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June 23, 2011

Defendant wins in Bullcoming, the latest (greatest?) SCOTUS Confrontation Clause case

In part because the Confrontation Clause has been deemed inapplicable at sentencing, I have not followed too closely the post-Crawford line of decisions on this facet of the Sixth Amendment.  Nevertheless, the line-up of Justices as well as the pro-criminal-defendant SCOTUS ruling today in Bullcoming v. New Mexico should interest anyone who follows closely modern criminal procedure issues.  First, here is the line up in the 5-4 ruling for the defendant:

GINSBURG, J., delivered the opinion of the Court, except as to Part IV and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all but Part IV and footnote 6.  SOTOMAYOR, J., filed an opinion concurring in part.  KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.

Now here is how Justice Ginsburg's opinion for the Court gets started:

In Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009), this Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause.  The report had been created specifically to serve as evidence in a criminal proceeding.  Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.

In the case before us, petitioner Donald Bullcoming was arrested on charges of driving while intoxicated (DWI).  Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI.  At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample.  The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony.  Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements.

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in thecertification.  We hold that surrogate testimony of that order does not meet the constitutional requirement.  The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

I will be especially grateful for any and all comments explaining whether and how this ruling could possibly have some sentencing bite.

June 23, 2011 at 10:18 AM | Permalink

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Comments

How the hell are we supposed to object using this case and not start giggling?

Posted by: Scott | Jun 23, 2011 12:58:47 PM

i'm with you scott. Just how many times are DA's and judges supposed to be told that The person who did the test and WROTE THE REPORT is the one who has to take the damn stand!

maybe if the appeals section started TOSSING every case where it didnt' happen AUTOMATICALY it might finally sink in!

Posted by: rodsmith | Jun 23, 2011 1:27:13 PM

Rod, I think you missed Scott's point. Chill and read his comment again. And I agree with Scott. I will make sure to tell the Court reporter his name is one word whenever I mention this case, along with generous gifts to the reporter and the transcriptionist so I don't look bad in the transcript.

Posted by: Paul | Jun 23, 2011 5:05:55 PM

This is not the only Supreme Court precedent that requires caution. In the parole due process area we have Dumschat, which sounds like the past tense of a word I always thought was a noun.

Posted by: Kent Scheidegger | Jun 23, 2011 5:49:37 PM

This decision is correct. As an innocent defendant, I would demand a full Daubert hearing on every aspect of the use of the chemical analyzer, from manufacture, to tuning, to the actual results. Do temperature and humidity affect it? Do foods and medication affect the results, does mouthwash?Whatever uncertainty is picked can be used in rebutting the prosecution.

Posted by: Supremacy Claus | Jun 23, 2011 5:51:01 PM

the name is only a problem if you're immature and have your mind in the gutter :P

Posted by: virginia | Jun 23, 2011 6:21:18 PM

Would the 6th apply to challenges of inaccurate criminal history records? What about records of conviction where the state destroyed the court records and only has a hearsay disposition document?

Posted by: Anon | Jun 23, 2011 6:41:02 PM

I am immature and my mind is in the gutter. Thanks for asking. You should lighten up. The name is funny.

Posted by: Scott | Jun 23, 2011 8:05:30 PM

well paul i dont' need to real it again or chill out! the whole thing boils down to this!

"The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in thecertification. We hold that surrogate testimony of that order does not meet the constitutional requirement."

It's pretty simple. whoever does the TEST and WRITES the report must be the one ON THE STAND to back up and explain the report!

doesn't take a rocket scientist or politician or even a lawyer or JUDGE to figure that out!

like i said if the courts started TOSSING every conviction with prejeduce in each case with this problem IT MIGHT SINK IN!

Posted by: rodsmith | Jun 24, 2011 12:21:56 AM

Anon,

The courts would probably claim those are business records, in that the trial transcripts and whatever other records are made are not created for the sole purpose of proving a fact at a later trial. They are created for the efficient running of the courts or some such rather than proof of any particular matter. This differs from a lab analyst's report which is created specifically for the purpose of proving something at a possible trial.

What I think would be an interesting question along these lines, would this rationale allow the introduction of tests that were done for some other reason? Say quality control, or a private DNA test that was undertaken for whatever reason so long as it was intended for some use other than trial? Such scenarios are way easier to envision in the civil rather than criminal context but I'm sure there's some way to make such a pattern reality.

Posted by: Soronel Haetir | Jun 24, 2011 8:36:39 AM

Soronel Haetir - "The courts would probably claim those are business records, in that the trial transcripts and whatever other records are made are not created for the sole purpose of proving a fact at a later trial."

What about if retained or used to prove a prior or enhance a sentence? Isn't that the primary reason for retaining criminal records?

Posted by: Anan | Jun 24, 2011 12:29:25 PM

Alan,

Except the fact of a prior conviction need not be proven to a jury.

And I think the courts would say they retain such records for things like instructing prison officials how long they can or must hold onto someone, or for conducting appeals, or so that the public can inspect the workings of the courts. Most any rationale will do so long as it's not that they are maintained for later proof to a jury.

Posted by: Soronel Haetir | Jun 24, 2011 1:15:29 PM

Soronel Haetir - you appear to refer to the record of conviction. Those are court documents. But what if the only document left is a hearsay disposition that was so incomplete the DOJ had to search its database to match it up to an individual?

Posted by: Anon | Jun 24, 2011 6:59:57 PM

Justice Sotomayor's separate opinion appears to narrow things slightly; that may be the only result from her replacing Justice Souter.

The connecting to sentencing law is that this is the same basic 5 member formalist/legalist majority that has been the bulwark for Blakely, Apprendi, etc., as against the same 4 pragmatists among the dissenters. Views on the Confrontation Clause are related to views on the Sixth Amendment.

Posted by: John Thacker | Jun 25, 2011 11:53:18 AM

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