PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 05-4883

DWONNE A. WASHINGTON,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(CR-05-63)

Argued: March 13, 2007

Decided: August 22, 2007

Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion,

in which Judge Traxler joined. Judge Michael wrote a dissenting

opinion. 

COUNSEL

ARGUED: Lauren Elizabeth Case, Staff Attorney, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant. Hollis Raphael Weisman, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public

Defender, Lisa W. Lunt, Assistant Federal Public Defender, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for

Appellant. Rod J. Rosenstein, United States Attorney, Baltimore,

Maryland, for Appellee.

OPINION

NIEMEYER, Circuit Judge: 

Dwonne Washington was convicted of driving on the BaltimoreWashington Parkway, in the territorial jurisdiction of the United

States in Prince George’s County, Maryland, while under the influence of alcohol or drugs, in violation of 36 C.F.R. § 4.23(a)(1), and

of unsafe operation of a vehicle, in violation of 36 C.F.R. § 4.22. 

At trial, the government offered, over Washington’s objection, the

expert testimony of Dr. Barry Levine, the Director of the Forensic

Toxicology Laboratory of the Armed Forces Institute of Pathology, to

prove that a blood sample, taken from Washington the night of his

arrest and tested at Dr. Levine’s lab, contained phencyclidine ("PCP")

and alcohol and that Washington’s conduct and unsafe driving during

the night of his arrest were attributable to the presence of PCP and

alcohol in Washington’s blood. In Washington’s view, the raw data

generated by the forensic lab’s diagnostic machines and relied on by

Dr. Levine to give his testimony amounted to testimonial hearsay

statements of the lab technicians who operated the machines. As a

result, Washington claims that Dr. Levine’s testimony was not admissible, as Washington had a right to confront the technicians and crossexamine them by reason of the Sixth Amendment’s Confrontation

Clause. See Davis v. Washington, 126 S. Ct. 2266 (2006); Crawford

v. Washington, 541 U.S. 36 (2004).

The magistrate judge overruled Washington’s objection, admitted

Dr. Levine’s testimony, and found Washington guilty of the charges.

On appeal, Washington continues to maintain that the machinegenerated data amounted to testimonial hearsay statements of the

machine operators, and that at trial, Dr. Levine merely restated the

hearsay statements of the operators, in violation of the Confrontation

Clause and the hearsay rule. See Fed. R. Evid. 802. 

2 UNITED STATES v. WASHINGTON
Without deciding whether Dr. Levine’s testimony actually introduced into evidence the raw data on which he relied to give his testimony, we nonetheless conclude that the data on which Dr. Levine

relied (1) did not constitute the statements of the lab technicians; (2)

were not hearsay statements; and (3) were not testimonial. Accordingly, we conclude that the magistrate judge did not abuse his discretion in admitting the testimony of Dr. Levine and affirm. 

I

At 3:30 a.m. on January 3, 2004, Officer Gary Hatch of the United

States Park Police was patrolling the Baltimore-Washington Parkway

when he saw a car going approximately 30 miles per hour in an area

posted with a speed limit of 55 miles per hour. Officer Hatch stated

that it was "as though [the car] was almost standing still." Officer

Hatch turned on his siren and flashing lights to pull the car over to

find out "why they were going so slow," but the car did not stop.

Accelerating and decelerating, pulling off onto the shoulder, and then

back onto the road, the car continued to meander along the parkway

as Officer Hatch pursued it with his siren and flashing lights. Only

with the assistance of another park police officer, who maneuvered in

front of the car, was Officer Hatch able to force the car to stop. 

Officer Hatch approached the car and saw Dwonne Washington in

the driver’s seat staring disaffectedly straight ahead. Washington did

not respond to Officer Hatch’s directives to show his hands or to open

the car door. According to Officer Hatch’s experience, when someone

is completely unresponsive to commands or his surroundings, he is

usually under the "influence of some type of narcotic or strong influence of alcohol." When Officer Hatch opened the door, he caught a

"very strong smell of PCP." 

