June 23, 2011

Supreme Court Decides Bullcoming v. New Mexico

On June 23, 2011, the Supreme Court decided Bullcoming v. New Mexico, No. 09-10876, holding that the Confrontation Clause does not allow a state to introduce a forensic lab report containing a testimonial certification through the testimony of an analyst who did not sign the document or personally observe the test.

Bullcoming was charged with driving while intoxicated (DWI). The principal evidence against him was a forensic lab report certifying that his blood-alcohol concentration was above the threshold for aggravated DWI. His blood sample was actually tested by a forensic analyst with the New Mexico Department of Health, and that analyst completed, signed, and certified the lab report. But the state did not call the analyst to testify at trial, and did not claim that he was unavailable for trial. Instead, the state called another analyst, who neither participated in nor observed the test on Bullcoming's blood sample, to validate the report.  His lawyer objected on the ground that introducing the lab report without the testimony of the analyst who wrote the report would violate the Confrontation Clause. The trial court overruled the objection and admitted the report as a business record. Bullcoming was convicted, and the Supreme Court of New Mexico upheld the conviction. The court recognized that Crawford v. Washington, 541 U.S. 36, 59 (2004), held that that the Confrontation Clause permits admission of testimonial statements of witnesses who do not testify at trial only when the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant, and that Melendez-Diaz v. Massachusetts, 557 U.S. ___, declined to create a "forensic evidence" exception to the Confrontation Clause and Crawford. But the court held that admission of the report did not violate the Confrontation Clause because the certifying analyst was simply a "scrivener" who transferred test results from a machine onto a report, and 2) the analyst who testified at trial was qualified as an expert with respect to the testing machine and the procedures for testing.

The Supreme Court reversed. The Court held that the Confrontation Clause does not allow the prosecution to introduce a forensic lab report containing a testimonial certification, made to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally conduct or observe the test at issue. The Court held that the defendant has the right to be confronted with the analyst who made the certification, unless the prosecution can show that the analyst is unavailable and the accused had an opportunity before trial to cross-examine the analyst who conducted the test. The Court held that the analyst's report was "testimonial" for Sixth Amendment purposes because it reported more than just machine-generated numbers, it related the testing method and other substantive information. The analyst who did testify was not an adequate substitute witness simply because he was familiar with the testing machine and the laboratory procedures. He could not convey what the testing analyst knew or observed about the events that he certified, nor expose any lapses or lies by the testing analyst.

Justice Ginsburg delivered the opinion of the Court, in which Justice Scalia joined in full, and in which Justices Thomas, Sotomayor, and Kagan joined for the most part. Justice Sotomayor filed an opinion concurring in part. Justice Kennedy filed a dissenting opinion in which Chief Justice Roberts and Justices Breyer and Alito joined. 

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