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Colorado Law Section § 16-3-309(5), C.R.S.2004, allows laboratory reports to be received into evidence without live testimony from the laboratory technician.
This flies in the face of the right of an accused to confront the witnesses against him which is considered a fundamental constitutional right included in both the United States and Colorado Constitutions. U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; Crawford v. Washington,
Under the Carwford case as it interprets the Confrontation Clause, if an out-of-court statement made by a non- testifying witness is testimonial, it may be admitted for truth in a criminal trial only if the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness.
Section 16-3-309(5) allows courts to admit any report or finding of a criminalistics laboratory “with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person.”
However, the law permits a defendant to demand that the technician testify in person “by notifying the witness and other party at least ten days before ” the trial. Under this statute, if the defendant does not give pretrial notice, the People may prove an element of the charge using a laboratory report either “by subpoenaing the [technician] and presenting her at trial, or by simply introducing the lab report.”
The better practice for a criminal defense lawyer is to object to the admission of forensic laboratory in criminal proceedings without establishing the proper foundation – this means the defense lawyer should request that the technician be made available at trial.
In one recent case the People sought to introduce a laboratory report as to a “tan tape wrapped block containing 1004.5 grams of compress white powder … [which when tested] disclosed the presence of cocaine, schedule II.”
The Defendant objected that the report was “a hearsay document.” The court asked defense counsel whether he had requested the laboratory technician to testify. Counsel responded that he had not because he was unaware of the notice requirement under § 16-3-309(5). The People did not dispute this assertion. The court then overruled defendant’s objection and admitted the report.
Under Crawford v. Washington the laboratory report in this case is considered “non-testimonial”, and therefore Crawford does not require its exclusion.
Although the Crawford case declined to “spell out a comprehensive definition of ‘testimonial,” ‘ it quoted Webster’s An American Dictionary of the English Language (1828) definition of “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.”
The majority held that, at a minimum, “testimonial” applies to statements made at preliminary hearings, before grand juries, at a former trial, and during police interrogations.
A majority of jurisdictions across the county hold that laboratory reports and similar documents are non-testimonial business or public records.
In this case the defendant urged the Court to follow a minority of cases that treat as testimonial under Crawford various documents prepared at the behest of law enforcement. Our Colorado Court ruled that the report does not raise the evils at which the Confrontation Clause was directed.
At trial, in this case, the defendant conceded that the material seized from his truck was cocaine. He disputed only the amount seized. The Court held that weighing incoming material to be tested is a routine laboratory procedure. “Thus, a technician who prepared such a report would “merely have authenticated the document.”
The Court held that the lab report in question was not an affidavit. “Nor (did) it resemble the other types of statements identified by the Crawford majority as testimonial, such as “prior testimony at a preliminary hearing, Before a grand jury, or at a former trial.” It is not a statement obtained from a witness during a “police interrogation.”
The Court held that the report did not include detailed descriptive information that would typically be presented through narrative testimony. Thus the Colorado Court followed the majority of Courts around the county and concluded that the lab report was not testimonial, and Crawford v. Washington, supra, does not require its exclusion.