Posted by: Edmund R. Folsom, Esq.
Date: May 16, 2015
State v. Tozier, The Intoxilizer 8000 & The HairFibber2000
In State v. Tozier, 2015 ME 57, Maine’s Law Court recently decided that the Confrontation Clause of the U.S. Constitution does not require the State, in order to introduce the results of an Intoxilizer breath test at trial, to present testimony as to how the Intoxilizer machine analyzes breath samples and produces results. To back up a few steps, the issue arose because the U.S. Supreme Court has declared that “testimonial” evidence may not be introduced against a defendant at a criminal trial unless the declarant testifies at trial and is subject to cross examination. Without getting into an extensive discussion of how a court determines whether evidence is “testimonial,” it’s important to an understanding of Tozier to know something about the U.S. Supreme Court’s opinions in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S.Ct.2705 (2011). In Melendez-Diaz, the Supreme Court ruled that a forensic drug-analysis report was clearly “testimonial” because it was created by the State solely to establish or prove facts (the composition, quality and weight of drugs) at trial. The Court found that the Confrontation Clause required the trial testimony and availability for cross-examination of the analysts who made the certificate. As an interesting side-note, within a few years, a huge scandal broke in Massachusetts over State lab analyst Annie Dookhan, who, it turns out, had been falsifying drug test results for the State in hundreds of cases over a period of years.* Without the Melendez-Diaz opinion, Dookhan’s certificates of analysis would have been admissible at trials without any constitutional requirement that Dookhan ever be subjected to cross-examination on her work.
In Bullcoming, the admissibility of another laboratory certificate was at issue, this time dealing with the results of a blood-alcohol analysis. Because the analyst was on leave at the time of trial, the State introduced the certificate and the substituted trial testimony of another lab technician who testified to the lab’s policies and procedures in conducting such analyses. Everyone involved agreed that the information in the certificate was “testimonial,” but the State of New Mexico argued that the substitute analyst’s testimony satisfied the Confrontation Clause because it afforded the defendant a chance to cross-examine a qualified witness regarding the procedures under which the result was produced. The Supreme Court disagreed and held that the declarant/maker of the testimonial evidence, not a substitute, must personally testify, subject to cross-examination, in order to satisfy the Confrontation Clause. That’s enough background. Now, back to Tozier…
In Tozier the State sought to introduce an Intoxilizer breath test certificate at Tozier’s OUI trial. The certificate stated that Tozier’s breath test result was 0.18 grams of alcohol per 210 liters of breath. The only witness the State intended to produce to testify about anything having to do with the Intoxilizer test was the officer who turned on the machine, entered the pertinent information, watched Tozier for 15 minutes and then had him blow into the mouthpiece on the breath tube. This officer was unable to offer any testimony about the way the machine analyzes breath samples and produces results. The trial court ruled the test result inadmissible because the State did not have a witness who could testify to how the Intoxlizer works. The State appealed. On appeal, Tozier argued that allowing the introduction of the breath test without presenting the testimony of a witness as to how the Intoxilizer analyzes breath samples would violate the Confrontation Clause of the U.S. Constitution. In setting aside the trial court’s judgment, the Law Court rejected Tozier’s argument, stating that it has no support in the U.S. Supreme Court’s Confrontation Clause jurisprudence. See Tozier 2015 ME 57, ¶22. In reaching its conclusion, the Court referred to Intoxilizer certificates as “a piece of paper produced by a machine,” as opposed to the “report by a laboratory analyst reflecting results he obtained after employing sophisticated laboratory analysis,” that was at issue in Melendez-Diaz. See Tozier, at ¶19. What is not clear from the Tozier opinion is whether the Law Court determined that the information in this “piece of paper produced by a machine” is not testimonial or whether it found that an Intoxilizer certificate is testimonial but that the certificate’s maker– the police Intoxilizer operator who swears under oath to the truth of its contents– is the only witness that the Confrontation Clause demands must testify at trial regarding the contents. Tozier did not require clarity on this point because either position leads to the same conclusion– that the Confrontation Clause does not demand the trial testimony of a witness to testify to the scientific and technological underpinnings of Intoxilizer breath-testing. For what it’s worth (and that’s probably not much), if the Law Court’s position is the former, I think they’re wrong, because Intoxilizer certificates clearly are documents created by the State solely for trial/evidentiary purposes. But if the Law Court’s position is the latter, I’m not actually sure how that shakes out under the U.S. Supreme Court’s Confrontation Clause jurisprudence.
