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The Constitution is Eroded Again

By Andrew Mishlove on April 27, 2015


The DUI Exception to the Right to Confront Your Accuser

Back in 2007, I represented a gentleman named Michael. You may have heard his full name, if you follow the news. But for his privacy, I won’t repeat it here. Michael was accused of a DUI back in 2007. I fought it for him, at the trial level. A wonderful attorney, Trisha Bushnell, of the Innocence Project, fought for him on appeal, and continues to do so. The case is about the fundamental Constitutional rights of an accused to see the witnesses in court, and have them questioned.

The Confrontation Clause of the Sixth Amendment to the United States Constitution states that "in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him."

This means that a person should not be convicted of a crime, unless that person has had opportunity at trial to question the accuser, in person. It is a very basic principle of criminal law. We have all seen cases where the testimony of a witness, however strong at first glance, is debunked on cross-examination. In fact, its hard for us to imagine a trial where the witnesses do not have to appear, nor be questioned.

But in the crazy world of drunk driving prosecution, that is just what happened.

Although the state claimed that Michael had a blood test result over the legal limit, they did not produce the analyst who, supposedly, came to that conclusion. So, they substituted a different analyst for her at the trial. We never got the chance to confront and cross-examine the person who inspected Michael’s blood sample, prepared the sample, did the record keeping regarding the sample, and did the analysis. Instead, the state had the substitute analyst read the lab records of the first analyst; and, he then came to an “independent” conclusion about the blood test --- about a sample that he had never seen, and an analysis of which he had no personal knowledge.

All of the Wisconsin courts that looked at it saw no problem. After all, they reasoned, the substitute analyst read the laboratory records and formed an independent opinion about the blood test result, based on the raw data from the blood test machine? Since the blood test machine’s calibrations were tested before and after Michael’s test, there should be no problem. What’s wrong with that, reasoned the court? Isn’t this similar to a situation where a doctor forms an opinion, based on a lab test done by a different doctor (which is a common situation in medicine, and in civil cases)?

In my opinion, there is a lot wrong with that.

dui-exceptionFirst, the Constitution says otherwise. It says that an accused in a criminal case must be allowed to confront his accuser. The Constitution does not talk about confronting an accuser only when it is convenient, or when the witness is available, or when the rules of evidence in civil cases require it. It should not be the business of the courts to rewrite the meaning of the Constitution, just because they do not think it is practical, or useful.

Second, there are things about a blood test that only the specific analyst would know. What was the condition of the sample when it arrived? Was it spoiled? Did it smell bad? Was it leaking? Was there evidence of non-sterility or contamination? These are things that can cause a false high test result; as a contaminated sample can ferment. The courts reasoned that because no analyst remembers any specific sample, as they handle so many samples, that these questions did not matter. This reasoning falsely assumes that the procedures used by the first analyst are the same as those used by the second analysts. For some steps of the process that is true. But, the surprising truth is that for many steps in the process, each analyst has different patterns of practice. Each analyst has personal habits and practices regarding how to handle samples, how to record samples, how to determine which samples are suitable for testing, and so on. No substitute analyst can testify about how the customary practices of the first analyst.

Third, analysts can be careless and make mistakes. By denying a criminal defendant the right to question the actual analyst who tested the blood, the jury cannot determine whether or not to trust the work of that analyst. In Wisconsin, and in other states, analysts have been known to even mix up blood samples, reporting one person’s result under another person’s name, due to carelessness.

Finally, analysts are not necessarily honest, and results can be falsified. In Massachusetts, an analyst named Annie Dookhan lied about the results of thousands of tests. This went on for years, and it would never have been discovered, but for the Constitutional right to question her, and her work. Thousands of cases had to be re-heard, and Annie Dookhan went to prison. Every criminal defendant should have the right to challenge not just the competency, but also the honesty of an accuser. The Dookhan case is notorious, but not necessarily isolated. Falsifying lab results is common enough that there is a slang term for it in the field of chemistry: “Dry-labbing.” In the Dookhan case, she faked the calibrations for her analyses, in order to save time. That could happen in any case. It may also surprise you to know that there are functions in the software that runs the blood test computers called “manual integration.” A dishonest analyst can use this software to falsify results, or at least cover-up sloppy work, by changing the parameters of the analysis.

I know that Trisha Bushnell and the Innocence Project will continue to fight this in the federal court system. They have done an excellent job. I hope to be sitting in the lawyer’s well at the United States Supreme Court, when Ms. Bushnell argues Michael’s cause; because it is actually a cause that protects all of us.

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