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Univ. of South Carolina School of Law

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Sunday, November 14, 2010

Electric Sheep: Court Of Appeals Of Indiana Notes That Statements Automatically Generated By Computers Can't Be Hearsay

Like its federal counterpart, Indiana Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

And, like its federal counterpart, Indiana Rule of Evidence 801(b) defines a declarant as "a person who makes a statement." And, as this definition and the recent opinion of the Court of Appeals of Indiana in Cranston v. State, 2010 WL 4410153 (Ind.App. 2010), make clear, because a declarant must be a person, a statement automatically generated by a computer cannot be hearsay.

In Cranston, Timothy Cranston

was pulled over on suspicion of drunk driving. Arresting Officer Lawrence Bendzen performed a battery of field sobriety tests. Cranston failed them all. Officer Bendzen transported Cranston to the county jail to conduct a certified chemical breath test.

Officer Bendzen administered the chemical breath test using a B.A.C. Datamaster with keyboard. Officer Bendzen first made sure that no foreign substances were inside Cranston's mouth. He then waited twenty minutes before proceeding. Officer Bendzen next entered a password on the Datamaster, inserted an evidence ticket into the machine, and typed in Cranston's biographical information. The machine displayed the instruction, "Please blow." Officer Bendzen placed a new mouthpiece onto the Datamaster's breath tube, and Cranston blew into the instrument. The Datamaster printed a ticket indicating that Cranston had provided an invalid breath sample. Officer Bendzen waited another twenty minutes and replaced the mouthpiece. Cranston delivered a second breath sample. This time the Datamaster printed a ticket reading in pertinent part:

--- BREATH ANALYSIS ---

BLANK TEST
.00
00:47
INTERNAL STANDARD
VERIFIED
00:47
SUBJECT SAMPLE
.15
00:51
BLANK TEST
.00
00:52
ALCOHOL READINGS ARE EXPRESSED AS GRAMS OF ALCOHOL PER 210 LITERS OF BREATH
The State thereafter charged Cranston with misdemeanor operating while intoxicated endangering a person and misdemeanor operating a vehicle while intoxicated with an alcohol concentration equivalent to .15 or greater.  At trial,
The State introduced at trial the evidence ticket printed from the Datamaster machine. Officer Bendzen authenticated the ticket, testified to his own certification in performing chemical breath tests, and explained the steps he followed in administering Cranston's test. The State also introduced an official certificate of compliance verifying routine inspection of the Datamaster.

After he was convicted, Cranston appealed, claiming

that the admission of the Datamaster evidence ticket violated his Sixth Amendment right to confrontation because he was afforded no opportunity to cross-examine "the forensic scientist who selected and prepared the breath test machine" or "any witness with knowledge of the scientific principles relied on by the BAC Datamaster, about the bases of that machine[']s conclusions regarding the type and quantity of alcohol present, or about the reliability or acceptance of those principles and conclusions."

In rejecting this argument, the Court of Appeals of Indiana noted that the admission of the evidence ticket could not have violated Cranston's rights under the Confrontation Clause because it was not hearsay. According to the court,

It is well-settled that "[b]ecause a declarant must be a 'person,' a statement automatically generated by a computer cannot be hearsay."...So-called "'[m]echanical hearsay' is not 'hearsay' because the problem is one of relevance-was the machine operating properly when it spoke, not a problem of perception, recollection, narration, or sincerity on the part of the machine.'"...Mechanically-generated or computerized information may constitute hearsay when incorporating a certain degree of human input and/or interpretation....But the B.A.C. Datamaster, for example, while requiring administrative input from the test operator and a breath sample from the test subject, calculates and prints a subject's blood alcohol concentration through a mechanical process involving no material human intervention....

As mechanically-generated data are not hearsay statements in the first instance, the prevailing view is that they cannot constitute testimonial hearsay for purposes of Crawford and the Confrontation Clause.

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/11/machine-hearsay-cranston-v-state-ne2d-2010-wl-4410153indapp2010.html

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