TONY RACKAUCKAS, DISTRICT ATTORNEY COUNTY OF ORANGE, STATE OF CALIFORNIA BY: M.

ADAM TATE Deputy District Attorney State Bar Number 280017 4601 JAMBOREE ROAD., STE 102 NEWPORT BEACH, CA 92660 TELEPHONE: (949) 476-4650 FAX: (949) 476-4623 Attorneys for Plaintiff IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, HARBOR JUSTICE CENTER ) THE PEOPLE OF THE STATE OF CALIFORNIA, ) Case No. ) Plaintiff, ) POINTS AND AUTHORITIES IN ) OPPOSITION TO DEFENDANTS vs. ) ) MOTION ) ) Date: [Defendant], ) Dept: As Posted ) Time: 8:30 AM ) Defendant(s) ) )

I. BLOOD EVIDENCE CAN BE ADMITTED OVER A CHAIN OF CUSTODY OBJECTION EVEN IF THE PHLEBOTOMIST IS UNAVAILABLE TO TESTIFY.

In a chain of custody claim, the burden is on the party offering the evidence to show that, taking all the circumstances into account, it is reasonably certain that there was no alteration. People v. Catlin, 26 Cal.4th 81, 134. The reasonably certain standard does not require the party offering the evidence to negate all possibility of tampering by presenting a perfect chain of custody. Id.; People v. Riser, 47 Cal.2d 566, 580. Rather, a court may properly admit evidence where there are gaps in the chain of custody so long as the links offered raise no serious questions that the evidence was tampered with. Id. Where evidence is admitted despite an imperfect chain of

custody, doubts of the evidences accuracy may still be considered when weighing the evidence. People v. Diaz, 3 Cal.4th 559, 559; United States v. Lott, 854 F.2d 244, 250. The United States Supreme Court clearly explained this standard the Melendez-Diaz v. Massachusetts decision. It stated, [W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case. While the dissent is correct that [i]t is the obligation of the prosecution to establish the chain of custody, post, at 2546, this does not mean that everyone who laid hands on the evidence must be called. . . gaps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility. It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Melendez-Diaz v. Massachusetts, 557 U.S. 305, fn 1.

In People v. Hall, the California Court of Appeals considered whether blood work could be admitted over a chain of custody objection when the phlebotomist who drew that blood was unavailable to testify. People v. Hall, 187 Cal.App.4th 282. The defense argued that the blood should be inadmissible because the court could not be reasonably certain that the evidence is accurate. The defense pointed out that it was unclear who took the blood sample, whether the proper procedure was followed, how the blood sample was transported, and where the blood sample had been before it was analyzed. Id. at 293. Despite the defenses objections, the Court admitted the blood work. The Court reasoned that the blood work was admissible because the people were able to prove that the phlebotomist who drew the blood had been properly trained, that there were strict procedures on how to transport and analyze blood samples, and that there was no indication that the blood vial had previously been opened. Id. at 293-97.

Accordingly, in the instant case, this Court should hold that blood work drawn by the Peoples phlebotomist is admissible even if she is unavailable to testify. While the chain of custody is imperfect, there is sufficient evidence to conclude that the blood work has not been tampered with. Like the phlebotomist in Hall, our phlebotomist has been properly trained and is required to follow strict procedures when transporting and analyzing blood samples. Likewise, the crime lab is able to determine whether a blood vial has been opened or tampered with before it has been analyzed. Furthermore, the arresting officer can provide testimony that according to his

recollection the blood draw was done properly. The defense may try and distinguish Hall from the instant case on the grounds that the blood in Hall was drawn at a hospital. Hospital employees have no skin in the game and are therefore less likely to alter evidence. Id. at 296. By contrast, our phlebotomists work with the police and have more incentive to tamper evidence. Nonetheless, this Court should hold that the blood work is admissible. As the Court explained in People v. Diaz, where the evidence of tampering is merely speculative, it is proper to admit the evidence and let what doubt remains go to its weight. People v. Diaz, 3 Cal.4th 559, 559. Thus, defense counsel is free to argue that the blood work may have been tampered with, but unless his argument involves more than a mere suspicion, the blood work is admissible.
II.

