The Testing Toxicologist Must Testify Says New York
Yet another court follows the U.S. Supreme Court decision in Bullcoming. Here, a DUI matter with a blood test (interestingly requested by the defendant) required the actual toxicologist who performed the tests to testify. The supervisor who reviewed everything wasn’t able to answer all of the pertinent questions under cross examination.
In People of New York v. Micah Goodreau we see yet another judicial opinion demanding that the charged persons constitutional right to cross examine his or her accusers is more important than the logistical daily operations of the toxicology lab. Here’s what the court said, starting with their review of Bullcoming.
In Bullcoming v New Mexico, ___ US ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011), a DWI defendant’s blood was analyzed for blood-alcohol concentration. The forensic analyst did not testify at the trial, being unavailable because he had been placed on unpaid leave for an unrevealed reason. Instead, a scientist at the testing facility, who had not observed or reviewed the certifying employee’s analysis, testified for the People concerning the report which was then admitted into evidence at the DWI trial. The trial court determined that the report was testimonial in nature, citing Melendez v Massachusetts, 557 US ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) and Crawford v Washington, 541 US 36 (2004). Nevertheless, the trial court admitted the report, finding the admission did not violate the Confrontation Clause because the certifying analyst “was a mere scrivener” transcribing the results generated by the gas chromatograph machine, and because the testifying analyst qualified as an expert witness regarding the gas chromatograph machine.
The Supreme Court reversed, holding that the blood-alcohol analysis reports were testimonial in character, citing Melendez-Diaz, and finding that the Confrontation Clause prohibits “the testimonial statement of one witness to enter into evidence through the in-court testimony of a second person.” Bullcoming, 131 S. Ct., at 2710.[1], [2]
Here, the analyst that performed the test of defendant’s blood did not certify the blood test report that was admitted into evidence. Instead, the supervising Chief Toxicologist, certified in Exhibit 4, pursuant to Criminal Procedure Law Sections 180.60(8) and 190.30(2) that the copy “is a true and accurate report concerning the results of tests and examinations which were conducted at the Monroe County Medical Examiner’s Office, Forensic Toxicology Laboratory under my direction and recorded in this Report number T2010-022.” The document was acknowledge before a notary on February 21, 2010. The Chief Toxicologist, Dr. Beno, then testified at the trial. She testified that she reviewed the raw data and “anything that analyst has completed”, including a summary of the results, and the chromatograms. She reviewed that data and signed off after the analyst completed the sampling. Beno also testified as to how the testing is accomplished by “headspace gas chromatography” using an instrument called a PerkinElmer Clarus 500 Gas Chromatograph and a Turtle Matrix 40 Headspace Analyzer. She also testified about the lab’s procedure on chain of custody, including the assignment of a bar code and case number when a sample is received, but she did not receive the sample and examine it when it arrived at the lab. On cross examination, Dr. Beno testified that she did not individually watch this particular case.
Beno certified Exhibit 4. But, as in Bullcoming, as the testifying witness, she is not the person who performed on the sample “a particular test, adhering to a precise protocol.” Bullcoming at 2715. Thus, she could not answer questions posed by defense counsel about whether the sample was clotted or unclotted or whether the tubes delivered to the lab appeared to be in normal condition when blood was drawn from a tube for the test.
The Supreme Court notes in Bullcoming, that surrogate testimony by a qualified analyst “could not convey what Caylor [the analyst that did the testing] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station.”
Bullcoming at 2715.
2011 NY Slip Op 21466, THE PEOPLE OF THE STATE OF NEW YORK v. MICAH GOODREAU, County Court, Yates County, December 22, 2011.