On September 29, 2010 in COMMONWEALTH vs. SEAN DYER 77 Mass. App. Ct. 850(2010) the Massachusetts Appellate court reinforced that Medical records are exempt from the Melendez Diaz ruling as they pertain to admissibility at trial.
The court in deciding stated “At the trial of an indictment charging felony motor vehicle homicide, G. L. c. 90, § 24G(a), the admission in evidence of hospital records containing the defendant’s blood alcohol level test results, without the testimony of the analyst responsible for processing the hospital blood sample, did not violate the defendant’s right of confrontation, where the test results, which were generated for evaluation and treatment purposes, were not testimonial and were properly admissible under G.L. c.233 § 79, the hospital records statute [853-856]; further, the judge properly admitted in evidence testimony by the supervising physician that the defendant’s blood alcohol level was consistent with her physical observations of the defendant, and that the blood draw and analysis performed at the hospital were neither improper nor wrong
Analysis. 1. Evidence of blood alcohol content. The defendant maintains that the admission of the hospital blood alcohol result violated his right of confrontation under the United States and Massachusetts Constitutions because the analyst responsible for processing the hospital blood sample was unavailable for cross-examination. However, because the blood alcohol content result was not testimonial, the defendant’s right of confrontation suffered no breach. He was not entitled to cross-examine the analyst responsible for it.
A defendant’s right to confront his accusers is guaranteed by the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. That right takes effect when a witness ” ‘bear[s] testimony’ ” against the defendant. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2531 (2009), quoting from Crawford v. Washington, 541 U.S. 36, 51 (2004). “A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination.” Melendez-Diaz, supra. The United States Supreme Court currently describes the necessary testimonial character of adverse information in the following terms:
“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”
Medical records generated for evaluation and treatment purposes do not constitute testimonial evidence triggering a constitutional right of confrontation. The Melendez-Diaz Court expressly excluded medical records from “this core class of testimonial statements.” Id. at 2531, 2533 n.2 (“medical reports created for treatment purposes . . . would not be testimonial under our decision today”). With particular regard to medical records of blood alcohol level test results, Massachusetts courtshave previously concluded that such information implicates no right of confrontation. See Commonwealth v. Lampron, 65 Mass. App. Ct. 340 , 344-346 (2005) (finding certain medical record drug screening notations not testimonial because created for patient evaluation and treatment). See also Commonwealth v. Riley, 22 Mass. App. Ct. 698 , 700-702 (1986) (no right to confrontation where doctor ordered blood alcohol level test for treatment purposes). Medical records do not have testimonial character because they are procured neither for litigation purposes nor through law enforcement interrogation, nor are they made in anticipation of use in the investigation or prosecution of a crime. See Lampron, supra at 345-346.”
The case reinforces that Medical records are Non testimonial and therefore not subject to the Melendez Diaz ruling as they relate to the admission of the records at trial.
Attorney Ronald A. Sellon