9.4Forensic Laboratory Reports
MCR 6.202 concerns forensic laboratory reports and certificates, and applies to criminal trials in district and circuit court. MCR 6.202(A).
“Upon receipt of a forensic laboratory report and certificate, if applicable, by the examining expert, the prosecutor shall serve a copy of the laboratory report and certificate on the opposing party’s attorney or party, if not represented by an attorney, within 14 days after receipt of the laboratory report and certificate.” MCR 6.202(B). Additionally, proof of service of the report and certificate (if applicable) on the opposing party’s attorney (or party, if not represented by an attorney), must be filed with the court. MCR 6.202(B).
If a party intends to offer a forensic laboratory report as evidence at trial, the party’s attorney (or party, if not represented by an attorney), must provide the opposing party’s attorney (or party, if not represented by an attorney), with written notice of that fact. MCR 6.202(C)(1). If the prosecuting attorney intends to offer a forensic laboratory report as evidence at trial, notice to defense counsel (or the defendant, if not represented by counsel), must be included with the report. MCR 6.202(C)(1). If a defendant intends to offer a forensic laboratory report as evidence at trial, notice to the prosecuting attorney must be provided within 14 days after receiving the report. MCR 6.202(C)(1). “Except as provided in [MCR 6.202(C)(2)], a forensic laboratory report and certification (if applicable) is admissible in evidence to the same effect as if the person who performed the analysis or examination had personally testified.” MCR 6.202(C)(1).
After receipt of a copy of the forensic laboratory report and certificate (if applicable), the opposing party’s attorney (or party, if not represented by an attorney), may file a written objection to the use of the forensic laboratory report and certificate. MCR 6.202(C)(2). The written objection must be filed with the court where the matter is pending, and must be served on the opposing party’s attorney (or party, if not represented by an attorney), within 14 days of receiving the notice. MCR 6.202(C)(2). If a written objection is filed, the forensic laboratory report and certificate are inadmissible under MCR 6.202(C)(1). If no objection is made to the use of the forensic laboratory report and certificate within 14 days of receipt of the notice, the forensic laboratory report and certificate are admissible in evidence as set out in MCR 6.202(C)(1). MCR 6.202(C)(2). The court must extend the time period of filing a written objection for good cause. MCR 6.202(C)(3). Compliance with MCR 6.202 constitutes good cause for adjourning trial. MCR 6.202(C)(4).
The analyst who conducted the analysis on the forensic sample and signed the report must complete a certificate on which he or she must state (1) that he or she is qualified by education, training, and experience to perform the analysis; (2) the name and location of the laboratory where the analysis was performed; (3) that performing the analysis is part of his or her regular duties; and (4) that the tests were performed under industry-approved procedures or standards and the report accurately reflects the analyst’s findings and opinions regarding the results of those tests or analysis. MCR 6.202(D). Alternatively, a report submitted by an analyst employed by a laboratory that is accredited by a national or international accreditation entity that substantially meets the certification requirements set out in the court rule may provide proof of the laboratory’s accreditation certificate in lieu of a separate certificate. MCR 6.202(D).
“The Confrontation Clause of the Sixth Amendment bars the admission of testimonial hearsay unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination.” People v Payne, 285 Mich App 181, 197 (2009), citing Crawford v Washington, 541 US 36, 68 (2004) and People v Walker, 273 Mich App 56, 60-61 (2006).
Admitting a laboratory report without having an analyst available for cross examination violates the defendant’s right to confrontation when the nontestifying analyst knew that the purpose of the report was for use in criminal proceedings. Payne, 285 Mich App at 198-199. See also Melendez-Diaz v Massachusetts, 557 US 305, 310-311, 320, 329 (2009) (holding that police “certificates” are affidavits that constitute testimonial statements and admission of the certificate stating that the substance was found to contain cocaine without testimony from the analyst who performed the testing on the substance violated the defendant’s right to confrontation). Thus, there is no “‘forensic evidence’ exception” to a defendant’s right to confrontation, and “a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding” is “testimonial[.]” Bullcoming v New Mexico, 564 US 647, 658-659 (2011), citing Melendez-Diaz, 557 US at 320-321. However, admission of test results that are “self-explanatory data produced entirely by a machine and not the out-of-court statements of a witness” is not restricted by the Confrontation Clause. People v Dinardo, 290 Mich App 280, 291 (2010) (holding that the admissibility of DataMaster test results was not restricted by the Confrontation Clause).
