well take the matter under submission the next case on the calendar is cook may please the court the morning my name's bruce bryan mom here on behalf of yancey cook this case raises a significant issue dealing with whether the confrontation clause of the united states constitution was violated when the court permitted the introduction of records prepared by a new york state crime laboratory analyst containing statements in there regarding performance of  proper performance calibration repair of the device in that it was accurate and reliable in these words are an affidavit form the first thing i would like to address is that the attorney general has  raised in in response to that and relying on the case supreme court case of williams and i think it's it's quickly disposed of and that is by citing to this court its decision in united states versus james rule i don't know how you can say there's a clear federal rule if the issue you raise i think is a fascinating issue and if this were here on direct review the question of whether these records are testimonial would be i think a very powerful argument  it would be a difficult thing for the court to decide because there are lots of contradictory strands in the supreme court already there is very little in the way of clear majority guidance on it but they get very specific when talking about of course is at the deference the question for us is whether the it's not whether we think this is testimonial it's whether the new york court of appeals was made an unreasonable application of supreme court presence on the ask you specifically about footnote one in maryland as d as it says documents prepared in the regular course of equipment maintenance may well qualify as non testimonial records yes if this were here on direct review we could say well they just say it may well they don't decide that issue maybe it does maybe this is really a kind of bogus footnote trying to diffuse the dissent but the logic of m clearly applies to what you're saying but how can we say that the new york court of appeals unreasonably applied supreme court precedent when it ruled on a question that the supreme court specifically leaves open  i submitted did not and and the reason it did not is and what is the clearly of sam wished federal law but i submit is the establishment of two rules of law or principles one is a corollary corollary to the other and it's repeated in through several cases and that is that a is a record is testimony if its primary purpose is to create a document for later use in a trial now i am practically verbatim repeating what this court said in the united states versus shames on inside in the brief but i would like to give the cite to it because i think it's extremely important seven twelve the third seventy nine and why that's so important to aspects of the government the attorney general relies on williams and this court said williams is limited to its facts and has no presidential value the reason is plurality was the dissent in williams so it's only four justices that has this more limited if there was going to be a situation of making unclear what was clear by the preceding i mean i didn't i didn't refer to williams i didn't say the word in my question i'm asking you about a footnote in melendez diaz what is there is there is there's not a subsequent supreme court case that addresses documents for period in the regular course of equipment maintenance there is and and this is why it is it is it is not left open now if if we were to say that the supreme court adopted the categorical approach in which she would say as a category maintenance records may well be well that's a categorical approach and therefore it is a question left open the supreme court rejected the categorical approach the supreme court laid down principles applying to all records including maintenance records it was a comment wasn't leaving it open it was a comment as well you may it may well be i'm saying most maintenance records are made as internal record keeping of an agency that is that a factual determination essentially why this particular record was made now it is an application and in this case it is an application of a clearly established federal law the principle that test that test applies to all records including maintenance records and that's been clearly established the second corollary to that clearly established rule federal rule of law is that you determine whether or the main indicator of whether something is what its primary purpose is or the formalities of the document so there are those that's the rule and reasonable about the state courts conclusion here correct me if i'm misunderstanding the record but that the primary purpose of the records here was to document the effects the efforts of the state police to maintain their equipment in working order well for example lenders dia's and and in full coming they said there are certain in one they assisting in prosecution of crimes we have that here second thing is that we have served cation or or at a station and we have that here we have affidavit language in in these documents where here we are it  very do here by say that the aforementioned and determination to see what the words are exactly have determined that it's been calibrated that i have followed procedures this is right out of all coming a then based on the just and based on the determination based on the calibration i have determined that this breathalyzer device is accurate and reliable for the determination of blood alcohol by breath analysis i submit to by the way that is an incredibly important statement beyond a maintenance record beyond it because i could take that and write it on a piece of paper and submit it to a jury i stephen berry say this to you this is an accurate and reliable  device