Officer Hatch removed Washington from the car, placed him in

handcuffs, and again asked him "basic questions to see if he would

start responding to anything." Washington did not respond to any of

Officer Hatch’s questions, "including simply what his name was,"

although Washington did say that he had "smoked a little something

earlier." Based on the strong PCP odor and Washington’s flat, unresponsive demeanor, Officer Hatch took Washington to a hospital

where Washington agreed to give a blood sample for testing. The

UNITED STATES v. WASHINGTON 3
blood sample was sent for analysis to the Armed Forces Institute of

Pathology, a branch of the Department of Defense, which performs

alcohol and drug testing for Walter Reed Hospital as well as for military and civilian court cases. Officer Hatch requested that the sample

be tested for "ethanol" and for "other drugs."

The Institute’s Forensic Toxicology Laboratory subjected the blood

sample to "headspace gas chromatography" to identify whether ethanol was in the blood and to "immunoassay or chromatography" to

screen for the presence of amphetamine, barbiturates, benzodiazepines, cannabinoids, cocaine, opiates, and phencyclidine, using a

Hewlett Packard HP 6890 Series gas chromatograph machine and

computers with HP ChemStation software. After lab technicians subjected the blood sample to testing, the instruments printed out some

20 pages of data and graphs. Based on the data, the director of the lab

and its chief toxicologist, Dr. Barry Levine, issued a report to the

United States Park Police, stating that the blood sample "contained 27

mg/dL of ethanol" and that the sample tested positive for phencyclidine, containing "0.04 mg/L of phencyclidine as quantitated by gas

chromatograph/spectrometry." While Dr. Levine did not see the blood

sample and did not conduct any of the tests himself, three lab technicians operating under his protocols and supervision conducted the

tests and then presented the raw data from the tests to him.

The raw data were mechanical computer printouts with each page

headed by the date of the test, the machine operator, an identification

of the sample, its dilution factor, and other similar information, and

containing computer-generated graphs and data reporting the results

produced by the chromatograph machine. 

Based on Dr. Levine’s report, the government charged Washington

by citation with driving under the influence of alcohol or drugs,

unsafe operation of a vehicle, and other Class B misdemeanors relating to his driving and arrest. 

At trial, the court accepted Dr. Levine as an expert witness and

admitted his testimony under Rules 702 and 703 of the Federal Rules

of Evidence, concluding that Dr. Levine was (1) "somebody who is

qualified to give his opinion as to the results of the tests performed

on blood samples in this particular case," and (2) "as an expert toxi4 UNITED STATES v. WASHINGTON
cologist as to the toxic effects of PCP and alcohol on human behavior." In his testimony, Dr. Levine summarized his report, stating that

the tests showed that Washington’s blood ethanol concentration was

27 milligrams per deciliter and his phencyclidine concentration was

.04 milligrams per liter. Dr. Levine also gave his expert opinion that

the presence of PCP and alcohol in Washington’s blood was consistent with "the behavior of somebody who was non-responsive to a

police officer on the side of a road," as Officer Hatch had reported in

this case about Washington.

Washington objected to Dr. Levine’s testimony insofar as he stated

that Washington’s blood sample contained PCP and alcohol, arguing

that Dr. Levine never personally saw his blood sample nor personally

performed the testing. Washington argued that Dr. Levine’s reliance

upon the raw data obtained by his lab technicians from the diagnostic

machines violated his rights under the Confrontation Clause of the

Sixth Amendment. In Washington’s view, he was entitled to confront

the lab technicians who actually saw his blood and placed it in the

testing machines. 

The magistrate judge overruled Washington’s objections and

admitted Dr. Levine’s testimony. At the conclusion of the two-day

trial, the magistrate judge found Washington guilty of the crimes

charged and sentenced him to 60 days’ imprisonment. The district

court affirmed, and this appeal followed, raising solely the question

of the admissibility of Dr. Levine’s testimony. 

II

Washington begins his argument with the observation that "Dr.

Levine did not participate in any of the testing on the blood sample

in this case." Rather, he notes, Dr. Levine relied upon data generated

by the lab’s diagnostic machines, operated by various lab technicians.

