Should Houston Juries Know Margins of Error in Breath Testing?
A hearing was held to determine what evidence is required to be presented regarding breath tests in DWI cases in Washington. At issue, whether the State should be required to produce for the DWI defense team and jurors the margin of error in breath testing procedures. In other words, should the jurors in a DWI case with a breath test be given information about the breath test and the inherent errors in the breath testing machine?
Ted Vosk, the attorney for the DWI suspect, merely says, "All we’re asking is that this information be given to defendants and to the jury.” Vosk is not arguing that the test should be thrown out all together. However, he is arguing that the jurors should be given all information regarding the test.
He goes on to say, "If prosecutors are going to use these tests as evidence, they should be required to show the jury the full picture."
To most of us citizens, this sounds pretty reasonable. If the government is trying to convict a citizen of DWI (or any other crime for that matter), don't you think it makes sense that they have to provide everything to the defense? I don't think that many would want their government to hide evidence in DWI cases - maybe I'm wrong.
So what did the government say? Prosecutors argue that the law doesn’t require them to provide an uncertainty calculation for each test. State legislators already have established the hurdles that must be cleared for prosecutors to introduce test results as evidence — a move to clarify drunken-driving law. The margin of error is not among the criteria, Snohomish County deputy prosecutor Elise Deschenes said. Jurors should be allowed to hear the results even if the margin of error isn’t calculated. It is up to the defense attorneys to attack the results, she said.
“It’s just one more way that the defense attorneys are trying to keep out the breath tests,” Deschenes said.
It seems like the prosecutors in this case don't really care about the fairness of the process or the potential for convicting an innocent person. How about some independent thought from the prosecutor? How hard would it be to tell the Court, "Judge, we have so much confidence in this breath test machine that we are happy to turn over the margins of error - we can win even with this evidence being presented?" I would have gained a great deal of respect for the prosecutor if he had done just that. But instead, the prosecutor tries to avoid being forced to turn it over.
I would hope the prosecutors here in Houston would have the guts to take a different stand on this issue than the prosecutors in this case. Do you think Houston juries should have all the evidence about the breath test? Share your thoughts.
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was, the amount of the substance and the quality of the substance. The lab analyst was not called as a live witness and the affidavit was used to convict the defendant. The Supreme Court overturned the conviction stating, the Defendant was entitled to "be confronted with" the persons giving this testimony at trial.