After a jury
convicted her of “criminal vehicular operation and
reckless driving” in violation of Minnesota law, Brittny Nicole Ziegler
appealed. State v. Ziegler, 855 N.W.2d 551 (Minnesota Court of Appeals 2014).
The trial judge put her on probation. State v. Ziegler, supra. More precisely,
she argued, on appeal, that “the admission of data collected from a sensing and
diagnostic module in her vehicle violated her right to confrontation under the
6th Amendment of the United States Constitution.” State v. Ziegler, supra.
The Court of Appeals begins its
analysis of her argument by explaining how the prosecution arose:
Ziegler was driving
eastbound on Highway 14, a two-lane road in Olmsted County. A Ford Focus passed
Ziegler's vehicle and then passed another vehicle in front of her. Ziegler
believed that the Ford nearly hit an oncoming vehicle and became upset with its
driver. Ziegler decided to teach the Ford's driver `a little bit of a lesson.’
Ziegler
accelerated, tailgated the Ford, and then pulled into the westbound lane to
pass it. As she passed the Ford, Ziegler `flicked [the driver] off.’ In
response, the driver of the Ford sped up to prevent Ziegler from passing and
then slowed down when Ziegler slowed down, preventing Ziegler from reentering
the eastbound lane. Ziegler finally accelerated enough to pull in front of the
Ford. But when she returned to the eastbound lane the cars collided and rolled
into the ditch. Both of the vehicles' occupants were injured. . . . [The] State
of Minnesota charged Ziegler with three counts of criminal vehicular operation
and one count of reckless driving.
State v. Ziegler, supra.
At Ziegler’s trial, the prosecution
called
several witnesses, including
Sergeant Mark Inglett, a crash reconstructionist with the Minnesota State
Patrol. Sergeant Inglett testified that he reconstructed the accident in this
case relying, in part, on data collected from a sensing and diagnostic module
(SDM) in Ziegler's vehicle. Sergeant Inglett testified that an SDM is a type of
`event data recorder’ that collects and records information such as vehicle
speed, engine speed, and brake-switch activation. Sergeant Inglett explained
that the SDM is idle until it senses a change in velocity or an impact, at
which point it records data from other devices in the vehicle.
Sergeant Inglett testified that
another trooper, Sergeant Langford, plugged a device that runs
crash-data-retrieval software into Ziegler's vehicle to copy or `image’ the SDM
data. The software generated a report that contained data regarding Ziegler's
vehicle speed and brake-switch activation, at one-second
intervals. Sergeant Inglett testified that the software generated the
report containing the SDM data without input from Sergeant Langford and that
Sergeant Langford had no way to manipulate the report. Sergeant Langford
provided the report to Sergeant Inglett in a portable document format.
State v. Ziegler, supra.
The court goes on to explain that
Sergeant Langford did not
testify at trial.
Sergeant Inglett testified that he was not present when Sergeant Langford
downloaded the data and that he did not know if Sergeant Langford followed the
standard protocol when downloading the data. Sergeant Inglett also testified
that he was not present when the software generated the report and that he
could not independently verify whether the SDM was working properly on the day
of the accident.
Ziegler objected to
Sergeant Inglett's testimony regarding the vehicle-speed and brake-switch-activation
data on the grounds of `authenticity, foundation, reliability and hearsay.’
Ziegler also argued that Sergeant Inglett's testimony regarding the SDM data
violated her right to confrontation under Crawford v. Washington, 541 U.S. 36 (2004). The district court overruled Ziegler's
objection and allowed Sergeant Inglett to testify `about the data that he
relied on in reaching his conclusions.’
State v. Ziegler, supra.
The Court of
Appeals then explains that
[b]ased
on the data he received from the SDM, Sergeant Inglett testified that Ziegler's
car was traveling at 71 miles per hour five seconds before the crash. Sergeant
Inglett further testified that Ziegler's car was traveling at 47 miles per hour
four seconds before the crash, six miles per hour three seconds before the
crash, three miles per hour two seconds before the crash, and nine miles per
hour one second before the crash.
Sergeant
Inglett also testified that Ziegler's brake switch was activated eight seconds
before the crash, seven seconds before the crash, six seconds before the crash,
four seconds before the crash, three seconds before the crash, and two seconds
before the crash. But the brake switch was deactivated five seconds before the
crash and one second before the crash.
