In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...
In August 2005, Donald Bullcoming's car rear-ended a pick-up truck at an intersection in Farmington, New Mexico. The drivers got out of their cars to exchange insurance information, the other driver noticing that Bullcoming’s eyes were bloodshot and that his breath smelled of alcohol. The driver told his wife to call the police; Bullcoming left before the police arrived, but officers found him and performed field sobriety tests, arresting him for a DWI. Bullcoming refused a breathalyzer test, so the police obtained a warrant to draw his blood, which was sent to a state lab for blood-alcohol testing by staffer Curtis Caylor. That test revealed a BAC level sufficient to elevate the charge to aggravated DWI.
When it was time for Bullcoming's trial, the lab analyst who performed the test (Caylor) wasn't called as a witness, having “very recently [been] put on unpaid leave” for a reason not revealed. "A startled defense counsel objected," the Supreme Court's majority explained today, "The prosecution, she complained, had never disclosed, until trial commenced, that the witness 'out there … [was] not the analyst [of Bullcoming’s sample].'” The state proposed to introduce the test results as a “business record” during the testimony of Gerasimos Razatos, another scientist at the lab who had neither observed nor reviewed Caylor’s analysis. The defense objected. The judge overruled and allowed the testimony in; Bullcoming was convicted of aggravated DWI.
In a 5-4 decision today the Supreme Court held that this violated Bullcoming's rights under the Confrontation Clause, because "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."
You'll want to see the lineup before proceeding:
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.
No, that isn't the alignment you may have expected, I'm guessing.
Anyway, here's what Justice Ginsburg would want you to consider:
The New Mexico Supreme Court held surrogate testimony adequate to satisfy the Confrontation Clause in this case because analyst Caylor “simply transcribed the resul[t] generated by the gas chromatograph machine,” presenting no interpretation and exercising no independent judgment. Bullcoming’s “true ‘accuser,’ ” the court said, was the machine, while testing analyst Caylor’s role was that of “mere scrivener.”
...The potential ramifications of the New Mexico Supreme Court’s reasoning ... raise red flags. Most witnesses, after all, testify to their observations of factual conditions or events, e.g. , “the light was green,” “the hour was noon.” Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact—Bullcoming’s counsel posited the address above the front door of a house or the read-out of a radar gun. Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department’s standard operating procedures? As our precedent makes plain, the answer is emphatically “No.”
... [S]urrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, i.e. , the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. Significant here, Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station. Notable in this regard, the State never asserted that Caylor was “unavailable”; the prosecution conveyed only that Caylor was on uncompensated leave. Nor did the State assert that Razatos had any “independent opinion” concerning Bullcoming’s BAC. In this light, Caylor’s live testimony could hardly be typed “a hollow formality.”
Why does this matter? Isn't it just a simple reading of test results? No, the majority explains in a footnote:
Caylor’s testimony under oath would have enabled Bullcoming’s counsel to raise before a jury questions concerning Caylor’s proficiency, the care he took in performing his work, and his veracity. In particular, Bullcoming’s counsel likely would have inquired on cross-examination why Caylor had been placed on unpaid leave.
And as Justices Ginsburg and Scalia insist (this is the Part IV stuff with which no other Justices agreed), the Constitution isn't
that hard to comply with:
New Mexico law, it bears emphasis, requires the lab-oratory to preserve samples, which can be retested by other analysts, and neither party questions SLD’s compliance with that requirement. Retesting “is almost always an option … in [DWI] cases,” and the State had that option here: New Mexico could have avoided any Confrontation Clause problem by asking Razatos to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe....
Tellingly, in jurisdictions in which “it is the [acknowledged] job of … analysts to testify in court … about their test results,” the sky has not fallen. State and municipal laboratories “make operational and staffing decisions” to facilitate analysts’ appearance at trial. Ibid. Prosecutors schedule trial dates to accommodate analysts’ availability, and trial courts liberally grant continuances when unexpected conflicts arise. In rare cases in which the analyst is no longer employed by the laboratory at the time of trial, “the prosecution makes the effort to bring that analyst … to court.” And, as is the practice in New Mexico,laboratories ordinarily retain additional samples, enabling them to run tests again when necessary
Justice Sotomayor's concurrence emphasizes the limits of this decision:
This is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor’s conduct of the testing. The court below also recognized Razatos’ total lack of connection to the test at issue. It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.
The dissenting justices argue, essentially, "look: anyone at the lab can read the lab results for you."
In these circumstances, requiring the State to call the technician who filled out a form and recorded the results of a test is a hollow formality. The defense remains free to challenge any and all forensic evidence. It may call and examine the technician who performed a test. And it may call other expert witnesses to explain that tests are not always reliable or that the technician might have made a mistake. The jury can then decide whether to credit the test, as it did here. The States, furthermore, can assess the progress of scientific testing and enact or adopt statutes and rules to ensure that only reliable evidence is admitted. Rejecting these commonsense arguments and the concept that reliability is a legitimate concern, the Court today takes a different course. It once more assumes for itself a central role in mandating detailed evidentiary rules....
And, they argue, compliance with this new standard
is a problem:
Today’s opinion repeats an assertion from [two years ago] that its decision will not “impose an undue burden on the prosecution.”But evidence to the contrary already has begun to mount. See, e.g., Brief for State of California et al. as Amici Curiae 7 (explaining that the 10 toxicologists for the Los Angeles Police Department spent 782 hours at 261 court appearances during a 1-year period); Brief for National District Attorneys Assocation et al. as Amici Curiae 23 (observing that each blood-alcohol analyst in California processes 3,220 cases per year on average). New and more rigorous empirical studies further detailing the unfortunate effects of Melendez-Diaz are sure to be forthcoming.
In the meantime, New Mexico’s experience exemplifies the problems ahead. From 2008 to 2010, subpoenas requiring New Mexico analysts to testify in impaired-driving cases rose 71%, to 1,600—or 8 or 9 every workday. New Mexico Scientific Laboratory Brief 2. In a State that is the Nation’s fifth largest by area and that employs just 10 total analysts, each analyst in blood alcohol cases recently received 200 subpoenas per year. The analysts now must travel great distances on most working days. The result has been, in the laboratory’s words, “chaotic.” And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall. As a result, good defense attorneys will object in ever-greater numbers to a prosecution failure or inability to produce laboratory analysts at trial. The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations. Scarce state resources could be committed to other urgent needs in the criminal justice system.
Wait, you're thinking,
the criminal defendant won, and Justice Scalia was on his side of the case? (And Justice Thomas was on the right side too, but Breyer wasn't?) Yep. The traditional 5-4 splits one thinks of on the Court don't apply in the criminal defendant (and especially criminal sentencing) sphere, and this is just one more example.