He then argues that these "reports" of raw data were hearsay "testimonial statements," as articulated in Crawford v. Washington, 541 U.S.

36 (2004), of the various lab technicians. Because the technicianwitnesses were not unavailable, Washington concludes that it was a

violation of his rights under the Confrontation Clause not to have the

technicians in the courtroom and instead to admit their hearsay stateUNITED STATES v. WASHINGTON 5
ments — i.e., the machine-generated reports of raw data — through

Dr. Levine’s testimony. 

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him." U.S. Const. amend. VI. In Crawford, the

Supreme Court held that the Confrontation Clause bars the "admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination." 541 U.S. at 53-54 (emphasis

added). Only "testimonial statements" "cause the declarant to be a

‘witness’ within the meaning of the Confrontation Clause. It is the

testimonial character of the statement that separates it from other

hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis v. Washington, 126 S. Ct. 2266, 2273 (2006) (citation omitted). 

In the case before us, the "statements" in question are alleged to be

the assertions that Washington’s blood sample contained PCP and

alcohol. But those statements were never made by the technicians

who tested the blood. The most the technicians could have said was

that the printed data from their chromatograph machines showed that

the blood contained PCP and alcohol. The machine printout is the

only source of the statement, and no person viewed a blood sample

and concluded that it contained PCP and alcohol. Yet, the very same

data that would have permitted the lab technicians to say that the

blood contained PCP and alcohol were also seen and interpreted by

Dr. Levine. Moreover, those data were the only basis upon which Dr.

Levine stated in court that the blood sample contained PCP and alcohol. In short, the inculpating "statement" — that Washington’s blood

sample contained PCP and alcohol — was made by the machine on

printed sheets, which were given to Dr. Levine. The technicians could

neither have affirmed or denied independently that the blood contained PCP and alcohol because all the technicians could do was to

refer to the raw data printed out by the machine. Thus, the statements

to which Dr. Levine testified in court — the blood sample contained

PCP and alcohol — did not come from the out-of-court technicians,

and so there was no violation of the Confrontation Clause. 

Moreover, there would be no value in cross-examining the lab

technicians on their out-of-court statements about whether the blood

6 UNITED STATES v. WASHINGTON
sample tested positive for PCP and alcohol because they made no

such statements. They would only be able to refer to the machine’s

printouts, which Dr. Levine also had. The value of cross-examination

might relate to authentication or to a description of the machines or

to the chain of custody, but none of these were issues at trial, nor are

they issues on appeal. Whether the machines properly reported PCP

or alcohol is determined by the raw data that the machines generated,

and its truth is dependent solely on the machine. 

Thus, we reject the characterization of the raw data generated by

the lab’s machines as statements of the lab technicians who operated

the machines. The raw data generated by the diagnostic machines are

the "statements" of the machines themselves, not their operators. But

"statements" made by machines are not out-of-court statements made

by declarants that are subject to the Confrontation Clause. 

A "statement" is defined by Federal Rule of Evidence 801(a) as an

"(1) oral or written assertion or (2) nonverbal conduct of a person, if

it is intended by the person as an assertion."1 (Emphasis added). Obviously, the lab technicians made no statements of any kind, and they

did not say or write the information generated by the machines. The

machines generated data by manipulating blood through a common

scientific and technological process. The lab technicians’ role was

simply to operate the machines. The "statement" that Washington’s

blood contained PCP and alcohol is a conclusion drawn only from the

machines’ data, and its source was independent of human observation

or reporting. Only the machine, through its diagnostic and technical

process, could provide facts about the chemical composition of Washington’s blood. Accordingly, the raw data generated by the machines

were not the statements of technicians.2

1While the hearsay rules of the Federal Rules of Evidence do not formally demarcate the scope of "statements" for Confrontation Clause purposes, we take this definition to be uncontroversial, especially since the

Sixth Amendment provides the right to confront (human) "witnesses." 