picture just that statement alone going to the jury that it's clear testimony that is subject to cross examination why because we know there's so much in this that they are not accurate there is such a such an absolute authoritative literature saying it is not accurate that is a misnomer at best at best it's in estimate and at worst they are they are unreliable depending on the sets of circumstances and we have it here around yes well i would say that it's this is as close to bull coming as you can judge i mean for coming was a blood test for d w i case there's a big difference isn't there between you know the next step and i realize this is this is different right because in your case it is the breathalyzer that is testifying in effect it's the machine that's testifying and behind that is this guy saying it the machine works but of course when if you had the live chemist who testifies as in full coming i did this test i used a machine to do this test oh well was the machine working yeah i think so actually we have records of some but technician who came in and maintenance the spectrometer do we now need to have that technician come and testify the same argument was made in coming and rejected and let me let me just you know i think this is the same argument that the dissenters made in melendez diaz and that's why that footnote was put in to say wait with is this we met when if this is going that far well again i would i would say yes and  there's clarification to it if that footnote raises first of all it's consistent i would say through the cases that supreme court has rejected the categorical procida applies these principles to all records regardless of what they are but then you look at all coming and you look at bryant and it confirms that rejection of you then i have a problem and then we move into if there are certain principles to be applied that are essentially factual about what is the purpose of this then is not following federal law it clearly established federal law yes it gave lip service to the primary purpose test enunciated by the supreme court but then what it did to it did not follow it what it did was we have new york precedent we say it means the us when you look at what they said it means it is not what will come in melinda's diaz bryant said at all in fact what it says it's absolutely dissenting minority view point to one thing that they say just as an illustration they say one factor and these are factors of exclusion if you don't meet these factors it's not testimony to and the very narrow to one narrow factor was  the document must accuse the defendant directly well that was rejected specifically in london as there is by the by majority in this court in james noted that that that has to as to the difference that is not the prevailing majority view in james it's not only that that this quick case williams is limited to its facts but also expressing state high courts that have come to the conclusion that records of this type maintenance records are not testimonial it's hard in that context for a federal court to say your mind interests could not be about the nature of the records and i'm having a little difficulty understanding whether you're saying there was a legal determination is a clearly erroneous legal determination or that there is something about these specific records that means that there was a factual determination that was incorrect analysis breath that's not it's not maintenance record in the normal sense of saying you know we determine that the gear is all work and it doesn't need oil and stuff like that it's a that this is a scientifically methodologically sound instrument for determining certain at life and that is exactly what i'm argument i've been trying to argue is this is if let's call certain aspects of the record it has maintenance elements of it but superimposed on that record in the purpose it superimposed on that record is for use in a trial are these are these things that meet younger it's beyond the maintenance so say for example if there is daubert objection made to that testimony of testimony it was it's a violation of the confrontation but what was there in objection that nothing about this machine should be allowed into evidence because no one has established that this is reliable as a scientific matter i don't recall that objection but also that objection would not be consistent with melinda's dia's and all of the analysis on of the confrontation clause because the crawford made the change from saying we look at reliability to instead whether it's testimony reliability is not the measure here as to as to what you do to make a determination of whether some of they've brought in the fellow that you want brought in your argument basically is  to china several times to teach and i can tell you that the main thing that i'm being asked about his cross examination and how to do it well the confrontation clause and the right to cross examination they go hand in hand we're bringing the person into court so then they can be cross examined it's the hall mark of the before he even gets into court there's a problem it seems to me the state is relying on some kind of science and you're saying it's bogus science but you might  case to let the guy testify and then cross examine him with all the methodological problems and that then you would have the argument you see ladies and gentlemen the state is relying on this kind of nonsense to prove their case you shouldn't let them get away with it or something like that there's evidence in this record is highly highly damaging to the people's case but i submit it would have created at minimum a reasonable doubt but in great likelihood would have led to acquittal and the reason is that there's an element of the your crime which says you must prove it