'This is Like Deja Vu All Over Again': The Third, Constitutional Attack on the Admissibility of Police Laboratory Reports in Criminal Cases
Edward J. Imwinkelried
University of California, Davis - School of Law
New Mexico Law Review, Forthcoming
UC Davis Legal Studies Research Paper No. 126
It is a commonplace observation that expert testimony is offered extensively at modern trials. This generalization holds true for criminal as well as civil trials. However, crime laboratory experts rarely testify at criminal trials. Crime laboratories are overburdened; and if the courts required such experts to personally appear, their testimony would place an additional strain on the laboratories' resources. Consequently, at trial, the prosecutor ordinarily uses certificates or the laboratory supervisor's testimony to lay the foundation for the expert's report. The courts admit the report as a business entry or an official record.
Over the years the defense bar has mounted three waves of attack on the introduction of crime laboratory reports. In the first wave, defense counsel argued that the reliability of these reports is so suspect that they do not fall within the business entry or official record exception to the hearsay rule. The vast majority of state and federal courts rejected that attack. Next, after the enactment of the Federal Rules of Evidence, counsel contended that the admission of the report ran afoul of restrictions set out in Rule 803(8), codifying the official record doctrine. Again, most courts brushed aside the attack. During both waves, the courts relied primarily on arguments based on the assumption that these reports are substantively accurate and trustworthy.
In 2004, the United States Supreme Court handed down its decision in Crawford v. Washington, 541 U.S. 36 (2004). The Court had previously held that the Confrontation Clause permitted the introduction of prosecution hearsay so long as the hearsay was demonstrably reliable; the prosecution had to demonstrate that the hearsay statement fell within a firmly rooted hearsay exception or bore particularized guarantees of trustworthiness. In Crawford, the Court abandoned the reliability test. Writing for the majority, Justice Scalia announced that the Confrontation Clause forbids the prosecution from introducing testimonial hearsay unless the accused had a prior opportunity to question the declarant and the declarant is unavailable at the time of trial.
Given Crawford, it was predictable that the defense bar would renew its attack on the admissibility of police laboratory reports. The argument runs that since the laboratory analyst realizes that his or her report will be used in plea bargaining or at trial, the analyst is in effect providing testimony against the accused. As in the case of the earlier common-law and statutory attacks, the majority of the most recent decisions reject the defense attack. However, in doing so, for the most part the courts have merely resurrected the prior arguments developed to meet the common-law and statutory attacks. In short, although Crawford makes it clear that reliability is no longer the litmus test, the lower courts still rely heavily on arguments premised on the reliability of crime laboratory reports.
The enclosed article contends that recycling the prior arguments is an inadequate response to the new, constitutional attack on the introduction of police laboratory reports. The thesis of the article is that a finding in a crime laboratory report should be deemed testimonial at least when the expert relied on an interpretive standard with a significant element of subjectivity. In that situation, the defense counsel could conduct meaningful, valuable cross-examination of the analyst. Neither the submission of a certificate nor the appearance by the analyst's supervisor satisfies either the defense need to cross-examine the analyst or the dictates of Crawford.
Number of Pages in PDF File: 38Accepted Paper Series
Date posted: January 3, 2008 ; Last revised: January 16, 2008
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