Court Decision Puts Right To Cross-Examination In Question

In Massachusetts, prosecutors recently won at the Supreme Judicial Court (SJC) with an important decision: Technicians do not have to be called to testify that the breath analysis device used to determine the blood alcohol content level of a DUI suspect is properly working.

Defense attorneys argued that the ruling is a violation of a defendant's Sixth Amendment right to confrontation, which gives people the right to cross-examine the witnesses against them, relying upon a U.S. Supreme Court ruling from 2009. In the Melendez-Diaz case, the court ruled that specialists from crime labs should be called to testify in narcotics cases, as the drug analysis certificates constituted testimonial evidence.

In the present case, the Massachusetts court noted a distinction between drug lab reports and the breathalyzer documents that proved the machine was functioning properly, finding these records to be business records that were intended "to guarantee, internally, as a matter of course, and, when necessary, in court, the accuracy and standardization of all breathalyzer testing across the various police departments of the Commonwealth."

Another distinction set out by the SJC between narcotics reports and breath-analysis device reports was that while drug analysis certificates are created to assist the prosecution with proving the crime occurred, technicians certifying breath-analysis devices do not do so with a particular prosecution in mind, which sets the technician's reports outside of the holding of the Melendez-Diaz case.

The court also pointed out that the Melendez-Diaz ruling noted a possible exception for documents prepared in the regular course of equipment maintenance, which could be considered non-testimonial in nature and possibly exempt from the requirement.

Expanding on this idea, the Massachusetts court ruled more definitively than the U.S. Supreme Court that such records are in fact non-testimonial, and thus the testimony of the technician who prepared the reports relating to the correct functioning of the device was not required under the Sixth Amendment on DUI cases.