is in working order and here is the what happens is there's a calibration and repair that goes on in a time frame new york chooses at a minimum one year this was violated here was thirteen months but critically the one that a perk occurred later within weeks of when this mr cook was breathalyzer it was on that report the analyst said i replaced the fuel cell and the capillary two to this device well especially the fuel cell is is critically important because in these authoritative literature seeings as that degrades it degrades to a point that the fuel cell component of it it the device becomes unreliable it is the standard reference if that standard reference is not working the device does not work so i would say so critically great cross examination there would have been and by the way another thing that is in the record it says i can see that what you're making is to make it clear to make sure i understand it is that even if we were to accept that he did the maintenance one of the things he did was after this machine had been used to test the defendant in the case it had to be fixed we don't know whether it was in need of a fix at the time that it was that's that or not the point of the introduction of the record is to prove an element of the crime that within this time frame between the point of being calibrated and tested at this point in the point where it is problems it's tested at the time it with breathalyzers huge time frame all the more reason to cross examine over but we haven't here exploits it evidence that would have created i submit reasonable doubt on cross examination that this device was not working when mr cook was was tested you wouldn't have someone frankly as like mr cook look how much he's fought this thing if he wasn't adamant that he was not intoxicated so here we are and you have a device and by the way another thing so important just critical extra electro chemical testing to contain the appropriate ration of and is here by approved for use it sounds like maintenance language well here's the maybe the really important records are the ones of the they call them calibration and maintenance and by the way them they're recognizing even in the title that this is more than a maintenance record calibration but here's the critical language i steven d very calibrated the above referenced instrument legal language and determin that any necessary maintenance procedures were performed runnable coming through said you got to cross examine over that whether it was in fact done based on this calibration i have determined that the instrument is is keyword is accurate and reliable for the determination of ethyl alcohol in the blood by now says of the process now i want to focus on the word is you look at the regulations and what calibration means under the regulations and what this means here it means after they calibrate it then it is accurate the trooper was asked in this case was it working before and he can't say because he's not the analyst and he says i don't know w there there was no record introduced of the calibration the preceding calibration don't both know both there but you see the importance of the second calibration used is what is being introduced for is the claim that if it's working now and it's working now it must have been working in between and that it must been working at the time if that record by saying it is calibrated not one of those calibrated was working it is of no effect that it's cross of the cross examination but analytically the argument is the same whether the guy shows up or doesn't the problem the problem is there was cross examination a trooper saying i don't know and then he's asked well what does it mean is it means it's working between here and there and therefore it's working that's the problem you needed to cross examine the analyst in by the way want to say i just want to point up or just absolutely say the same thing the troopers and he did that the point is what the trooper said is wrong and you can make that argument to the jury you can't you have nothing to say the troopers wrong you have nothing you only have in the record the i don't know you don't have it you have to cross examine the analysts now i just want to make one last point to just show you that this record these time of each of it recorded or to reasonable time thereafter that's the business record exception that is this record was meant to be introduced in trial intended it satisfies both coming  please the court there were a lot of points there and i want to i just want to focus on one and this is people's exhibit which sort of it was a really before who based on the calibration it has been determined that the instrument is accurate and reliable for the determination of the thought in the blood by in houses of breath i don't see how that's that is a maintenance record in any way shape or form it's a it's the functional equivalent of the rule seven o two if you were the federal rules expert opinion directed specifically to the reliability of this evidence in this case how can you  hole in the blood and that's the purpose of the device your honor is to measure ethyl alcohol in the blood and and your honor but i don't have to come up with this on my own i think that the counter to the present to the argument that you're making was stated well by so essentially way back in two thousand and five right after crawford was decided there was one judge up in an upstate new york town court who started dismissing these eleven ninety two prosecutions based on the fact that these documents he held were testimony on the crawford the district attorney of monreal county brought collateral action in article seventy eight proceeding in the county court the monreal county court saying essentially to the county court judge you have to