Reckless Driving, the Event Data Recorder and the Confrontation Clause

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 6^th 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 6^th 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 7^th 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.