Does anyone know of a case that would allow us to use a lab report in a MTR to prove a violation (cocaine use) without having the chemist testify? Thank you in advance.

Should start here: Melendez-Diaz. Then Shepardize for Texas.

Are you thinking that 6th Amendment's Confrontation/Cross-Examination Clause does not apply to a revocation hearing?

For MTRs, our probation officers attempt to get an admission b/c our chemist is out of state. There does not seem to be a good way to go forward on an mtr without our chemist. (ie, no good way to simply rely on the lab result/UA result by only having the probation officer testify as the person who gave watched the UA and then did the test, explain procedures, etc. - - with no chemist to explain result). Any ideas on going forward everyone BUT the chemist? Thanks.

See articles 38.35 and 38.41, Code of Criminal Procedure.

There are cases from both state and federal courts holding that a revocation hearing is not subject to Crawford and the confrontation clause. Look at Diaz v State, 172 S.W.3d 668 (Tex.App.--San Antonio, 2005) and Smart v. State, 153 S.W.3d 118 (Tex.App.--Beaumont, 2004). Based on those cases, you should be able to get around that issue. You might also look at McKenzie v. State, 2005 TEX.APP.LEXIS 7528 (Tex.App.--Amarillo, 2005) for a case specifically concerning out of state lab reports in a revocation hearing.

Thank you both! I will look at everything you've alterted me to. Do you guys always have your chemist at the mtr if there is no admission? Thanks.

How about the lab report being "hearsay within hearsay?" Thanks again. I really appreciate ya'lls help.

...and regarding "hearsay within hearsay," is the business records exception really enough?..... Thanks again.

...oops. Just saw all the errors I made above. That is what comes from not proofing and typing in a rush. : ) Thank you all again.

I agree with Sammy: both state and federal cases hold that the Confrontation Clause does not apply to a probation revocation. Mauro v. State, 235 S.W.3d 374, 375-76 (Tex.App. -- Eastland 2007, pet. ref'd); U.S. v. Washington, Slip Copy, 2009 WL 1919508 (4th Cir. July 2, 2009) ("Crawford does not apply to supervised release revocation proceedings because they are not 'criminal prosecutions' under the Sixth Amendment."); Peters v. State, 984 So.2d 1227 (Fla. 2008) (admission of drug lab report in probation revocation did not implicate Confrontation Clause as revocation hearing was not a criminal prosecution), cert. denied, 129 S.Ct. 917 (2009); see also U.S. v. Jackson, 2009 WL 3160945 (2d. Cir. October 2, 2009) ("Neither the Confrontation Clause nor the Rules of Evidence proscribe hearsay evidence at revocation hearings.").

There is a due process right to confrontation, but it doesn't require the State to drag in a tech who likely wouldn't remember anything anyway: "the de minimis value of testimony from the proposed technician-witnesses did not outweigh the government's inconvenience and expense in making those witnesses available." U.S. v. Redd, 318 F.3d 778, 784 (8th Cir. 2003).

At least one Texas court, in an appeal from a revocation, has allowed notations of positive test results in a probation file as a business record. Canseco v. State, 199 S.W.3d 437, 439 (Tex.App. -- Houston [1st Dist.] 2006, no pet.); see People v. Castro, 2003 WL 356871 (Cal. Ct. App. February 19, 2003) (probation properly revoked based on positive test result from outside lab contained in drug treatment center's file); see also Greer v. State, 999 S.W.2d 484 (Tex.App. -- Houston [14th Dist.] 1999, pet. ref'd) (admission of probation file not prohibited by Rule 803(8)).

One case that is against you is Philpot v. State, 897 S.W.2d 848 (Tex.App. -- Dallas 1995, pet' ref'd), but I think that case confused (1) confrontation clause issues -- State must show reliability -- with (2) Rule 803(6) -- document admissible unless there is an indication of a lack of trustworthiness.

Another consideration is Hernandez v. State, 116 S.W.3d 26, 31-32 (Tex. Crim. App. 2003), though that is a Rule 702 case. Aumand v. Dartmouth Hitchcock Medical Center, 611 F.Supp.2d 78, 85-86 (D.N.H. 2009) (Rule 702 does not apply to business records)

This issue is also percolating in the parental termination context. In re A.T., 2006 WL 563565 at *4 (Tex.App. -- Fort Worth, March 9, 2006); In re K.C.P., 142 S.W.3d 574, 580 (Tex.App. -- Texarkana 2004, no pet.); see also In re S.D.J., 665 S.E.2d 818, 822 (N.C. Ct. App. 2008).

As for the hearsay-within-hearsay issue: the printout from a scientific apparatus is not hearsay. Miller v. State, 208 S.W.3d 554, 563 (Tex.App. -- Austin 2006, pet. ref'd) ("This Court and other Texas courts of appeals have recognized that computer self-generated data is not hearsay because there is no human declarant."). Miller, however, requires the proponent to prove that the printout is "self generated."

