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2 justices dissent in DUI appeal citing Sixth Amendment violation

On behalf of Dolan + Zimmerman LLP March 8, 2019

An interesting question came before the U.S. Supreme Court recently. In Stuart v. Alabama, a woman was charged with DUI and criminally negligent homicide for rear-ending another driver’s car, causing it to strike a tree and kill the driver. Prosecutors submitted a lab report to prove the woman was under the influence of alcohol, but they did not ask the scientist who performed the tests to testify. Under the Sixth Amendment, however, criminal defendants have the right to confront all of the prosecution’s witnesses.

The high court declined to review the case, but two justices — Neil Gorsuch and Sonia Sotomayor — issued a written dissent to that decision. Writing for the pair, Gorsuch pointed out that the Supreme Court previously ruled in Bullcoming v. New Mexico that lab reports cannot be introduced at trial unless accompanied by the testimony of the person who created the report. The Sixth Amendment guarantees defendants the right to cross-examine every witness, and you can’t cross-examine a lab report.

The question here was slightly different than Bullcoming because the prosecution did provide a witness — just not the actual person who performed the test. Instead, another state analyst was brought in to interpret the report. That analyst, however, had no way of knowing precisely how the tests had been performed, whether any issues had cropped up, or whether the testing equipment had been calibrated, for example. To get answers to those questions, the defendant needed access to the analyst who actually performed the test.

“The state effectively denied Ms. Stuart the chance to confront the witness who supplied a foundational piece of evidence in her conviction,” wrote Justice Gorsuch.

Forensic evidence plays a decisive role in the criminal justice system. Adversarial testing and cross-examination, Gorsuch argued, are crucial to preventing erroneous or manipulated evidence from creating mistakes and false convictions.

The State of Alabama argued that the lab report was not testimonial in nature — that it merely provided a basis for the alternate analyst’s testimony and not a statement of the truth. The dissent skewered that argument, noting that “the whole point of the exercise was to establish — because of the report’s truth — a basis for the jury to credit the testifying expert’s estimation of Ms. Stuart’s blood-alcohol level hours earlier.”

While the Supreme Court’s denial of review leaves the Alabama court’s ruling intact, this dissent puts prosecutors on notice. Two justices from opposite ends of the political spectrum agree that the actual author of any lab report must testify and be subject to cross-examination or the report may not be admitted into evidence.