BLOOD EVIDENCE CAN BE ADMITTED OVER A CRAWFORD OBJECTION EVEN IF THE PHLEBOTOMIST IS UNAVAILABLE TO TESTIFY.

A. Failing to call a phlebotomist does not violate Crawford because the People are not introducing a testimonial statement by the phlebotomist. The Sixth Amendment to the United States Constitution provides that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. In Crawford v. Washington, the United States Supreme Court considered whether this provision,

known as the Confrontation Clause, applied only to statements made by a witness in court, or whether it also applied to admissible out of court statements. Crawford v. Washington, 541 U.S. 36. The Court noted that a plain textual reading of the Confrontation Clause did not resolve this issue; and accordingly, turned to the clauses historical underpinnings. Id. at 42. The Court determined that the framers constructed the clause for two purposes. First, the Confrontation Clause was intended to disallow ex parte interrogations of the accused from being admitted. Id. at 50. Second, the confrontation clause was designed to exclude testimonial statements from being admitted at trial unless the witness was unavailable and the defendant had a prior opportunity for cross examination. Id. at 53. Armed with this historical understanding, the Court held that out of court statements which are testimonial in nature are barred unless witnesses are unavailable and defendants had a prior opportunity to cross examine the witnesses. Id. at 68. However, the Court was careful to note that Crawford only applies to testimonial statements. It reasoned that the framers would have wanted to grant the states flexibility in deciding which types of nontestimonial statements are reliable enough to be admissible. Id. Thus, out of court nontestimonial statements are admissible unless they are barred by some other rule of evidence such as hearsay. The Court refused to provide a comprehensive definition of testimonial statements. Id. at 68. However, the Court did not leave the lower courts completely guideless. The Court noted the Confrontation Clause applies to those who bear testimony and that the American Dictionary defines testimony as [A] solemn declaration or affirmation made for the purpose of establish or proving some fact. Id. at 70. The Court also provided some examples of statements that were

obviously testimonial such as affidavits, ex parte in-court examinations, custodial examinations, or formalized extrajudicial statements which might be used at trial. Id. at 51. Although the testimonial statement standard is somewhat unclear, see Crawford v. Washington, 541 U.S. 36, 76 (Rehnquist dissenting), it stands to reason that, at the very least, testimonial statements involve a statement. A person who remains silent cannot bear testimony. Nor can their silence cannot be interpreted as a solemn declaration or affirmation. The failure to testify is also strikingly dissimilar to affidavits and the other examples of testimonial statements provided by the Court. Furthermore, there is no indication that the framers of the Confrontation Clause were concerned about potential witnesses who have not made statements. Rather, the Courts analysis revolved around situations where a witness testified without the procedural safeguard of confrontation. Specifically, the Court noted that the two principal evils to which the Confrontation Clause was directed were ex-parte interrogations and extrajudial statements which were likely to be used at trial. Id. at 50-53. As of date, the People are aware of no case law where a partys silence has been considered a testimonial statement for purposes of Crawford. In this case, the People are not introducing any statement by the phlebotomist. There is no affidavit by the phlebotomist that the blood draw was done correctly, nor any declaration or affirmation whatsoever. Had the People introduced such a statement, then the Defense would arguably have the right to confront the phlebotomists, but where the phlebotomist has said nothing, he is not subject to the Confrontation Clause. B. The Melendez Diaz Decision did not expand the Crawford decision, but was a straight forward application of Confrontation Clause. As explained, supra, the Crawford decision failed provide a clear definition of testimonial statements. Without a concrete definition of testimonial statements the lower courts differed in

