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Confrontation Clause Offended When Chemist Does not Testify

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A lab chemist that tests both a substance to determine if it's a narcotic or one that tests a blood sample for a DUI has to testify at trial.

By Attorney Elisabeth K.H. Pasqualini, Drug/DUI Defense Lawyer, Harrisburg, PA

The Confrontation Clause of the U.S. Constitution and the PA Constitutions both provide that an accused must be confronted with and given the opportunity to cross-examine witnesses or evidence being offered against them.  In two separate decisions now, since Crawford v. Washington, 541 U.S. 36 (2004), (the United States Supreme Court took the view that "the Confrontation Clause did not bar the admission of out-of court statements that fell within a firmly rooted exception to the hearsay rule."), the U.S. Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (U.S. 2009), 129 S. Ct. 2527, 174 L. Ed. 2d 314, 2009 U.S. LEXIS 4734 (holding that lab results showing positive test results for cocaine not admissible without lab tech- the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits) and in Bullcoming v. New Mexico, 131 S. Ct. 2705 (U.S. 2011), 180 L. Ed. 2d 610, 2011 U.S. LEXIS 4790 (substitute lab tech testimony not admissible to prove amount of alcohol in blood test results for DUI) have held that the substantive guarantees of the 6th Amendment to confrontation of a witness is not effected by procedural or evidentiary rules that apply to "in-court" evidence only. 

The PA Superior Court in Commonwealth v. Larry F. Weaver, 2013 Pa.Super. 245 (August 28, 2013) recently relied on those decisions when it held that the conviction of the defendant should be upheld becuase the lab techs responsible for drawing and testing the blood for the presence of alcohol and prescription drugs were present at trial and testified.

This decision was recently upheld in Com v. Brown, 2016 Pa. Super. 98 (May 10, 2016).  A coroner must testify as to the cause of death because it is testimonial in nature.  Any autopsy report is testimonial.

If you've been charged with a drug crime or a DUI, know that the lab tech or chemist responsible for testing the drug/blood must be present and testify at trial absent waiver or agreement to the results.  You may contact Shaffer & Engle Law Offices, LLC toll free or email us today.

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