2Contrary to the dissent’s assertion, which makes no distinction

between a chromatograph machine and a typewriter or telephone, the

chromatograph machine’s output is a mechanical response to the item

analyzed and in no way is a communication of the operator. While a

UNITED STATES v. WASHINGTON 7
Additionally, this raw data generated by the machines were not

hearsay statements as implicated by the Confrontation Clause. Hearsay is understood to be "a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in evidence

to prove the truth of the matter asserted." Fed. R. Evid. 801(c)

(emphasis added). "A declarant is a person who makes a statement."

Fed. R. Evid. 801(b) (emphasis added). And a "statement," to repeat,

is an "(1) oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion." Fed. R. Evid.

801(a) (emphasis added). Only a person may be a declarant and make

a statement. Accordingly, "nothing ‘said’ by a machine . . . is hearsay." 4 Mueller & Kirkpatrick, Federal Evidence, § 380, at 65 (2d ed.

1994). See United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th

Cir. 2005) (concluding that the computer-generated header information accompanying pornographic images retrieved from the Internet

was not a hearsay statement because there was no "person" acting as

a declarant); United States v. Khorozian, 333 F.3d 498, 506 (3d Cir.

2003) (concluding that an automatically generated time stamp on a

fax was not a hearsay statement because it was not uttered by a person); People v. Holowko, 486 N.E.2d 877, 878-79 (Ill. 1985) (concluding "that the printout of results of computerized telephone tracing

equipment is not hearsay evidence" but rather "a self-generated record

of its operations") (citations omitted). 

In short, the raw data generated by the machines do not constitute

"statements," and the machines are not "declarants." As such, no outof-court statement implicating the Confrontation Clause was admitted

into evidence through the testimony of Dr. Levine. 

Any concerns about the reliability of such machine-generated

information is addressed through the process of authentication not by

hearsay or Confrontation Clause analysis. When information provided

by machines is mainly a product of "mechanical measurement or

manipulation of data by well-accepted scientific or mathematical

typewriter or telephone transmits the communicative assertion of the

operator, the chromatograph machine transmits data it derives from the

sample being analyzed, independent of what the operator would say

about the sample, if he or she had anything to say about it. 

8 UNITED STATES v. WASHINGTON
techniques," 4 Mueller & Kirkpatrick, supra § 380, at 65, reliability

concerns are addressed by requiring the proponent to show that the

machine and its functions are reliable, that it was correctly adjusted

or calibrated, and that the data (in this case, the blood) put into the

machine was accurate (i.e., that the blood put into the machine was

the defendant’s). In other words, a foundation must be established for

the information through authentication, which Federal Rule of Evidence 901(b)(9) allows such proof to be authenticated by evidence

"describing [the] process or system used to produce [the] result" and

showing it "produces an accurate result." But none of these concerns

were issues below, nor are they issues in this appeal.3

Finally, the supposed "hearsay statements" made by the machines

were not "testimonial" in that they did not involve the relation of a

past fact of history as would be done by a witness. See Davis, 126

S. Ct. at 2276-77. In Davis, the Court concluded that the transcript of

a 911 call, in which the caller identified the defendant as one who was

assaulting her, did not contain "testimonial statements," requiring the

prosecution to present the declarant in court. "Rather than describing

past events," the statements by the 911 caller were "speaking about

events as they were actually happening," made for purposes of

addressing an ongoing emergency. 126 S. Ct. at 2276. At bottom, the

Court observed that the 911 call took place "to meet an ongoing emergency" and that the caller was not testifying as a "witness," in a form

that would be a "weaker substitute for live testimony" about events

witnessed. Id. at 2277. Similarly, the reports generated by the

machines were not testimonial in that they were not relating past

events but the current condition of the blood in the machines. To the

extent that they contain assertions of fact, they say simply that "this

3The dissenting opinion universally mixes authentication issues with

its argument about "statements" from the machine that the blood contains

PCP and alcohol. Obviously, if the defendant wished to question the

manner in which the technicians set up the machines, he would be entitled to subpoena into court and cross-examine the technicians. But once

the machine was properly calibrated and the blood properly inserted, it

was the machine, not the technicians, which concluded that the blood

contained PCP and alcohol. The technicians never make that determination and accordingly could not be cross-examined on the veracity of that

"statement." 

