The United States Constitution,6th Amendment to the Bill of Rights states:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”

The Georgia Constitution provides in Article1, Section1, paragraph XIV, titled, “Benefit of counsel; accusation; list of witnesses; compulsory process” as follows:

”Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded; shall have compulsory process to obtain the testimony of that person’s own witnesses; and shall be confronted with the witnesses testifying against such person.”

The Georgia Constitution often provides more rights than our federal constitution and should never be overlooked.
In the news recently has been the issue of the right to confront witnesses.  In the summer of 2009, in Melendez-Diaz v. Massachusetts, 557 U.S. _____ , 129 S.Ct. 2527 (2009),the United States Supreme Court struck down a Massachusetts statute which allowed a crime lab analysts report identifying a drug to be admitted without person who rendered the analsys showing up for court. The court reversed, on confrontation clause grounds, a Massachusetts Supreme Court decision which had affirmed a cocaine conviction based on the tendering of the report of the crime lab analyst on the basis of particularized guarantees of trustworthiness.  The Supreme Court in an opinion by Justice Anthony Scalia based his decision upon a plain reading of the 6th Amendment’s confrontation clause. 

The Melendez-Diaz  decision reaffirmed the rule it had announced in Crawford v. Washington, 541 U.S. 36 (2004), that a witness’s testimony against a defendant is inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination when the witnesses testimony is testimonial in nature. In Crawford, playing a tape-recorded 911 call of a non-testifying witness was held to violate the Sixth Amendment’s confrontation clause.

Georgia practitioners are encouraged to object to both hearsay nature of such reports and the violation of rights guaranteed by the 6th Amendment. As Justice Scalia pointed out in Melendez-Diaz, a government entity whose sole purpose is to gather records at trial is incapacable of availing itself of a business records exception to the hearsay rule. In Walton v. State, 278 Ga. 432 (2004), the Georgia Supreme Court required express a confrontation clause objection to preserve issue for appeal.  “In Georgia, ‘hearsay testimony is not only inadmissible but wholly without  probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.'” Day v. State, 235 Ga.App. 771 (1998).

Georgia has its own “notice and demand” statute for crime lab reports wherein the prosecutor has the right to notice use of a crime lab affidavit at trial as opposed to a live witness and the defense attorney must file a demand for live witness testimony. See, OCGA 35-3-154.1.  This was in response to Miller v. State, 266 Ga. 850 (1996) where the Georgia Supreme Court made it clear that where lab analysis is needed to prove a crime, a written report is insufficient. To prove the crime, the analyst must testify. In Miller, the Georgia Supreme Court invalidated a newly minted Georgia statute which allowed the state, under certain conditions, to admit an analyst’s certificate identifying a drug wthout producing the analyst.

In Carolina .v State, A09A2053, decided January 13, 2010, the Georgia Court of Appeals decided the question of whether a crime lab scientist who actually runs the test must appear in court or only the scientist who interprets the results.  The Court of Appeals ruled that under Georgia case precedent and Melendez-Diaz, ____U.S.___; 129 S.Ct. 2527; 174 LE2d 314(2009), that the defense does not have the constitutional right to cross-examine the lab technician who may have actually performed the tests but just the scientist who interpreted the results. Citing, Dunn v. State, 292 Ga. App. 667 (665 SE2d 377) (2008), ( cited as a “thoughtful and well reasoned opinion of the majority,” id. at 673 (Phipps, J., concurring fully and specially); Reddick v. State, 298 Ga. App. 155, 157-158 (2) (679 SE2d 380) (2009); Carter v. State, 297 Ga. App. 608, 610-611 (2) (677 SE2d 792) (2009); see also Rector v. State 285 Ga. 714, 715 (4) (681 SE2d 157) (2009) (trial court did not err by allowing the State’s toxicologist to testify about a toxicology report prepared by another doctor where toxicologist reviewed the report and reached the same conclusion as the doctor who prepared the report).

On January 25, 2010, in Briscoe v. Virginia, 559 U.S. ______, 2010 U.S. Lexis 767, in a one-sentence per curiam opinion, the United States Supreme Court vacated a Virginia Supreme Court opinion, Briscoe v. State, 275 Va. 283 (2008), which had affirmed a cocaine conviction using a similar certificate under a similar state law presenting the question of whether the right to confrontation would be satisfied by providing that the accused has a right to call the crime lab analyst who prepared the crime lab report as his own witness. The U.S. Supreme Court remanded the case “for further proceedings not inconsistent with Melendez-Diaz” answering the question with a resounding “No.”  Thus, averting a age were criminal defendants could be tried on affidavits and have the onus bringing states witnesses to court to prove their innocence.

The real question becomes where does DUI breath testing fit in in this brave new world of plain reading of constitutional rights?  The secret source code is still out there so only time will tell.