This morning the United States Supreme Court released a decision that levels the playing field for defendant's being prosecuted with lab evidence. The case, Bullcoming v. New Mexico, was issued June 23, 2011 and is an important case for the DUI and drug criminal lawyer. Justice Ginsberg delivered the Opinion for The Court.
Bullcoming held that the Sixth Amendment's Confrontation Clause gives the accused "[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him." In
Crawford v.
Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of "[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Later, in
Melendez-Diaz v.
Massachusetts, 557 U. S. ___, the Court declined to create a "forensic evidence" exception to
Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as "testimonial" for Confrontation Clause purposes. 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 report's statements.
.Bullcoming's jury trial on charges of driving while intoxicated (DWI) occurred after Crawford, but before
Melendez-Diaz. Principal evidence against him was a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming's blood sample had been tested at the New Mexico Department of Health, Scientific Laboratory Division (SLD), by a forensic analyst named Caylor, who completed, signed, and certified the report. However, the prosecution neither called Caylor to testify nor asserted he was unavailable; the record showed only that Caylor was placed on unpaid leave for an undisclosed reason. In lieu of Caylor, the State called another analyst, Razatos, to validate the report. Razatos was familiar with the testing device used to analyze Bullcoming's blood and with the laboratory's testing procedures, but had neither participated in nor observed the test on Bullcoming's blood sample. Bullcoming's counsel objected asserting
that introduction of Caylor's report without his testimony would violate the Confrontation Clause, but the trial court overruled the objection, admitted the SLD report as a business record, and permitted Razatos to testify.
Bullcoming was convicted, and, while his appeal was pending before the New Mexico Supreme Court, the Court decided Melendez-Diaz. The state high court acknowledged that the SLD report qualified as testimonial evidence under
Melendez-Diaz, but held that the report's admission did not violate the Confrontation Clause because: (1) certifying analyst Caylor was a mere scrivener who simply transcribed machine-generated test results, and (2) SLD analyst Razatos, although he did not participate intesting Bullcoming's blood, qualified as an expert witness with respect to the testing machine and SLD procedures.
The Confrontation Clause, the opinion concludes, does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. 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..