The topic partially begins with a case decided by the 4th Circuit in 2007, United States v. Washington, 498 F.3d 225 (4th Cir. 2007). In Washington, the defendant was pulled over for allegedly erratic driving and thereafter was taken to a hospital where he consented to a blood sample. The sample was analyzed using specific varieties of gas chromatography and the machines used for the analysis produced 20 pages of data and graphs. One question before the court was what confrontation right existed for the defendant as to the lab test results. The court held:

[t]he “statements” in question are alleged to be the assertions that [the defendant’s] blood sample contained PCP and alcohol. But those statements were never made by the technicians who tested the blood. The most the technicians could have said was that the printed data from their chromatograph machines showed that the blood contained PCP and alcohol. The machine printout is the only source of the statement, and no person viewed a blood sample and concluded that it contained PCP and alcohol. … In short, the inculpating “statement”—that Washington’s blood sample contained PCP and alcohol—was made by the machine on printed sheets, which were given to Dr. Levine. The technicians could neither have affirmed or denied independently that the blood contained PCP and alcohol because all the technicians could do was refer to the raw data printed out by the machine. Thus, the statements to which Dr. Levine testified in court—[that] the blood sample contained PCP and alcohol—did not come from the out-of-court technicians, and so there was no violation of the Confrontation Clause.

....

Thus, we reject the characterization of the raw data generated by the lab’s machines as statements of the lab technicians who operated the machines. The raw data generated by the diagnostic machines are the “statements” of the machines themselves, not their operators. But “statements” made by machines are not out-of-court statements made by declarants that are subject to the Confrontation Clause.

Id. at 229-30 (emphasis added).

The Supreme Court recently held in Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), that lab reports themselves are testimonial and therefore subject to the Confrontation Clause. But it didn't address machine-generated lab reports directly; in fact, cert was denied in Washington after Melendez-Diaz was decided even though the Court granted cert in other cases related to Melendez-Diaz. And some courts have held subsequent to (and in spite of) Melendez-Diaz that machine-generated testimony under the Washington doctrine is exempt from Confrontation Clause guarantees.

So I pose to you three questions. First, is it possible to have "machine-generated" testimony or is it really always a hybrid of machine and human? Second, is machine-generated testimony subject to a right of confrontation? Finally, however you answer the second question, how do you go forward from it? If there is no right, what does that mean? If there is, how do you go about the confrontation?

Other thoughts are welcome as well.

-- BrianS - 20 Apr 2010

<--/commentPlugin-->