Sergeant
Inglett concluded that `when [Ziegler] completed her pass [of the Ford], she
also applied the brakes and then that reduced speed,’ leaving the driver of the
Ford `no choice but to go out onto the shoulder or rear-end [Ziegler's]
vehicle.’ Sergeant Inglett testified that the driver of the Ford drove onto the
shoulder and then overcorrected, which led to the collision.
State v. Ziegler, supra.
It then took up Ziegler’s 6th
Amendment Confrontation Clause argument, explaining that the issue before it
was “[a]re machine-generated data that do not contain the statements of human
witnesses testimonial statements that implicate a defendant's right to
confrontation under the 6th Amendment?” State
v. Ziegler, supra. The court It
began by noting that the 6th Amendment to the U.S. Constitution
guarantees a
criminal defendant the right `to be confronted with the witnesses against
him.’ U.S. Const. amend. VI. The Confrontation Clause bars `admission
of testimonial statements of a witness who did not appear at trial unless [the
witness] was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.’ Crawford
v. Washington, supra.
State v. Ziegler, supra.
Ziegler argued, on
appeal, that “the SDM data are testimonial statements” and therefore subject to
the Confrontation Clause. State v. Ziegler, supra. The Court of Appeals noted that its analysis of the argument
“begins with Crawford.” State v. Ziegler, supra. It noted that in Crawford
v. Washington, the U.S. Supreme Court stated that the text of
`the Confrontation
Clause. . . . applies to “witnesses” against the accused—in other words, those
who bear testimony.’ Crawford v.
Washington, supra. `Thus, the history and purpose of the Confrontation
Clause show that it provides a right to confront human beings who can be
brought into court and subjected to the `crucible of cross-examination.’ Crawford v. Washington, supra.
State v. Ziegler, supra.
The court explained that in Crawford v. Washington, supra, the
Supreme Court
describe[d] the
class of testimonial statements that are subject to the Confrontation Clause as
follows:
`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.’
State v. Ziegler, supra (quoting Crawford v. Washington, supra).
The Court of Appeals went on to
explain that the U.S. Supreme Court has applied
Crawford in cases in which evidence regarding the results of
forensic testing or analysis was introduced at trial without testimony from the
person who performed the testing or analysis. For example, in Melendez–Diaz v. Massachusetts, the Supreme Court concluded that `three “certificates
of analysis” showing the results of forensic analysis performed on seized
substances’ were testimonial statements and that the analysts who tested the
substances were `witnesses’ for 6th Amendment purposes. 557 U.S. 305
(2009). And in Bullcoming v. New Mexico, the Supreme Court
concluded that a forensic laboratory report certifying the defendant's
blood-alcohol concentration was testimonial and that when the state elected to
introduce the report, the analyst who performed the testing `became a
witness [the defendant] had the right to confront.’ 131 S.Ct. 2705 (2011).
State v. Ziegler, supra.
It went on to explain that neither Melendez-Diaz, Bullcoming or two similar
decisions by the Minnesota Supreme Court determined “the issue presented in
this case because in those cases, the objectionable evidence was not limited to
machine-generated data; it included out-of-court statements made by people
regarding the data.” State v.
Ziegler, supra. In Bullcoming v. New Mexico, for example,
the
[analyst's]
certification . . . reported more than a machine-generated
number. [He] certified that he received [the defendant's] blood sample intact
with the seal unbroken, that he checked to make sure that the forensic report
number and the sample number corresponded, and that he performed on [the]
sample a particular test, adhering to a precise protocol. . . .These
representations, relating to past events and human actions not revealed in raw,
machine-produced data, are meet [sic] for cross-examination.
State v. Ziegler, supra (quoting Bullcoming v. New
Mexico, supra).
The court
then explained that while the U.S. Supreme Court has not addressed
whether
machine-generated data are testimonial statements, several federal circuit
courts have addressed the issue and concluded that such data are not
testimonial statements within the meaning of the Confrontation Clause. The most
factually similar case to this case is U.S. v. Lamons, which
involved `raw billing data’ that had been `recorded onto [a telephone company's]
data reels’ and transferred to a compact disc by means of a fully automated
process. 532 F.3d 1251 (U.S. Court of Appeals for the 11th Circuit 2008).
A person used software to decrypt the data and print it in spreadsheet form.
