Confrontation Clause in New York

In January the US Supreme Court reaffirmed its recent decision about the Confrontation Clause. The new case is Briscoe v. Virginia. I wrote about this in the context of DWI in NY - Melendez-Diaz.

New York's highest Court addressed Melendez-Diaz. Here are some quotes from People v. Brown (11/2009 - 13 NY3d 332):

The main issue raised on appeal is whether defendant's Sixth Amendment right to confrontation was violated by the introduction of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME. Because the report is “nontestimonial,” we hold that its admission did not constitute a Crawford violation ....

...

Here, unlike Melendez-Diaz, the People called the forensic biologist who conducted the actual analysis at issue, linking defendant's DNA to the profile found in the victim's rape kit. She testified that she had personally examined the Bode file; she interpreted the profile of the data represented in the machine-generated graphs; and she made the critical determination linking defendant to this crime. She also stated that she was familiar with the procedures and protocols used by Bode, and defendant could have challenged such claim on cross-examination.

The Bode report, furthermore, was not “testimonial” under such circumstances because it consisted of merely machine-generated graphs, charts and numerical data. There were no conclusions, interpretations or comparisons apparent in the report since the technicians' use of the typing machine would not have entailed any such subjective analysis. These technicians would not have been able to offer any testimony other than how they performed certain procedures.

Key details to note:
1. The prosecution offered an actual scientist who had worked on the case.
2. There were no conclusions in the report.

Thus, in a DWI case where the prosecution brings only a police officer and attempts to use a report showing a conclusion (like the BAC was X or the machine was properly calibrated), Courts should preclude the evidence as violating the defendant's Confrontation Clause rights.