Machine-Generated Data Was Not A Statement And Raised No Hearsay Or Confrontation Clause Issues

In DUI case, majority concludes that machine-generated data concerning positive test in a blood sample was not a statement of the lab technicians and therefore was not a hearsay statement, since it was not made by a person but a machine analyzing the sample; no Confrontation Clause issues were raised, in United States v. Washington, 498 F.3d 225 (4th Cir. 2007)

Is machine-generated information subject to a hearsay challenge? This issue arose in the context of machine-generated data concerning a positive test in a blood sample used in a driving under the influence case.

After a traffic stop was made, an officer suspected the driver was under the influence. The defendant agreed to provide a blood sample at a hospital. Three lab technicians tested the sample with “headspace gas chromatography” and “immunoassay or chromatography” with a gas chromatograph machine and computers using ChemStation software. The chief toxicologist, Dr. Levine, issued a report based on the raw data generated by the three lab technicians indicating that the blood sample “contained 27 mg/dL of ethanol” and contained “0.04 mg/L of phencyclidine as quantitated by gas chromatograph/spectrometry.” Washington, 498 F.3d at 228. Defendant Washington was charged with driving while under the influence of alcohol or drugs, and unsafe operation of a vehicle.

At his bench trial, forensic toxicology expert Levine testified that a blood sample taken from the defendant contained phencyclidine (“PCP”) and alcohol which was consistent with “the behavior of somebody who was non-responsive to a police officer on the side of a road.” Washington, 498 F.3d at 229. The expert’s opinion was based on “the raw data generated by the forensic lab’s diagnostic machines.” Id. at 227. The defense objected that the expert testimony violated the Confrontation Clause since it was based on statements of three lab technicians who ran the machines and the expert did not conduct any testing, based on Crawford v. Washington, 541 U.S. 36, 53-54 (2004) (the “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination”). The trial court overruled the Sixth Amendment objection, and the defendant was found guilty.

The circuit majority affirmed the admission of the expert’s testimony and concluded the Confrontation Clause was not violated since “the data on which Dr. Levine relied (1) did not constitute the statements of the lab technicians; (2) were not hearsay statements; and (3) were not testimonial.” Washington, 498 F.3d at 227. First, the challenged “statements” were “alleged to be the assertions that Washington’s blood sample contained PCP and alcohol.” Id. at 229-30. As the circuit majority noted:

“there would be no value in cross-examining the lab technicians on their out-of-court statements about whether the blood sample tested positive for PCP and alcohol because they made no such statements. They would only be able to refer to the machine’s printouts, which Dr. Levine also had. The value of cross-examination might relate to authentication or to a description of the machines or to the chain of custody, but none of these were issues at trial, nor are they issues on appeal. Whether the machines properly reported PCP or alcohol is determined by the raw data that the machines generated, and its truth is dependent solely on the machine.”
Id. at 230. Second, “the raw data generated by the machines do not constitute ‘statements,’ and the machines are not ‘declarants.’” Id. at 231.

Third, the assertions in the lab results were not “testimonial” within the meaning of Crawford and its progeny. The circuit summarized that:

“the reports generated by the machines were not testimonial in that they were not relating past events but the current condition of the blood in the machines. To the extent that they contain assertions of fact, they say simply that ‘this blood sample that has been put into the machine tests positive for PCP and alcohol.’ The machine’s ‘statement’ relates solely to the present condition of the blood, without making any links to the past. While Dr. Levine did provide ‘testimony’ connecting the blood sample with Washington’s past behavior, this testimony was presented in court in conformity with the Confrontation Clause, was properly authenticated, and is not challenged on appeal…. As the machine’s output did not ‘establish or prove past events’ and did not look forward to ‘later criminal prosecution’ -- the machine could tell no difference between blood analyzed for healthcare purposes and blood analyzed for law enforcement purposes — the output could not be ‘testimonial.’”
Id. at 232 (quoting Davis v. Washington, 126 S. Ct. 2266, 2273-74 (2006))] For these reasons, the circuit majority concluded there was no Confrontation Clause violation in the use to the lab results by the expert witness.

Circuit Judge Michael dissented, as he “conclude[d] that (1) the test results are the hearsay statements of the laboratory technicians; (2) the statements are testimonial; and (3) the defendant, and not this court, must determine whether there would be value in cross-examining the technicians.” Id. at 232.

The position of the majority in Washington may be applied to other evidentiary contexts involving machine-generated information. For example, a similar result has been used for machine-generated information by computers. See Computer-Generated Evidence May Be Non-Hearsay.

Federal Rules of Evidence