Sixth amendment








State v. Lui, No. 84045-8 (Jan. 2, 2014)

The Washington Supreme Court declared a new test today regarding the confrontation clause.  Confrontation clause analysis has been fragmented for many years and even the United States Supreme Court was divided on how to articulate the rule.  Well, here it is:

If the declarant makes a factual statement to the tribunal, then he or she is a witness. If the witness’s statements help to identify or inculpate the defendant, then the witness is a “witness against” the defendant and is subject to cross-examination.

What the test does NOT authorize:

Today’s opinion does not allow laboratory reports to be admitted into evidence and used against a defendant without effective cross-examination. Nor does it allow a laboratory supervisor to parrot the conclusions of his or her subordinates.

What the test DOES authorize:

The test allows expert witnesses to rely upon technical data prepared by others when reaching their own conclusions, without requiring each laboratory technician to take the witness stand. It does nothing more.

Our test requires cross-examination, but only cross-exanimation of the witness who gives meaning to raw data.  Not every laboratory analyst is required to testify.  See Williams v. Illinois, _ U.S. _, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) (plurality opinion).  If DNA evidence is used in trial, someone must be subject to cross-examination.  The “someone” required by the confrontation clause is the person who has made the final comparison that is used against the defendant.

It just so happens that the facts of this case provided the court with an opportunity to distinguish between someone who is a witness against the defendant and someone who is not.  The court held that the individual lab technicians who prepared the DNA reports were not witness, but the medical examiner who performed the autopsy and prepared the report was a witness.

Lui was charged with the murder of his fiancé Boussiacos.  Lui objected to the testimony of two trial witnesses in particular, the chief medical examiner Dr. Richard Harruff and DNA expert Gina Pineda.  They testified to the following:

Dr. Richard Harruff
Subject Autopsy
What he testified to
  • Cause of death was asphyxia by manual strangulation or strangulation with a ligature.
  • It takes roughly four minutes to die in this manner.
  •  The position of Boussiacos’s body
  • Approximate time of death was between the 2nd and 7th of February.
  • Victim was dressed in an odd manner
Basis of opinion
  • Primarily photographs
  • Several statements were taken from the autopsy report
  • Personal notes of the actual examiner that body’s temperature at the scene was measured at 38.4 degrees Fahrenheit, and that the ambient temperature was 30.5 degrees Fahrenheit.
Actual Examiner Dr. Kathy Raven (his subordinate)
Pass WA’s test? Statements from autopsy report fail, conclusion about time of death pass.
  • The statements from the autopsy report were for the purpose of identifying the manner of death and were used to prove that Boussiacos was dressed postmortem.
  • All of the statements were used by the prosecution to convict Lui.
  • Harruff did not bring his expertise to bear on the statements or add original analysis-he merely recited a conclusion prepared by non testifying experts.
Subject Toxicology
What he testified to Boussiacos had no drugs in her system at the time of death
Basis of opinion Toxicology report
Preparer of the report Martin Hughes of the Washington State Toxicology Laboratory
Pass WA’s test? No
  • Information taken from the toxicology report and autopsy report were statements of fact.
  • But, these statements had an inculpatory effect because
    • the toxicology report was prepared to identify the cause and manner of Boussiacos’s death and
    • it was relied upon at trial to rebut Lui’s testimony that Boussiacos might have been smoking prior to her death


Gina Pineda
Subject DNA
What she testified to
  • Based on the results of the DNA tests, she could not eliminate Lui or Lui’s son as a major donor of the male DNA found on the shoelaces.
  • Boussiacos’s ex-husband could not be eliminated as a donor.
  • The lab’s testing was unable to detect a male profile from the vaginal swab extract.
  • Lui or Lui’s son could not be eliminated as a donor of the DNA found in the vaginal wash.
Tester of the DNA Cellmark and Reliagene Technologies
Pass WA’s test? Yes
  • DNA testing process does not become inculpatory until the final step, where a human analyst must use his or her expertise to interpret the machine readings and create a profile.
  • Pineda used her expertise to create a factual profile that incriminated Lui, and therefore Pineda was the appropriate witness to introduce the DNA evidence.

In sum, the question is not whether an expert witness is exempt from cross-examination, but whether the state provided the correct witnesses.  The test helps answer this question.  First one must identify the real “witness against” the defendant.  An expert is a witness against the defendant if their statements help identify or inculpate the defendant.

In regards to Dr. Harruff’s testimony, his statements about the cause of death and the victim being dressed oddly tended to accuse Lui because it rebutted any theory that she dressed herself and died accidently.  But Dr. Harruff testified and was subject to cross-examination, so what is the problem?

The problem is that those accusations were not his.  This is the second step – subjecting the appropriate person to cross-examination. The actual statements came from the autopsy report prepared by Dr. Raven.  Therefore, she was the real witness that Lui had a constitutional right to confront.

In comparison, Ms. Peneda studied raw data and came to her own conclusion based on certain markers.  She was the actual accuser and therefore the appropriate person to confront.

Lastly, it is important to remember that this test only applies to expert witnesses.  For non expert witness the primary purpose test still controls.