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SUPREME COURT OF THE UNITED STATES
BULLCOMING v. NEW MEXICO
CERTIORARI TO THE SUPREME COURT OF NEW MEXICO
No. 09–10876. Argued March 2, 2011—Decided June 23, 2011

Petitioner 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.

Held: The judgment is reversed, and the case is remanded

The comparative reliability of an analyst’s testimonial report does not dispense with the Clause. Crawford, 541 U. S., at 62. The analysts
who write reports introduced as evidence must be made available for confrontation even if they have “the scientific acumen of Mme. Curie
and the veracity of Mother Teresa.” Melendez-Diaz, 557 U. S., at ___, n. 6. Pp. 10–11.

http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

Not insane. I've learned that whenever I think a SCOTUS opinion nonsensical, it means I don't understand the theory. Doesn't mean that understanding the theory means I'll agree, but it's important to understand the rational, because some of us will one day do something that might make new law, and you make better decisions when you have some idea how the court's thinking is evolving.

BUT, this opinion does leave a lot of uncertainty behind. On one hand, it could be viewed as a plain endorsement of the confrontation clause. In that light, it's logical, no matter how uncomfortable the consequences. The obvious consequence, in this instance, is the implication that, unless the original analyst is available to testify, cases that depend mainly on evidence that can no longer be analyzed cannot be prosecuted. I don't think that's quite what this one means.

For one thing, this was a particularly troublesome situation. The analyst who testified wasn't the supervisor and had absolutely no direct knowledge of anything but the general operation of the analysis and the stated protocols. What we do not know is how the opinion might have been different with a different scenario. My feeling is that the court found this to be unwarranted overreaching on the part of the government, using a witness with so little contact with the case. I think they decided a line had to be drawn. Justice Kennedy, who wrote for the dissenting justices, makes all the obvious observations of the difficulties created by the opinion. He points out the serious difficulty the opinion presents for judges deciding admissibility issues.

All of us who have been thinking about this one wonder about the effect on cases in which many years have passed and in which the analyst is dead and the sample consumed. Some things will not be terribly problematic, assuming good documentation is done. For instance, an pathologist routinely dictates a running account of observations, and photographs are made, during an autopsy. While a dead pathologists documented conclusions might not be admitted because he cannot testify, another expert could work from the factual account and make independent conclusions. One of the principles considered in opinions about confrontation is the principle that the state cannot be allowed to conduct in private things that should be done in court. That means that a conclusion cannot be presented as fact when the concluding expert cannot be examined, because the decision properly reserved for the jury was made in private by the state in its acceptance of the conclusions. The recorded observations of a living testifying pathologist are not really challenged during his testimony. The observations of the now dead pathologist are similarly not subject to challenge. Conclusions, though, are challengable. The pathologist must be available for them to be explored.

This is also not about chain of custody. The court has long held that it is not necessary that every single person in the chain be available. But in the case of lab analysis, there is a real possibility of contamination or mishandling or mislabeling. The problem with this opinion is that it doesn't speak sufficiently on how to distinguish between things that must be allowed to be explored at trial and those that do not. If it had, we would have a much better idea how to apply it. But, clearly, the opinion set up the potential for some analysis to be inadmissible when someone with some particular kind of knowledge cannot be available. We have talked about this a great deal and have not come to any confident conclusion. I suspect this means that we will see another case with more typical facts. If the various federal circuits have as much difficulty deciding how to apply Bullcoming, there will be conflicts among the circuits, and that's when the SCOTUS has to act.

I should note, too, that some states have some kind of demand statute. The Texas statute applies to drug analysis and makes the certified report admissible unless the defense objects. They often do not, because a piece of paper is less impressive than a live chemist, and you're unlikely to do any damage to the reliability in either case. Bullcoming doesn't change this, because the defense has the ability to demand the analyst appear. But we should also remember that Justice Ginsberg's opinion for the majority very early states, "(a) If an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness." That's a very plain statement, and the majority might mean exactly what they say and that it's regrettable but Constitutionally necessary that some cases will be lost without the analyst to testify.