The broader issue raised in Tozier is how the right of an accused to confront and cross-examine his accuser is to be meaningfully honored when the accuser is a machine that cannot directly be confronted and cross-examined in a court of law. This is the issue that bothered the Tozier dissent, and the dissent concluded that, to satisfy the Confrontation Clause, such circumstances require the State to produce a witness who understands how the Intoxilizer works. The cop who pressed the Start Test button on Tozier’s Intoxilizer machine, who handed him the tube and who said “keep blowing, keep blowing, keep blowing” did not fill that bill; and beyond knowing how to perform those steps (and a 15-minute pre-test observation period), the average certified Intoxilizer operator knows fat little else about the workings of the Intoxilier machine.
To illustrate the problem in the machine-as-accuser-that-cannot-be-cross-examined scenario, let’s briefly examine a current law enforcement fudged-evidence scandal. I referenced the Annie Dookhan scandal in Massachusetts, above, but the current big mess is the FBI’s hair-and-fibers scandal.** The hair-and-fibers scandal involves a group of in-house FBI personnel who were in the business of “scientifically” matching hairs and fibers found at crime scenes to hairs and fibers linked to crime suspects. For about 20 years, beginning in the 1980’s these FBI agents presented testimony that helped secure convictions all over the country, in state as well as in federal courts. Lately, though, it has emerged that the testimony these agents presented was, in nearly every hair-matching case over a 20 year period, overstated… fudged… inaccurate. All these years later, the convictions in these cases are being reexamined, which probably provides small comfort to anyone who’s already served a 10 or 20-year sentence based on the overstated, fudged, inaccurate testimony.
Isn’t it good that the Confrontation Clause at least guarantees to an accused the opportunity to confront and cross examine such live purveyors of junk science as the FBI hair-and-fibers experts, instead of allowing them to simply issue a certificate of analysis that a prosecutor can introduce into evidence, unquestioned? Now imagine that, somewhere along the line, one of those FBI agents had left public service and invented a machine, let’s call it the HairFibber2000, that determines hair and fiber matches and produces a printout stating the degree of certainty of each match based on the same scientific principles on which the agent’s years of testimony were based. Then suppose state legislatures around the country had been sold on the idea of this machine as an inexpensive, reliable, accurate crime buster, and had enacted legislation allowing any police officer trained to enter hairs and fibers into the machine for analysis to certify the printout. And suppose the legislation further provides that the information in the printout is to be accepted into evidence as prima facie proof of the facts it states. Just to make our HairFibber2000 even more impenetrable to its accused, let’s suppose the inventor is able to keep the mathematical formulas, algorithms, etc., that he has programmed into the machine a proprietary secret, so nobody is allowed to know how the HairFibber2000 arrives at its matches of hairs and fibers or their degree of certainty. This would make the HairFibber2000’s results about as easy to examine as the results of the Intoxilizer 8000 breath testing machine that the State of Maine intends, on remand, to use as a witness against Mr. Tozier. But in Maine, because of Tozier, we know that the State would not be required to present the testimony of any witness who knows how the HairFibber2000 does its analyses… Man vs. the State’s machine and the machine holds all the cards.
But is all lost when the State chooses to use an accusatory machine that cannot be cross-examined and keeps the methods of its workings shrouded in proprietary secrecy? Given the propensity of live FBI hair-and-fibers witnesses to fudge evidence under color of governmental authority, would it matter to an accused whether the witness against him is an FBI junk-science monger or a HairFibber2000? The live FBI fibber might occasionally yield a valuable concession on cross-examination, but that’s doubtful. Given the totally-crap available options, might the accused actually prefer his accusers to be the piece of paper produced by the HairFibber2000 and the cop who knows nothing about how the machine works, versus the live FBI fibber? Instead of facing an FBI agent and her trappings of authority and institutional credibility, the accused would instead face an uninformed cop and a machine that created a number without explanation. At least in the latter case the accused can point out that the cop can’t tell the jury how the HairFibber2000 works, and that with a burden of proof beyond a reasonable doubt the jury hasn’t been given a shred of evidence from which to conclude that the HairFibber’s results are worth the paper they’re printed on. Jurors can’t be instructed in terms of presumptions or prima facie proof in criminal cases, and jurors can’t base a finding of proof beyond a reasonable doubt on surmise, conjecture, or speculation. What is reliance on the HairFibber2000 if not a faith walk with the government and an invitation to speculate the integrity of its machine?
Now, let’s return to State v. Tozier and the Intoxizer 8000. Why is the government’s machine, in this case, any different than the HairFibber2000? On what basis can a jury rationally assign any weight to its results absent any explanation as to how it works and how it came to produce the number it printed on a piece of paper? Please, explain this to me.