A declaration from someone outside the entity which tenders the business record will normally need to pass a separate hearsay exception. See 2A Texas Practice sec. 803(6) ("If a business record incorporates a statement by a person who is not part of the regular organized activity and who thus has no 'business duty' to make the report';an 'outsider' to the organized activity';and the record is offered to prove the truth of the incorporated statement, the record will be treated as 'double hearsay.'").

However, outside declarations can become business records of the receiving entity:

In some circumstances an incorporated document may qualify as the record of the adopting company. Bell v. State, 176 S.W.3d 90, 92–94 (Tex.App. -- Houston [1st Dist.] 2004, pet. ref'd) ("Business records used in one business, created by a third party at their behest, may be admissible under Rule 803(6) of the Texas Rules of Evidence if (1) the incorporating business relies upon the information transmitted in the records in the normal course of its business, and (2) the circumstances otherwise indicate the trustworthiness of the document. HeavyQuip incorporated the two letters that St. Paul created into its business records and relied upon them. Moreover, the circumstances indicate their trustworthiness.").

2A Texas Practice sec. 803(6).

Also, the lab report would not be hearsay if offered as a business record of the lab that generated the report.

Finally, although I couldn't find any Texas cases which directly address the issue, the structure of Rule 803(6) creates a presumption of trustworthiness. http://www.law.cornell.edu/rules/fre/ACRule803.htm (Comments to Federal Rule of Evidence 803(6): "the rule proceeds from the base that records made in the course of a regularly conducted activity will be taken as admissible but subject to authority to exclude if "the sources of information or other circumstances indicate lack of trustworthiness."). A showing of a LACK OF TRUSTWORTHINESS"; is required to defeat this presumption. Aumand, 611 F.Supp.2d 78, at 86 (opposing party has burden to show a lack of trustworthiness).

If you want to send someone to prison after a contested hearing, you should be willing to bring in a chemist to testify as to the reliability of a drug test. Why is that so much to ask? We don't have to do it all that frequently. Most of the time, defendants plead guilty or accept a revocation.

[This message was edited by JB on 10-27-09 at .]

I agree with John that if you don't want to risk getting reversed you shouldn't try to get a drug test result admitted as a business record. But see United States v. Baker, 855 F.2d 1353, 1359 (8th Cir.1988) ("When made on a routine basis, laboratory analyses of controlled substances are admissible as business records under Federal Rule of Evidence 803(6)."); Blackwell v. State, No. 03-03-00337-CR, 2005 WL 548245, at *3-4 (Tex.App. -- Austin March 10, 2005, no pet.) (drug test result in hospital records was properly admitted as a business record based upon affidavit and doctor’s testimony that doctors rely upon such tests in treating patients).

My interest in this topic is the use of drug tests in parental termination cases: A parent tests positive for drugs, but CPS is unwilling to pay for an expert to testify at trial.

It seems to me that since the Confrontation Clause is not an issue (in either parental terminations or probation revocations), the main consideration is whether the “lack of trustworthiness” issue can be dealt with.

We are attempting to address that issue by:

(1) having the court take judicial notice that the GC/ MS (hair strand) test is reliable, see In re S.E.W., 168 S.W.3d 875, 884 (Tex.App. -- Dallas 2005, no pet.); State v. Cathcart, 589 A.2d 193 (N.J. Super. Ct. 1991), and

(2) a litigation package (quality control tests, raw data, chain of custody, etc.) from the drug testing company.

When the Confrontation Clause is not applicable, why can’t the affidavit and the records dispel any issue of untrustworthiness?:

“Rule 803(6) permits the custodian or other qualified witness to verify business records according to the above criteria unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. Id.; In re K.C.P. & J.D.P., 142 S.W.3d 574, 578 (Tex.App. -- Texarkana 2004, no pet.). The custodian or other qualified witness may establish the necessary predicate through an affidavit that complies with Rule 902(10). TEX.R. EVID. 803(6), 902(10).”

In re A.T., No. 2-04-355-CV, 2006 WL 563565, at *3 (Tex.App. -- Fort Worth March 9, 2006, pet. denied).

This is done regularly in federal probation revocations. United States v. Redd, 318 F.3d 778, 784 (8th Cir. 2003); United States v. Pierre, 47 F.3d 241 (7th Cir. 1995) (Easterbrook, J.) (discussing (1) the many cases allowing revocation based upon written test reports, and (2) the futility of calling a technician who would not remember conducting the test); United States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986) (holding that it was not error to allow the government to introduce urinalysis laboratory results from a California laboratory through a probation officer who had not prepared the report and without live testimony from the laboratory technicians because the hearsay was reliable and the proposed testimony was of little value).

Admittedly, the Feds – like nearly every other American jurisdiction except Texas and Georgia – do not apply the rules of evidence to probation revocations hearing.

TEX. R. EVID. 101(d) ought to be fixed.

Thank you all. I did a lot of research and found pretty much the same.... I did it as a sort of research project. I agree that I would not want to risk getting the test in only as a business record though..... Our probation officers are good about getting admissions after a positive. Thank you all, and I have to admit although I generally knew the law before my research, after the research and talking with all of you, I learned a lot more!!! And know the basis for it also.