Government Use of a Substitute Expert Witness, or ‘Straw Man,’ to testify regarding scientific laboratory reports violates the United States and New Jersey Constitutions
In State v, Rehmann, the Appellate Division, or intermediate appellate court in New Jersey, analyzed the use by the State of a witness to testify concerning the Blood alcohol content of breath samples in a DWI case who did not analyze the breath samples himself. Simply, he only supervised the analysis and signed the laboratory certificate. Thus, the Court examined whether this process, using a ‘straw witness’ so to speak, violated the Confrontation Clause of the United States and New Jersey Constitutions. The Court found that the process did violate the law but that this particular witness, given his supervisory role and adoption of the lab report, could testify concerning the results at trial.
The facts, in Rehmann, are as follows. Immediately after a car accident, defendant was issued tickets, or summonses, for DWI, under the statute N.J.S.A. 39:4-50, as well as reckless driving, careless driving, N.J.S.A. 39:4-97, and failure to wear a seatbelt. During the trial in municipal court, the Prosecutor for the State of New Jersey called as a witness, forensic scientist Maxwell, to discuss the defendant’s blood alcohol content, or BAC. Maxwell stated that he did not actually perform the test but watched another scientist, Major Mitchell, test the blood sample. Maxwell signed the lab report and certified to the accuracy of the testing.
The Appellate Division had never considered this ‘substitute’ or surrogate-witness problem previously.
The municipal judge rejected Rehmann’s lawyer’s argument that the State’s failure to call Mitchell violated theConfrontation Clause of the State and federal Constitutions. Defendant was sentenced to a 6 month jail term with a ten year revocation of his driver’s license and registration, a $1006 fine, and other monetary fines and costs. The defendant appealed.
Previously, the Supreme Court of the United States clarified the confrontation clause in a case involving prosecution use of affidavits to establish that seized drugs, were in fact, illicit drugs, rather than calling the scientists who actually examined the alleged drugs personally.
The ‘Confrontation Clause’ contained in the Sixth Amendment, applies to the states via the Due Process Clause of the Fourteenth Amendment. The Confrontation Clause provides that in all criminal prosecutions, the accused will be able to confront the witnesses against him. The Supreme Court of the United States has held that the Confrontation Clause excludes the statements of witnesses at trial who are not present to testify themselves except where the declaring person is unavailable, and only where the defendant has had a prior opportunity to cross-examine that particular declaring (or stating) witness.
The Court, in Rehmann, found that it had no hesitation in agreeing that experts and their opinions are not fungible (interchangeable). They held that to hold otherwise would make a sham or mockery of the Confrontation Clause. Thus, the Court held that the rights of the defendant are not met by calling just anyone to the stand to testify about laboratory tests or other scientific results. The Court continued stating ‘…a straw man will not do. The State must provide a witness who has made an independent determination as to the results offered.’ As such, in drug cases, DWI cases, cases involving analysis of blood samples, fingerprints, forensic evidence, and the examination of experts, the right of cross-examination ‘must be meaningful.’ The State of New Jersey may not call a witness whose knowledge is based only upon reading the laboratory certification produced and executed by another scientist without violating the New Jersey and State Constitutions.