stop this and that's precisely what the county court did and in doing so in holding that these sort of these maintenance documents were not testimonial he went on at length so i could give you out of the site but i would just like to read a little to the regulatory requirement of having your car licensed you car certified by by a mechanic that it can drive on the roads and this he's doing this in the context of the primary purpose being a regulatory purpose was it which is precisely the argument you make in our brief and he essentially says that right that the records of these inspections are accounts of periodic state mandated safety inspections on motor vehicles just as auto mechanics must determine whether these instruments do in fact accurately measure everyone knows that corners as a general manner work but this is not like a car this is an instrument whose very whose whose reliability has been seriously question so i don't understand the you know treats its like it situation we're faced with here ronnie run a few points about that respectfully i disagree that about the science you know that there's plenty of case law upholding the accuracy and reliability and admissibility of these breathalyzer test results but even before you get there i think we have to know that we are here on federal habeas and that defendant was free to raise all these points below and he never did so it's not in the record instead it's like a score going back to exhibit five because with my colleague look at this language and it looks sort of like an affidavit the state courts looked at it and they determined that it's primary purpose was not for introduction at trial and that's this is a separate question from the reliability of the science we're just saying about whether it's testimonial and so they concluded that its primary purpose was not renewed action at trial for something else that's a determination as opposed to make based on the totality of the circumstance not just the language here so can you marshal the evidence on which the state court relied to make this determination certainly your honor and i think it's a good point because it goes to you know it also answers defendants repeated argument that that these are these records are similar to the records and paul coming in melinda's the us these maintenance records are prepared pursuant to a statute requiring that they be maintained in good working order another point the the regulatory purpose shows that there's a primary business purpose for these for these documents they they have to be you know as the officer here testified when when he was being bored geared by defense counsel he has seen these records in the context of his carrying them back to some central depot to be worked on similar to a car going into a mechanic to be certified for pursuant to its annual inspection so i think your honor is right the primary purpose of these documents is is business and again the point i was trying to get out before is isn't the problem that this is really incoherent distinction at once you're here you have a machine in the ordinary workings of any kind of machine  has to be maintained if you want to make sure that your have reliable machines you keep a record of whether there's maintenance so that's being done the problem is then you get a lawyer involved and the lawyer comes and says what should this form look like we want to put in a bunch of stuff  into this to make sure and especially because there's actually a statute is tuesday the same it's the same statute those two requirements one is a requirement imposed on the state police that they make these machines make sure these machines work but the other is that it has to be proven in court that the machine worked and was properly maintained so now your proper maintenance record is automatically going to overlap with a record that everybody knows is going to be used in court so the regular you know and of course it gets fancy and it's seems to me a little odd to think that if some technician jotted down some notes on a piece of paper showed up on such and such a day checked out machine it works  machine initialed that could come in but because some lawyer designed a form that looks a little more like a formal certification that it can't come in it's all kind of nonsensical as a standard and that's the problem you've got it's both it's a maintenance record and it's a maintenance record that everybody knows is one day going to show up in court every time that machine is used and gets a positive result after that not through yet and supreme court has made clear just because there's an incident incidental purpose for litigation that doesn't affect the primary what's incidental look primary in that world it's it is both is the problem yes i mean and we would argue here initially as the court recognized which is why i haven't dealt with it too much if the supreme court has explicitly carved these types of records out of its holdings if it's not in the holdings the supreme court has made clear that there can't be a basis for he has really a couple of other points i just want to make first of all even if we ignore it which we should not do but even if we ignore it the admission of these records was harmless error as to two of the three counts of conviction to defend it was convicted of common law driving while intoxicated which doesn't require the admission the proof of any looking at a even if we were looking at this than we would argue because that's based on the trooper's observations the trooper's observations and other missions which are corroborated during his testimony at trial that he had been drinking on the afternoon that he was arrested how can it be harmless if  you've got what is the someone is always a disputable question whether the trooper observed