UNITED STATES v. WASHINGTON 9
blood sample that has been put into the machine tests positive for PCP

and alcohol." The machine’s "statement" relates solely to the present

condition of the blood, without making any links to the past. While

Dr. Levine did provide "testimony" connecting the blood sample with

Washington’s past behavior, this testimony was presented in court in

conformity with the Confrontation Clause, was properly authenticated, and is not challenged on appeal. 

As the machine’s output did not "establish or prove past events"

and did not look forward to "later criminal prosecution" — the

machine could tell no difference between blood analyzed for healthcare purposes and blood analyzed for law enforcement purposes —

the output could not be "testimonial." Davis, 126 S. Ct. at 2273-74.

Because raw data printed out by the machines are not testimonial

hearsay statements, Dr. Levine’s testimony using those data did not

violate the Confrontation Clause, nor the hearsay rule, and the magistrate judge did not err in admitting the testimony of Dr. Levine. 

Accordingly, the judgment of the district court is 

AFFIRMED.

MICHAEL, Circuit Judge, dissenting: 

The Sixth Amendment’s Confrontation Clause bars "admission of

testimonial statements of a witness who did not appear at trial unless

he was unavailable to testify, and the defendant had a prior opportunity for cross-examination." Crawford v. Washington, 541 U.S. 36,

53-54 (2004). In this case testimonial statements (laboratory test

results) of witnesses (laboratory technicians) who did not appear at

trial were introduced against Dwonne Washington. Accordingly, I

respectfully dissent from the majority’s holding that the admission of

the test results did not violate Washington’s Confrontation Clause

right. Unlike the majority, I conclude that (1) the test results are the

hearsay statements of the laboratory technicians; (2) the statements

are testimonial; and (3) the defendant, and not this court, must determine whether there would be value in cross-examining the technicians. 

10 UNITED STATES v. WASHINGTON
The laboratory test results in this case, which were offered to prove

that Washington’s blood contained intoxicating levels of phencyclidine (PCP) and alcohol, were the hearsay statements of the technicians who ran the tests. The test results, although computer-generated,

were produced with the assistance and input of the technicians and

must therefore be attributed to the technicians. For this reason, the

majority is mistaken in concluding that "[t]he raw data generated by

the diagnostic machines [or computers] are the ‘statements’ of the

machines themselves." See ante at 7. 

Courts consistently consider computer-generated assertions of fact

as hearsay statements that are admissible only under one of the exceptions to the hearsay rule. See United States v. Blackburn, 992 F.2d

666 (7th Cir. 1993) (computer printouts of lensometer readings);

United States v. Enterline, 894 F.2d 287 (8th Cir. 1990) (computer

report identifying vehicle as stolen); United States v. Baker, 855 F.2d

1353 (8th Cir. 1988) (laboratory analyses of controlled substances);

United States v. DeWater, 846 F.2d 528 (9th Cir. 1988) (breathalyzer

test result); United States v. Hardin, 710 F.2d 1231 (7th Cir. 1983)

(computer-generated graph of data collected by law enforcement);

United States v. McKinney, 631 F.2d 569 (8th Cir. 1980) (blood test

results); State v. Madorie, 156 S.W.3d 351 (Mo. 2005) (breathalyzer

test result); City of Helena v. Hoy, 809 P.2d 1255 (Mont. 1991)

(same). As these cases show, the majority is wrong in its claim that

computer printouts or mechanical transmissions that do not directly

transcribe the written or spoken words of humans are exempt from the

hearsay rule. 

In only one circumstance is a computer-generated assertion not

considered the statement of a person: when the assertion is produced

without any human assistance or input. In United States v. Hamilton,

413 F.3d 1138 (10th Cir. 2005), one of two federal cases relied on by

the majority, the Tenth Circuit concluded that the computer-generated

header information that accompanied a pornographic image on the

internet was not a hearsay statement. "Of primary importance to this

ruling," however, "[wa]s the uncontroverted fact that the header information was automatically generated by the computer . . . without the

assistance or input of a person." Id. at 1142 (emphasis added). Similarly, in United States v. Khorozian, 333 F.3d 498 (3d Cir. 2003), the

other federal case cited by the majority, the Third Circuit determined

UNITED STATES v. WASHINGTON 11
that the transmission information on a faxed document was not a

hearsay statement because it was automatically generated by the fax

machine. But see United States v. Salgado, 250 F.3d 438 (6th Cir.