U.S. v. Lamons, supra. At trial, both the compact disc and
spreadsheet were received as evidence. U.S. v. Lamons, supra. On
appeal, the defendant argued that the compact disc and spreadsheet `amounted to
testimonial hearsay not properly admissible under Crawford.’ U.S.
v. Lamons, supra.
State v. Ziegler, supra
The Eleventh Circuit considered
whether the evidence qualified as `the kind of statements that fall within the
scope of the Confrontation Clause.’ State
v. Ziegler, supra (quoting U.S.
v. Lamons, supra). It reasoned that `[i]n light of the constitutional text
and the historical focus of the Confrontation Clause, we are persuaded that the
witnesses with whom the Confrontation Clause is concerned are human witnesses,
and that the evidence challenged in this appeal does not contain the statements
of human witnesses.” State v.
Ziegler, supra (quoting U.S.
v. Lamons, supra) (emphasis in the original).
The circuit court also reasoned that under the definition of
`statement’ in the federal hearsay rule, “the statements in question are the
statements of machines, not statements of persons.’ State v. Ziegler, supra (quoting
U.S. v. Lamons, supra). The circuit court concluded that
`machine-generated statements’ are exempt `from the purview of the
Confrontation Clause.’ State v. Ziegler,
supra (quoting U.S. v. Lamons,
supra) (emphasis in the original).
It also noted that two other U.S.
Circuit Courts of Appeals had reached similar conclusions. State v. Ziegler, supra. The 7th Circuit Court of Appeals
held that “the Confrontation Clause does not forbid the use of raw data
produced by scientific instruments”. State v. Ziegler, supra (quoting U.S. v. Moon,
512 F.3d 359 (2008)). And the Court of Appeals for the 4th Circuit held that “`printed data’ generated from chromatograph machines
operated by lab technicians were not `statements of the lab technicians who
operated the machines’ and thus “not out-of-court statements made by declarants
that are subject to the Confrontation Clause.’” State v. Ziegler, supra (quoting
U.S. v. Washington, 498 F.3d 225
(2007)) (emphasis in the original).
The Court of Appeals also found it
significant that, as the trial judge explained, an
`SDM module records
event data which can be downloaded with a cable and the correct software. The
data cannot be manipulated while it is being gathered and cannot be overwritten
once it is recorded. Unlike[ ] the results of blood alcohol testing, DNA tests
or tests of alleged controlled substances, the SDM data is not drawn out of
some other piece of evidence by the application of certain tools and procedures
by a scientist or technician with certain qualifications. It is simply read
from the device by downloading it to a computer. The data is then passed on to
someone else who reads and interprets it. In this case that person was Sgt.
Inglett who was in court and subject to cross examination.’
State v. Ziegler, supra (quoting the trial judge).
The court found that this case was
similar to U.S. v Lamons in that
no human intervened
during the collection and recording of the SDM data. And, although a person
used software and a device to extract and print the data from the SDM, that
person did not and could not alter or manipulate the data.
State v. Ziegler, supra.
It also pointed out, however, that
Ziegler
attempts to portray
the SDM data as the statements of human witnesses. Specifically, she asserts
that the SDM data are testimonial statements of the people who wrote the
computer program that operates the SDM. We disagree. On this point, the
reasoning of the Eleventh Circuit is persuasive: `To be sure, there can be no
statements which are wholly machine-generated in the strictest sense; all
machines were designed and built by humans. But certain statements involve so
little intervention by humans in their generation as to leave no doubt that
they are wholly machine-generated for all practical purposes.’ U.S. v. Lamons, supra. . . .
Like the circuit
court in Lamons, we recognize that the evidence in this case
occupies `the far end of the spectrum.’ . . . Lamons notes that an
example of evidence at the other end of the spectrum is a judicial opinion,
because it is a `wholly human-generated statement, despite the fact that a
machine -- a word processor on a computer -- aided its production.’
The Lamons court
also noted, and we agree, that `[t]he characterization of statements toward the
middle of the spectrum, which includes a statement that may have been generated
through the contemporaneous lens of human interpretation and analysis, poses a
more difficult problem.’ U.S. v. Lamons, supra. But we easily
conclude that the SDM data in this case occupy the wholly machine-generated end
of the spectrum. The machine-generated SDM data in this case do not contain the
statements of human witnesses.
State v. Ziegler, supra.
So it held that the “admission of [the SDM] data
through a witness's trial testimony did not violate Ziegler's right to
confrontation under the 6th Amendment” and affirmed her convictions. State v. Ziegler, supra.
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