The late Justice Ginsburg continued on behalf of the 5-4 majority of this plurality opinion in relevant part: If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness Caylor’s certification reported more than a machine-generated number: It represented that he received Bullcoming’s blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming’s sample, adhering to a precise protocol; and that he left the report’s remarks section blank, indicating that no circumstance or condition affected the sample’s integrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination.
The potential ramifications of the state court’s reasoning, therefore, raise red flags. Most witnesses testify to their observations of factual conditions or events. Where, for example, a police officer’s report recorded an objective fact such as the readout of a radar gun, the state court’s reasoning would permit another officer to introduce the information, so long as he or she was equipped to testify about the technology the observing officer deployed and the police department’s standard operating procedures. As, e.g., Davis v. Washington makes plain, however, such testimony would violate the Confrontation Clause.
Justice Ginsburg provides a roadmap for potential avenues of cross-examination. Depending on the direct testimony, some of those avenues might be avoided and saved for summation. This is because the burden of proof beyond a reasonable doubt in a criminal or quasi-criminal DWI trial is on the prosecution. If the witness did not testify to the relevant procedures, drawing his attention to them during cross-examination might encourage him to fill in the gaps in the State’s case. Noting the lack of proof during summation could therefore be the better trial strategy.