he admits he'd been drinking but he said in drink that much and he was an intoxicated and now you come with a scientific instrument that says his blood alcohol was a level that automatically makes it intoxicated for purposes of this other statute how can the jury separate that and say oh but that doesn't count i can put that entirely on one side and assess this solely on the basis of rather disputed facts and your honor i might or i might agree with you if if it was soley trooper manuals account but he had the crowd reading testimony of another trooper who showed up at the arrest and most importantly he had a defendant's admissions that he had been drinking that afternoon which the defendant then corroborated at trial by admitting that he had had two cocktails and a beer that afternoon in the light of that overwhelming evidence that he was intoxicated or impaired that afternoon it was undisputed the defendant had been drinking that afternoon and that he drank that he had consumed three alcoholic beverages but it but again and the one the one other point about the the distinction between i just want to get one more point the distinction between maintenance records and the records at issue in the land is the as a book coming even before crawford came out this court had recognized that the crux of the confrontation clause was accusatory equally the case arriving miller it was a b s case in two thousand and two this court stated that the conversation clause is concerned with statements that target only that testimony that contains accusations against the defendant the supreme court has recognize dissenters and justice thomas together and williams you have five justices who specifically reject that theory as a basis for making confrontation determination i think they reject that as the specific test that you should use to determine but as a district court thank  you speaking to judge ray crawford and supporting that this is a document more than a meeting its record in that language about clear inaccurate it's it is expert expression of and you would take that witness aside but forget about the rest of the movements document is a separate that is the ultimate fact on the critical disputed issue in this case there was no other disputed issue was it working or is it accurate and reliable just as and i'm just document that the the witness the analyst should have been there to be cross examined and here for example would be objection i'm asking you was the objection to the entire document as i take it there was an objection to the entire document that was overruled was there then a specific objection to the language that drake are for for do that at least that is not a maintenance record well i don't have a specific record of recollection right now i would submit that the objections that were made and it was a lengthy objection expressing why this was a violation of confrontation clause in attempts to cross examination on multiple fronts here shut down shut down because you could you had the trooper you didn't have  any objection or the whole proceeding was clearly clearly preserved here well let me just say it you know you can imagine cross examination that statement of that this is this is accurate and reliable it has a undisputed ten percent margin of error but the question is is it a maintenance record or not it's not a question of is it reliable the question is is it a maintenance record or is it something else or at least that's that's a question and that's the question i'm focusing on it is is it it i a record that says things and in it contains statements that are more than mere maintenance so the objection was made to the entire record on multiple grounds so also here just as illustrations picture this is cross examination expired breath that that machine is based on the assumption that it has a thirty six degree centigrade expired breath temperature we know that that the study on which it is based was false nine hundred fifty s there is is not reliable it's  expired broth temperature of thirty nine point nine probably about a ten percent error already built into the machine reading hard fuel the fuel cell degrades when that degrades a certain point it can't measure properly we had here the defense perspective i would imagine that the name of the person i mr jones is the one you tested this piece of equipment is that you know who the tester is and you can use your subpoena power to bring them to trial if you want there or there may be in correct me if i'm misunderstanding there may be a grievous reliability concerns with these instruments but that's not the issue before us we're focusing on whether it's testimonial or not because this is not directed right at this point point argument you're making at reliability but it whether the state court and reasonably determined that these documents were not testimony we can't we cannot say  discovery is a prize of information about the use of these instruments you can't also rely assume it on the state court determination here and say look let's look at what facts if it's applied the law wrong legal standard we submit that they did it is not it is in conflict with no in those days so whatever result is you say factually we don't know because the standard we submit is wrong or your argument yes last we can i just one last thing if we just assume that this is the maintenance record maintenance records on these things are it's huge reams on computers this is only a single document this is a formalized document created the the it's on the state computers it's called cobra data that's the name and it's records that's the stuff that's not submitted into court if it probably stacked this high on that bertha lies or this is a document prepared specifically to support a prosecution of a defendant mr cook