 the court said:

[W]e reaffirm our holdings in State v. Berezansky, 386 N.J. Super. 84, 899 A.2d 306 (App.Div.2006) (ruling that a State Police chemist’s lab report is “testimonial” under Crawford and thus must be excluded unless defendant has an opportunity to crossexamine the chemist), and in State v. Renshaw, (2007) 390 N.J. Super. 456; 915 A. 2nd 1081 (holding that a blood test certificate issued pursuant to N.J.S.A. 2A:62A-11 is likewise “testimonial” under Crawford), particularly in light of the United States Supreme Court’s most recent explication of the Crawford testimonial standard in Davis v. Washington, 547 U.S., 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).

Hinojos-Mendoza v. People, (2007) 169 P. 3rd 662.

Turning to the specific lab report at issue in this case, we hold that it is testimonial. The lab report was prepared at the direction of the police and a copy of the report was transmitted to the district attorney’s office. There can be no serious dispute that the sole purpose of the report was to analyze the substance found in Hinojos-Mendoza’s vehicle in anticipation of criminal prosecution. The report states “offense: 3530 — cocaine — sell” and lists Hinojos-Mendoza as the suspect. Moreover, the report was introduced at trial to establish the elements of the offense with which Hinojos-Mendoza was charged. Under such circumstances, the lab report is testimonial in nature. Crawford, 541 U.S. at 52 including in the core class of testimonial statements those made under circumstances “which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”) (internal quotation omitted); Thomas, 914 A.2d at 12-13 (same); Caulfield, 722 N.W.2d at 309 (same); March, 216 S.W.3d at 666 “A laboratory report, like this one, that was prepared solely for prosecution to prove an element of the crime charged is ‘testimonial’ because it bears all the characteristics of an ex parte affidavit.”).

A statement re the amount of preservative and anti-coagulant is testimonial because it is a statement made as evidence for litigation. See, e.g., City of Las Vegas v. Walsh (Nev. 2004) 91 P3d 591 (nurse’s chain-of-custody affidavit concerning method of conducting and preserving blood alcohol test is testimonial). People v. Rogers (N.Y.App. June 24, 2004) WILLIAMS 1405875 in which report of blood is testimonial.

There is also a due process right to fair trial. By analogy, Evidence Code, section 712 deals with an affidavit of the method used in taking blood samples but in such a case the prosecution must give the affidavit at least 10 days prior to trial and the opposing party can still object at the time of trial.

The “statement,” if any, of a representative of the manufacturer functions as the equivalent of in-court testimony, i.e. “I’m qualified. I know the chemicals, I made a batch of preservative and anti-coagulent, and I used proper procedures to measure the chemicals.” This out of court statement differs from notes of a biologist working under the supervision of a lab director that actually testifies in court regarding testing and results based upon the employee’s notes, protocol, data and report. There is no supervisor or other witness that can testify to the protocol forms, data, notes, or reports of the manufacturer of the vial.

The U.S. Supreme Court in Melendez-Diaz v. Massachusetts, 07-591 on March 18, 2008 “agreed to decide if forensic lab reports can be introduced at trial if the lab expert is not made available for cross-examination by the defense.” See Exhibit “A,” article from the Los Angeles Daily Journal of March 18, 2008.


The Court should exclude any testimony regarding the alleged amount of preservative and anti-coagulant in the vial unless the prosecutor presents a witness that can be crossexamined on how the materials were measured and whether proper procedures were followed in making the substances. Further this Court should not allow the blood test results into evidence unless the people can lay a proper foundation, i.e., that proper and necessary procedures were followed so that the blood test result is accurate. If there is insufficient proof of the proper amount of preservative and anti-coagulant in the vial, a blood test result is not considered accurate. If there is insufficient proof of accuracy, the test result is not admissible.

1 Overruling Ohio v. Roberts (1980) 448 U.S. 56 and that hearsay is permitted when it fell under a firmly rooted exception “or was trustworthy” because that test “often fails to protect against paradigmatic confrontation violations.” Crawford, supra.