≡ Menu

Confrontation – Lab Report Certification

Donald Bullcoming v. New Mexico, USSC No. 09-10876, 6/23/11

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 the certification. 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, tocross-examine that particular scientist.

The latest development in the Confrontation Clause Revolution wrought by Crawford, this time an elaboration on Melendez-Diaz v. Mass., 557 U.S. _ (2009) (lab report identifying nature of illegal substance violated confrontation; live witness required to testify to truth of that matter). Bullcoming was charged with driving under the influence, and his blood draw came back 0.21 (a high enough reading to support “aggravated” drunk driving). At trial, New Mexico didn’t present the analyst who’d performed the blood test, but instead simply admitted the report of the test, accompanied by the analyst’s signed certificate that the report was correct, etc. The report also included a “certificate of reviewer,” certifying that the analyst was qualified and had followed established procedure. Why wasn’t the analyst produced at trial? He’d been “put on unpaid leave,” for unrevealed reasons. His report was admitted into evidence as a “business record,” through the testimony of a co-worker who hadn’t himself observed or reviewed the analysis. On appeal, the New Mexico supreme court agreed the report was testimonial, but held that Bullcoming wasn’t denied confrontation because the non-testifying analyst was a “mere scrivener,” who did no more than transcribe the test result; and, the testifying co-worker was an expert with respect to the testing mechanism, so for purposes of cross-examination served as a surrogate for the analyst.

The analyst was more than a mere scrivener, the Court now holds: he certified to certain facts, such as that he’d received the sample intact with an unbroken seal, that nothing affected the validity of the analysis, etc. “These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination.” But in the final analysis, reliability doesn’t matter, the Court’s observations worth quoting in full:

The New Mexico Supreme Court stated that the number registered by the gas chromatograph machine called for no interpretation or exercise of independent judgment on Caylor’s part. 226 P. 3d, at 8–9. We have already explained that Caylor certified to more than a machine-generated number. See supra , at 3–4. In any event, the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar. This Court settled in Crawford that the “obviou[s] reliab[ility]” of a testimonial statement does not dispense with the Confrontation Clause. 541 U. S., at 62; see id. , at 61 (Clause “commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing [the evidence] in the crucible of cross-examination”). Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.” Melendez-Diaz , 557 U. S., at ___, n. 6 (slip op., at 14, n. 6).

Nor does New Mexico’s “surrogate witness” argument carry any, let alone sufficient, weight: “the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”

What are the implications? Note in the first instance the qualifier, the testifying witness “had neither participated in nor observed the test on Bullcoming’s blood sample.” Justice Sotomayer, whose concurrence supplies the decisive 5th vote, stresses: “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. … 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.” It is possible albeit far from certain, then, that holdings such as State v. (Luther) Williams, 2002 WI 58 will survive (testimony by crime lab “unit leader” and “highly qualified” expert, whose “close connection with the testing” included performing “the peer review on the tests the analyst conducted,” didn’t violate confrontation; caveat: the testifying expert must not “act as a mere conduit for the opinion of another”). But where a Williams-type factual wrinkle is absent, then Bullcoming will require the analyst’s production at trial (assuming no prior opportunity for cross-examination and no showing of unavailability). Take a look, too, at State v. David Barton, 2006 WI App 18 (unit leader presented own individual, expert opinion: he not only examined results of tests, but also performed peer review of them; thus, his opinion was based on his own expertise and analysis). Prior post: here.

What about certified medical records, e.g., State v. Ellington, 2005 WI App 243? Here, too, the Sotomayer concurrence suggests limited impact, observing that “the State has not claimed that the report was necessary to provide Bullcoming with medical treatment,” while noting that medical reports created for treatment purposes aren’t considered testimonial. Certified bank (business) records, e.g., State v. Doss, 2008 WI 93? There, the court held that business records, including the bank records at issue, aren’t testimonial, therefore don’t implicate confrontation rights. More to the present point, the court further held “that affidavits verifying nontestimonial bank records in compliance with Wis. Stat. § 891.24 are also nontestimonial.” There are reasons to doubt that view, going back to Melendez-Diaz, but the point is that Doss isn’t necessarily the final word – unless no one undertakes a challenge to it.

UPDATE: Certificates of authentication for foreign public and business records by means of affidavit held non-testimonial, U.S. v. Anekwu, 9th Cir No. 10-50338, 9/20/12 (“This information does not interpret what the records contain or certify their substance or effect. The certificates do not ‘create a record for the sole purpose of providing evidence against a defendant.’ Melendez-Diaz, 557 U.S. at 323.”). AccordUnited States v. Yeley-Davis, 632 F.3d 673, 680 (10th Cir. 2011) (certificates of authentication of cell phone records admitted under FRE 902(11) not testimonial, citing United States v. Ellis, 460 F.3d 920, 927 (7th Cir. 2006)).

{ 0 comments… add one }

Leave a Comment