2001) (stating that telephone numbers recorded and stored by computer were hearsay statements that were admissible under the business

records exception); United States v. Linn, 880 F.2d 209 (9th Cir.

1989) (same). 

Unlike the header information on a web page or fax, computerized

laboratory equipment cannot detect, measure, and record toxin levels

in blood samples without the assistance or input of a trained laboratory technician. The toxicology tests on Washington’s blood in this

case were conducted by technicians at the Armed Forces Institute of

Pathology. These technicians undergo extensive training before they

are certified to perform the tests. A technician conducting a blood toxicology test must follow a "step-by-step procedure." J.A. 48. He must,

among other things, calibrate the testing instrument; withdraw the

appropriate portion of blood from the larger sample; insert, without

contamination, the smaller test sample into the instrument; initiate the

test; and monitor the instrument while the test is in progress. Finally,

as the record in this case reveals, the technician reviews and annotates

the results and signs the report. In light of the significant role that the

technician plays in conducting the test and generating accurate results,

the results cannot be attributed solely to the machine. As a result, the

toxicology test results must be considered statements of the laboratory

technicians for both evidentiary and Confrontation Clause purposes.1

The test results are testimonial statements, notwithstanding the

majority’s argument to the contrary. The Supreme Court in Crawford,

rather than specifically defining "testimonial," provided examples that

constitute the "core class of ‘testimonial’ statements." 541 U.S. at 51.

Among these are "pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. The Court further clarified

the meaning of "testimonial" in Davis v. Washington, 126 S. Ct. 2266

(2006), stating that courts should also consider the "primary purpose"

1The government does not contend that the test results are not statements. At trial it conceded that the results are hearsay statements, but

argued that they are admissible under the business records exception. See

Fed. R. Evid. 803(6). 

12 UNITED STATES v. WASHINGTON
of the statement. A statement is not testimonial, for example, if its

"primary purpose . . . is to enable police assistance to meet an ongoing emergency." Id. at 2273. A statement is testimonial, on the other

hand, "when the circumstances objectively indicate . . . that the primary purpose of the [statement] is to establish or prove past events

potentially relevant to later criminal prosecution." Id. at 2273-74. 

The laboratory test results in this case are testimonial as contemplated by Crawford and Davis. First, the laboratory technicians who

conducted the blood tests should have expected that the results would

be used for criminal prosecution. The sample of Washington’s blood

that was sent to the testing laboratory was accompanied by a "Police

Officer’s Report" that identified Washington by name, offense (DUI),

and date of arrest. See United States v. Magyari, 63 M.J. 123, 127

(C.A.A.F. 2006) (stating that "lab results . . . may become testimonial

where a defendant is already under investigation, and where the testing is initiated by the prosecution to discover incriminating evidence"). Second, the primary purpose of the blood tests was to prove

an essential element of the offense for which Washington was

charged, specifically the presence of PCP and alcohol in his blood.

For these reasons, the test results are testimonial. See State v. March,

216 S.W.3d 663, 666 (Mo. 2007) (lab report identifying crack cocaine

is testimonial); City of Las Vegas v. Walsh, 91 P.3d 591, 595 (Nev.

2004) (affidavit of nurse who drew defendant’s blood is testimonial);

State v. Moss, 160 P.3d 1143, 1149 (Ariz. Ct. App. 2007) ("We conclude that the proposed testimony of [former laboratory director]

reporting [defendant’s] blood test results would constitute testimonial

evidence within the meaning of Crawford."); People v. Rogers, 8

A.D.3d 888, 891-92 (N.Y. App. Div. 2004) (admission of blood alcohol test violated Confrontation Clause); Johnson v. State, 929 So. 2d

4, 7 (Fla. Dist. Ct. App. 2005) ("lab report prepared pursuant to police

investigation and admitted to establish an element of a crime is testimonial hearsay"); State v. Crager, 844 N.E.2d 390, 397 (Oh. Ct. App.

