On October 30, the Supreme Court of Pennsylvania decided Commonwealth v. Yohe, where it held that it is not a violation of the Sixth Amendment’s Confrontation Clause for a forensic toxicology analyst who merely interpreted test results of a DUI blood sample, but did not actually conduct the testing, to testify about the result. The court analyzed the precedents set by the Supreme Court of the United States in Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011) to decide the issue.
In August 2009, George William Yohe, II was arrested for DUI. A blood sample was drawn and was sent to National Medical Services Labs (NMS) for chemical analysis. At NMS, several different employees were involved in handling and testing the blood sample. The last person to deal with the analysis was Dr. Lee Blum, Assistant Laboratory Director and toxicologist at NMS. The extent of Dr. Blum’s involvement in the testing was reviewing and analyzing the results from the various tests and affixing his electronic signature to the final toxicology report. It is important to note, however, that at no time did Dr. Blum actually perform any tests; rather, he merely interpreted them. After the three different tests were performed, Dr. Blum determined that Yohe had a BAC of .159%, which is a Tier II DUI.
Near the end of the trial, Yohe moved for judgment of acquittal, arguing that Dr. Blum’s testimony was not admissible because it did not satisfy the Confrontation Clause, given that he did not actually test the blood. The Confrontation Clause of the Sixth Amendment requires that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” The judge denied this motion, and Yohe was found guilty and sentenced to 48 hours to six months incarceration. After sentencing, Yohe filed a post-sentence motion reasserting his objection to Dr. Blum’s testimony, which this time the trial court granted. The Commonwealth appealed this decision to the Superior Court, which reversed the trial court’s ruling. Yohe appealed to the Supreme Court of Pennsylvania, which agreed to hear the appeal.
Yohe argued that the precedents set forth in Melendez-Diaz and Bullcoming required that Dr. Blum’s testimony be inadmissible as he is a surrogate witness. In Melendez-Diaz, the Supreme Court held that for forensic chemical test evidence (in that case, for the presence of cocaine) to be admissible, the defendant must be able to cross-examine the analyst that conducted the test. However, the Court was not very clear on who does and does not qualify as an ‘analyst’. In Bullcoming, the Supreme Court held that surrogate testimony from another analyst in the same facility does not satisfy the Confrontation Clause. Surrogate testimony is testimony from another person in place of the actual analyst, where the person testifying is still familiar with the testing facility’s procedures. Yohe argued that requiring the analyst who actually conducted the test serves several purposes: “it enables meaningful cross-examination of what the analyst has done; it guarantees that the analyst who generated the testimonial statements is questioned under oath and subject to the penalties of perjury; it allows the fact-finder to observe that witness’s demeanor and her responses to questions; and it ensures that the accuser face the accused.” The National Conference for DUI Defense Attorneys submitted an amicus curiae brief, arguing that DUI blood testing (in this case, gas chromatography) is such a complicated and technical process that the possibility of error or fraud is always present, and that only the actual analyst’s testimony will satisfy the Confrontation Clause.
The Commonwealth argued that Dr. Blum is in fact the analyst whose testimony is required by the Confrontation Clause. It argued that Dr. Blum is the actual author of the Toxicology Report, and that all the other analysts did was simply put the specimen into the machine; it argued that Dr. Blum was the person who made sense of the raw data. As such, the Commonwealth argued that Dr. Blum is not a surrogate witness.
Considering both sides’ arguments, the Supreme Court held, as a matter of fact, that “Dr. Blum is the analyst who determined [Yohe]’s BAC”, and as such, his testimony satisfies Melendez-Diaz, Bullcoming, and the Confrontation Clause. The court decided this way because Dr. Blum was the only one who actually engaged in critical analysis of the test results and the only one who determined Yohe’s BAC. Also, Dr. Blum was involved with the analysis insofar as he supervised the other employees who actually tested the blood, evaluated and validated the record and chain of custody, determined Yohe’s BAC, and signed his name to the report. Although he never physically tested the blood, the court still found his testimony to to satisfy the Confrontation Clause.
The takeaway from this case is that an employee at a chemical testing facility who never physically tested the sample, can still testify about the physical testing of the sample. The question then is, which other witnesses who are only remotely connected to actual testing might also satisfy the Confrontation Clause in these types of cases? How attenuated could the connection between the witness and the actual testing be? The court’s decision could eventually result in people far less involved than Dr. Blum testifying about chemical testing, if a court were to take it that far.
However, this may not be the end of this case. Yohe is going to appeal the decision to the Supreme Court of the United States, and we will provide updates as the case progresses.