Further, testimony from a witness with basic knowledge concerning testing and the methods used to prepare reports in general is insufficient to satisfy the defendant’s right to confrontation where the witness did not personally conduct the testing, did not personally examine the evidence collected, and did not personally reach any of the scientific conclusions contained in the reports. Payne, 285 Mich App at 198. See also Bullcoming, 564 US at 651-652 (holding that the defendant’s right to confrontation was violated where a forensic laboratory report certifying that the defendant’s blood-alcohol concentration was above the legal limit was admitted through testimony from an analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on the defendant’s blood sample). In Bullcoming, the Court noted that the forensic laboratory report contained a testimonial certification made for the purpose of proving a particular fact, and concluded that the testimony from a scientist who did not sign the certification or perform or observe the test reported in the certification did not satisfy the defendant’s constitutional right to confrontation. Id.
In Williams v Illinois, 567 US 50, 57-58 (2012) (plurality opinion), a forensic specialist’s testimony that a DNA profile produced by an outside laboratory matched the profile produced by the state police laboratory did not violate the Confrontation Clause because “[o]ut-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” The plurality further noted that the report was not admitted into evidence, the expert did not testify to the truth of the outside laboratory’s tests or about anything done at the outside laboratory, did not vouch for the quality of the laboratory’s work, and made no other reference to the laboratory’s report. Id. at 70-71. Finally, the plurality noted that “even if the report produced by [the outside laboratory] had been admitted into evidence, there would have been no Confrontation Clause violation[,]” because the report “was produced before any suspect was identified[ and] . . . was sought not for the purpose of obtaining evidence to be used against petitioner[.]” Id. at 58.
Admitting DataMaster logs reflecting that a particular DataMaster machine was tested by an operator who verified its accuracy and certified that it was in proper working order without calling the operator to testify about his tests would not violate a defendant’s right to confrontation because the DataMaster logs are nontestimonial. People v Fontenot, 333 Mich App 528, 535-536 (2020), vacated in part on other grounds 509 Mich 1073 (2022).1 Specifically, the logs “were created before defendant’s breath test to prove the accuracy of the DataMaster machine; they were not created for the purpose of prosecuting defendant[.]” Id. at 535. “Furthermore, the DataMaster logs were created as part of the Michigan State Police’s normal administrative function of assuring that the DataMaster machine produces accurate results,” and the machine “would have been checked for proper functioning even if defendant had not been tested with it.” Id. at 535-536. Accordingly, the logs reflecting the test results were nontestimonial where the primary purpose of the test “was to comply with administrative regulations and to ensure [the machine’s] reliability for future [breath] tests—not to prosecute defendant specifically.” Id. at 536 (citation omitted).
In Fontenot, the Michigan Supreme Court vacated Part II(C) of the Court of Appeals opinion, which addressed the business records hearsay exception under MRE 803(6).2 Fontenot, 509 Mich at 1073. For a detailed discussion of the hearsay rule and its exceptions, see the Michigan Judicial Institute’s Evidence Benchbook, Chapter 5.
C.Admission of Reports at Preliminary Examination
At a preliminary examination the rule against hearsay will not exclude “a report of the results of properly performed drug analysis field testing to establish that the substance tested is a controlled substance.” MCL 766.11b(1)(a). Moreover, such a report is admissible at the preliminary examination “without requiring the testimony of the author of the report, keeper of the records, or any additional foundation or authentication[.]” Id.
MCL 766.11b irreconcilably conflicts with MCR 6.110(C) (providing that the Michigan Rules of Evidence apply at preliminary examinations) because it permits the admission of evidence that would be excluded under the Michigan Rules of Evidence. People v Parker, 319 Mich App 664, 667 (2017). “MCL 766.11b is an enactment of a substantive rule of evidence, not a procedural one[; a]ccordingly, the specific hearsay exception in MCL 766.11b takes precedence over the general incorporation of the Michigan Rules of Evidence found in MCR 6.110(C).” Parker, 319 Mich App at 674 (holding that “[t]he district court properly admitted the laboratory report [of the defendant’s blood draw at his preliminary examination on a charge of operating while intoxicated] pursuant to the statutory hearsay exception in MCL 766.11b,” and “[t]he circuit court abused its discretion by remanding defendant’s case to the district court for continuation of the preliminary examination”).
1 For more information on the precedential value of an opinion with negative subsequent history, see our note. See also People v Fontenot, 509 Mich 1073, ___ (2022) (McCormack, C.J., concurring) (noting that by denying leave on the “question of whether a technician’s inspection logs of a DataMaster breath-testing machine are testimonial statements that trigger constitutional protections under the Confrontation Clauses, . . . the published Court of Appeals opinion holding that such administrative logs are nontestimonial remains binding on lower courts,” but writing “to express some reservations about the consensus that has seemingly emerged that these statements are nontestimonial”).
2 Effective January 1, 2024, ADM File No. 2021-10 amended the Michigan Rules of Evidence; the business records exception to hearsay is now found in MRE 803(6)(B).