2005) (lab reports and DNA reports are testimonial if they "are prepared solely for prosecution"); State v. Miller, 144 P.3d 1052, 1060

(Or. Ct. App. 2006) (lab report concluding urine contained methamphetamine is testimonial); cf. United States v. Oates, 560 F.2d 45, 80-

81 (2d Cir. 1977) (concluding, pre-Crawford, that admitting chemist

UNITED STATES v. WASHINGTON 13
report against the defendant could violate his Confrontation Clause

right).2

The majority’s conclusion that the blood test results are not testimonial because they "relate[ ] solely to the present condition of the

blood," ante at 10, is not defensible. Again, according to Davis, the

question is whether the primary purpose of the statement is to prove

a past event relevant to prosecution. 126 S. Ct. at 2273-74. Here, U.S.

Park Police Officer Gary Hatch took Washington to a hospital after

his arrest, where a blood sample was taken. The sample was taken in

an effort to prove that Washington’s blood contained PCP and alcohol

at the time he was pulled over on the Baltimore-Washington Parkway.

The government could only prove that Washington had intoxicants in

his blood at the time of the stop by showing their continued presence

shortly thereafter. Thus, although the test results show the levels of

PCP and drugs in Washington’s blood at the time the sample was

taken, the purpose of the test was to prove a past event relevant to

prosecution. 

Finally, it is not for the majority to say that "there would be no

value in cross-examining the lab technicians." Ante at 6. A defendant’s right to confront witnesses against him does not depend on

whether a court believes that cross-examination would be useful. Cf.

Crawford, 541 U.S. at 62 ("Dispensing with confrontation because

testimony is obviously reliable is akin to dispensing with jury trial

because a defendant is obviously guilty."). The strategic decision of

2

I recognize that laboratory test results are not always testimonial.

Many tests are conducted for purposes other than gathering evidence for

a criminal prosecution, and there are circumstances when the technician

does not have any reason to believe that the results will be used in a prosecution. The results of laboratory tests performed with respect to a person not suspected of illegal activity, for example, would not be

testimonial because the technician performing the test would not have

reason to believe that the results would be used at trial. See Magyari, 63

M.J. at 127 ("Because the lab technicians were merely cataloging the

results of routine tests, the technicians could not reasonably expect their

data entries would ‘bear testimony’ against the [defendant]."). Similarly,

tests performed in the course of medical treatment would not be testimonial so long as the primary purpose of the tests was to assist in the treatment of the patient. 

14 UNITED STATES v. WASHINGTON
whether to cross-examine a laboratory technician is one for the defendant to make. Although in many cases a defendant may choose not

to exercise this right, cross-examination of laboratory technicians may

be useful in some instances. Forensic test reports are not always accurate. Testing errors are sometimes caused by technician inexperience,

sample contamination, failure to follow laboratory protocols, or

breaks in the chain of custody. Furthermore, on rare occasions laboratory technicians have "engage[d] in long-term systematic, and deliberate falsification of evidence in criminal cases." Pamela R. Metzger,

Cheating the Constitution, 59 Vand. L. Rev. 475, 499 (2006). In one

notorious case, a forensic serologist at the West Virginia Department

of Public Safety falsified hundreds of forensic tests between 1979 and

1989. Id. The best way to expose errors or falsification in testing is

through cross-examination of the laboratory technician. See Crawford, 541 U.S. at 61 (stating that the reliability of testimony is best

determined "in the crucible of cross-examination"). 

In sum, the laboratory test results admitted against Washington

were testimonial statements. Washington therefore had the right to

confront and cross-examine the technicians who conducted the tests

on his blood. Because Washington was not provided this opportunity,

and the government does not contend that the witnesses were unavailable, his Confrontation Clause right was violated.

UNITED STATES v. WASHINGTON 15