opinion on whether scientific analysts and other scientific results were testimonial statements. Some courts felt that scientific reports were testimonial because the analyst was declaring her findings and those findings were likely to be used in court. See e.g. State v. Johnson, 982 So.2d 672. Other courts, including California, felt that the statements were not testimonial because the statements were non accusatory but were neutral statements of scientific facts which had the power to convict as well as acquit. See e.g. People v. Geier, 41 Cal.4th 555. The issue of whether scientific reports are testimonial statements was addressed by the Supreme Court in Melendez-Diaz v. Massachusetts. 129 S.Ct 2527. In Melendez-Diaz, the defendant was charged with distributing and trafficking in cocaine. As part of its evidence the prosecution introduced certificates of state laboratory analysts stating that material seized by the police was cocaine. Id. at 2530. The Supreme Court ruled 5-4 that the certificates were testimonial statements and therefore could not be introduced unless the analysts were subject to cross examination. The Court based its decision on a variety of reasons. First, the particular certificates at issues were affidavits and therefore were solemn declaration[s] or affirmation[s] made for the purpose of establishing some fact. Id. at 2532. Second, the statements were clearly made against the defendant as they proved that the defendant was in possession of cocaine. Finally, the only purpose for the statements was to be used at trial. Id. at 2533. The Melendez-Diaz decision did not expand the Crawford decision in anyway, but rather applied the Crawford rule to a somewhat unique category of testimonial statements. Id. at 2542. In fact, in more than one occasion the Court went out of its way to explain that its decision was a straightforward application of Crawford. See e.g. Id. at 2542 (This case involves little more than the application of our holding in Crawford v. Washington.); id. at 2533 (Respondent and the

dissent advance a potpourri of analytic arguments in an effort to avoid this rather straightforward application of our holding in Crawford.). Not only did Melendez-Diaz not expand Crawford, but a reasonable argument could be made that it limited the Confrontation Clause to those extrajudicial statements which are both testimonial and formalized. The Melendez-Diaz Decision was decided 5-4. Justice Thomas, who was the deciding vote, wrote separately to ensure that the Melendez-Diaz decision was not applied to statements which are not formal testimonial statements. He stated, The Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony or confessions. Id. at 2543 (Justice Thomas concurring.) Justice Thomas nonetheless concurred the majority because the certificates in Melendez-Diaz were quite plainly affidavits which fall within the core class of testimonial statements. Id. As explained in the proceeding section, the failure to call a phlebotomist does not violate the Confrontation Clause because the phlebotomist has not made a testimonial statement. Silence, or the failure to make a statement, is not a testimonial statement because it is not a solemn declaration or affirmation made for the purpose of establish or proving some fact. The failure to make a statement certainly cannot be construed as a formalized testimonial material as Justice Thomas would require. The fact that the analyst in Melendez-Diaz was subject to Cross examination does not imply that the Peoples phlebotomist must also be cross examined. Melendez-Diaz stands for the proposition that scientific reports are testimonial statements, not for the proposition that each and every analyst involved with a case are subject to cross examination. Thus, the analysts in Melendez Diaz, were only subject to the confrontation clause because their reports were

testimonial. Nothing in the Melendez-Diaz decision suggests that the analysts would have been subject to the confrontation clause if they never submitted a report.
C. There is no case law holding that a partys failure to testify may be considered a

testimonial statement. The People are not aware of any case law which specifically states that the Confrontation Clause does not apply to a phlebotomist who is unavailable for cross examination. Furthermore, in the rare cases where a court has had the opportunity to discuss the issue, the court has declined to do so. For instance, in People v. Hall, the Court considered whether blood work could be admitted when the phlebotomist who drew that blood was unavailable to testify. People v. Hall, 187 Cal.App.4th 282. While the Court spent considerable time discussing the chain of custody issue, the Court never mentioned the Confrontation Clause. It is reasonable to assume that had there been a Crawford issue the court would have addressed it. The fact that the Court declined to discuss the Crawford issue strongly implies that the Court felt that the phlebotomists silence could not be considered a testimonial statement. Not only does People v. Hall fail to state that silence is a testimonial statement, but the People are unaware of any case which does. To the best of the Peoples knowledge, every time a Court has addressed a Crawford issue, the party whom the defense has sought to cross examine has made at least some sort of statement. Accordingly, this court should hold that the Phlebotomist has not made any testimonial statement and therefore is not subject to the Confrontation Clause.