Court deems lab reports inadmissible

While standing trial for possession with intent to distribute narcotics, Ronald Johnson objected to the admission of lab reports attesting to the weight of the drugs and to testimony from a supervisor about the contents of the reports in the absence of the lab techs who wrote the report.

The trial court, finding no harm in allowing a witness to parrot the information contained in a lab report written by someone else regarding tests performed by another person, allowed the reports to be entered into evidence and allowed the supervisor to testify to the contents of the reports. Surprisingly enough, Mr. Johnson was convicted.

On appeal (Johnson v. State, No. 09049F (Tex.App.--Dallas, 2011) Mr. Johnson argued that the trial court's decision violated his 6th Amendment right to confront the witnesses against him. The state argued that even if the reports were inadmissible, an expert witness may base his testimony on inadmissible hearsay.

In dismissing the state's contention that the supervisor's testimony was admissible, the court stated that while it was permissible for an expert base his expert opinion on inadmissible hearsay, it was not kosher for a person to act as "little more than a conduit for...testimonial hearsay."

The court found that the reports were testimonial in nature and that Mr. Johnson had not been afforded the opportunity to cross examine either the author or the person who performed the tests. Since the court found the evidence violated Mr. Johnson's 6th Amendment right to confrontation, the court:

should consider several factors: (1) The importance of the hearsay statements to the State's case; (2) Whether the hearsay evidence was cumulative of other evidence; (3) The presence or absence of evidence corroborating or contradicting the hearsay testimony on material points; and (4) The overall strength of the prosecution's case.

Having found that the state's case rested entirely on the reports in question, the court reversed the conviction.

HGN and hearsay

The Amarillo Court of Appeals has reversed a DWI conviction because the trial court allowed the prosecutor to introduce a letter from the American Optometric Association regarding the validity and reliability of the horizontal gaze nystagmus test. 

In Wells v. State, No. 07-07-0471-CR (Tex.App.--Amarillo, 2008), the Court held that it was reversible error for the trial court to have allowed the arresting officer to identify the letter and then to allow the prosecutor to read it into evidence.  The Court pointed out that there was nothing in the record to indicate the officer was an optometrist, a member of the AOA or had any knowledge of any test or studies that backed up the AOA's position.

Interestingly enough, the prosecutor introduced the exhibit at the end of the state's case in chief (at the end of the first day of trial) and reintroduced it during closing argument.  Defense counsel (correctly) objected on the grounds that the document was hearsay and that the defendant was being denied his right to confrontation under Crawford.

Now when the prosecutor asks the arresting officer about the so-called validation studies and the supposed accuracy of the NHTSA battery of police coordination exercises, stand up and object with the Wells opinion in your hand.

Loss of normal use...

According to the DWI statute in Texas, the state can prove a citizen is intoxicated in one of three ways:

1. Loss of the normal use of one's mental faculties due to the introduction of
alcohol, a drug, a controlled substance, or a combination thereof, into the
body;
2. Loss of the normal use of one's physical faculties due to the introduction of alcohol, a drug, a controlled substance, or a combination thereof, into the body; or
3. Having an alcohol concentration of .08 or higher.

There are two training manuals that are a must have for any lawyer who practices DWI defense in Texas - DWI Detection and Standardized Field Sobriety Testing (published by NHTSA) and the Texas Breath Alcohol Testing Program Operator Manual (published by the Texas Department of Public Safety).

Both of these manuals may be used to impeach the state's witnesses on the subject of "loss of normal use." A criminal defense attorney who knows what he's doing can cross-examine the state's witnesses with these manuals through the "learned treatise" exception to the hearsay rule.

According to the breath test manual, "[i]t is not the alcohol in the peripheral areas of the body which impairs a person's coordination, but the alcohol concentration in the CNS (central nervous system) tissue." This seems to indicate that it's not the concentration of alcohol in a person's breath that is critical -- it's the concentration of alcohol in a person's central nervous system (brain, brain stem and spinal cord) that is critical.

The breath test manual goes on to state that "[t]he first effect of alcohol is the impairment of judgment." That's because "[a]lcohol affects the brain in reverse order of how the brain develops." In other words, the higher level brain functions, such as judgment, logic and reason are affected before the lower level brain functions, such as breathing and digestion. According to the breath test manual, "[p]sychomotor skills are motor actions (physical faculties) proceeding directly from mental activity."

The NHTSA manual states that alcohol "doesn't affect a person until it gets into their central nervous system, i.e. the brain, brain stem and spinal cord."

This is important because the manuals the state uses to train its experts tell us that alcohol affects one's mental faculties before it affect's one's physical faculties. Thus, evidence indicating the citizen accused had the use of his mental faculties at the time of driving can be used to refute the state's argument that if a person performs poorly on the police coordination exercises, he must be intoxicated.

Now when you ask the arresting officer or the state's breath test expert whether alcohol affects one's mental or physical faculties first, and he tells the jury alcohol affects them both equally, you can pull out your manuals and read the training material that contradicts his "expert" testimony. But in order to do that, you have to know what's in those manuals.

If you're defending citizens accused of DWI, and you don't want to commit malpractice, you need to get those manuals ASAP.