The Crawford confusion marches on: the confrontation clause and hearsay laboratory drug reports.

• Author: Doellman, David A.

State v. March (1)

1. INTRODUCTION

   Rapid advances in science and technology have influenced criminal prosecutions as police often utilize advanced technology to obtain evidence that is integral to the prosecution's case against a criminal defendant. Such practices are especially common in cases involving illegal drugs, in which slight variations in the precise measurements of such substances could add or subtract from the lengths of sentences. (2) Often, prosecutors offer this crucial evidence in court through a laboratory report documenting the exact results of the tests performed on the alleged illegal substances. The admission of these lab reports seemingly complies with the rules of evidence of most jurisdictions, but at the same time, this approach may be at odds with a defendant's constitutional right "to be confronted with the witnesses against him." It seems perfectly logical that the defendant in this situation should be able to face the person that produced the drug test results that ultimately lead to the conviction.

   When the Missouri Supreme Court faced this situation in State v. March, it attempted to resolve the apparent conflict between the rules of evidence and the United States Constitution. Unfortunately for the Missouri Supreme Court and other courts in similar situations, there is no clear guiding light to aid them in resolving these cases. At best, the United States Supreme Court has provided a dim illumination through its recent decisions that have continued to leave courts stumbling around in the shadows in search of a way out of this confrontation confusion.

2. FACTS AND HOLDING

   In September 2002, members of the Poplar Bluff, Missouri Police Department entered the home of Kendra Davis, and seized a small plastic baggy containing an off-white residue that was later determined to belong to Robert March. (3) After this substance field-tested positive for crack cocaine, (4) March was arrested and later charged with drug trafficking in the second degree. (5) The plastic baggy and its contents were sent to the Southeast Missouri Regional Crime Lab for further analysis, where Dr. Robert Briner, then the lab's director, affirmed the field test results and determined the substance to be approximately 2.7 grams of crack cocaine. (6) Dr. Briner prepared a standard laboratory report documenting these results and gave the report to the prosecution for use during trial. (7)

   At the proceedings against March, the State did not call Dr. Briner to testify about his report because he no longer worked at the lab and had moved to North Carolina. (8) Instead, the State had Pam Johnson testify as to the results because she was the chief criminologist at the time the report was prepared and later succeeded Dr. Briner as lab director. (9) While Ms. Johnson was able to authenticate the report and stated that the tests ran by Dr. Briner were the standard practices for the lab in analyzing evidence, she did not personally perform any of the tests on the drugs herself. (10) Nevertheless, the report was admitted into evidence, over defense counsel's objection, under the business records exception to hearsay evidence found in Missouri Revised Statute section 490.680. (11)

   On appeal to the Missouri Supreme Court, (12) the defendant argued that the lab report should not have been admitted into evidence because doing so violated his right to confront the witnesses against him as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 18(a) of the Missouri Constitution. (13) In particular, the defendant relied upon the recent U.S. Supreme Court case of Crawford v. Washington, (14) which held that due to the Confrontation Clause of the Sixth Amendment, "all testimonial statements [must] be excluded unless the declarant is unavailable to testify at trial and the defendant has had a prior opportunity to cross-examine the declarant." (15) Applying this principle to the case at bar, the defendant contended that the lab report containing the results of the drug analysis was testimonial (16) and that the requisite conditions mentioned in Crawford needed to admit such statements without calling the declarant as a witness had not been established by the State. (17)

   Regarding the absence of the Crawford conditions, the defendant stated that the State had failed to show that Dr. Briner, as the report's preparer, was unavailable to testify at trial regarding his analysis of the report. (18) Instead, Dr. Briner simply preferred not to make the trip back to Missouri for the trial. (19) And, since Dr. Briner moved to North Carolina before the trial started, there was no chance for the defendant to confront and cross-examine Dr. Briner about the report itself. (20) Therefore, according to the defendant, the key issue before the court was whether or not the out-of-court declarations contained in the laboratory report were "testimonial" under Crawford. (21)

   To support his conclusion that the report was testimonial, the defendant first argued that Dr. Briner's laboratory report bore the characteristics of the generic descriptions of testimonial statements offered by the United States Supreme Court in Crawford. (22) In addition to this argument, the defendant also cited a further characterization of testimonial statements reached in Davis v. Washington, (23) the aspect of having "'the purpose ... to nail down the truth about past criminal events.'" (24) The defendant contended that Dr. Briner's laboratory report was the primary means of answering the law enforcement's question about the illegal identity of the white substance found at the scene of the crime. (25) Therefore, the report effectively established the truth of past criminal events and falls within the standard in Davis. (26) Finally, the defendant directed the court to cases from numerous other jurisdictions that had considered similar situations to the case at bar, and reached the same conclusion about the testimonial nature of such reports. (27) Therefore, the defendant contended that the admission of Dr. Briner's laboratory report was in error, and the lower decision should be reversed. (28)

   In contrast, the State contended that while Crawford held that the right of the Confrontation Clause of the Sixth Amendment applies to testimonial statements, it only applies to statements of this nature and not to those that would be otherwise admissible. (29) In particular, the State relied on the fact that Crawford mentioned only generic examples of what the Court believed to be testimonial statements. (30) In addition, Crawford also addressed in dicta that various exceptions to the normal rules of hearsay evidence that make certain types of information and statements, including "'business records and official records,'" admissible in any instance. (31) Consequently, the State urged that this reference to business records being non-testimonial should guide the court, as it has in other jurisdictions, to conclude that the statements made in the drug report were non-testimonial in nature and therefore not subject to the Confrontation Clause. (32)

   To support this conclusion, the State argued that Dr. Briner's laboratory report qualified as a "business record" under the applicable Missouri statute. (33) Laboratory reports detailing the results of evidence analysis are made in the regular course of business of the Southeast Missouri Regional Crime Lab and in fact, are made on every drug tested regardless of whether or not there will be a trial. (34) In addition, the process utilized routine laboratory testing methods for these types of substances, and the report itself contained results objectively stated with no personal opinions whatsoever. (35) According to the State, this routine use and objectivity demonstrated that the laboratory report was a business record kept both accurately and precisely in the business interests of the crime lab. (36) Therefore, because the report in this instance falls squarely within the definition of a "business record," it was properly admitted into evidence during the original trial through the appropriate hearsay exception as a non-testimonial statement. (37) As a result, the report does not fall under the rule laid out in Crawford and is not subject to the Confrontation Clause of the Sixth Amendment. (38)

   Upon hearing the arguments of both the State and the defendant, the Missouri Supreme Court ultimately reversed the trial court's original decision. It held that when a forensic laboratory report is offered as evidence in a criminal prosecution and the report's analyst is not called as a witness, then the report cannot be admitted under the business record exception to hearsay evidence. (39) Instead, the report qualifies as testimonial evidence under Crawford and is therefore subject to the Confrontation Clause of the Sixth Amendment guaranteeing a defendant the right to cross-examine those witnesses making testimonial statements against him. (40)

3. LEGAL BACKGROUND

   1. Missouri's "Old Rule"--the Business Records Exception, Taylor, and Roberts

      In Missouri, the admission of laboratory reports and other such "business" documents as evidence was historically accomplished through a hearsay exception governed solely by the state's version of the Uniform Business Records as Evidence Law. (41) Generally speaking, the common law hearsay rule "is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined as to the bases of their perceptions, the reliability of their observations, and the degree of their biases." (42) However, the business records exception provides a way around this general rule in order to both broaden the scope of the admissibility of business records (43) and to avoid the many "antiquated and technical common law rules." (44) The rationale of this exception is that such records are reliable because there is routine recording of...