[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Bullcoming v. New Mexico that the Confrontation Clause [Cornell LII backgrounders] does not allow laboratory reports containing testimonial certification to be entered into evidence against a defendant without the testimony of the analyst who personally observed the test and certified the report. Donald Bullcoming was arrested for Driving While Intoxicated (DWI). A forensic laboratory report of a machine-generated blood test showed his blood alcohol content (BAC) was above the legal limit. The court reversed the Supreme Court of New Mexico [official website] which allowed the laboratory report, despite holding that it was “testimonial,” because another analyst familiar with the testing device and procedures used, but had neither participated in nor observed the testing, was called to validate the report. The state never asserted that the analyst who conducted the tests was unavailable, but the record showed he was placed on unpaid leave for an undisclosed reason. The majority opinion by Justice Ruth Bader Ginsburg held that the laboratory report depended on live in-court testimony as to its veracity. The other analyst did not satisfy this requirement because he did not take part in the actual testing. The court also noted that this prevented the defense from cross-examining the testing analyst as to why he was placed on unpaid leave. The court also rejected the state’s argument that the laboratory report was not testimonial because it was was merely the results of a machine-generated test. Ginsburg’s opinion held the laboratory report was testimonial under the Court’s holding in Melendez-Diaz v. Massachusetts [JURIST report] because of the certification formalities attending the report. However, Justice Anthony Kennedy argued in the dissenting opinion that the majority makes the “misstep” of extending the holding from Melendez-Diaz, in which there was no one present to testify at trial, to this situation where “a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report.” He said:
The procedures followed here, but now invalidated by the Court, make live testimony rather than the solemnity of a document the primary reason to credit the laboratory’s scientific results. Unlike Melendez-Diaz, where the jury was asked to credit a laboratory’s findings based solely on documents that were quite plainly affidavits, here the signature, heading, or legend on the document were routine authentication elements for a report that would be assessed and explained by in-court testimony subject to full cross-examination. The only sworn statement at issue was that of the witness who was pre-sent and who testified.
Justice Sonia Sotomayor, with whom Justice Elena Kagan joined, filed a concurring opinion disagreeing with Ginsburg’s holding that lab report was testimonial because of its formalities and because applying the Confrontation Clause to forensic evidence is not an undue burden on the State. Sotomayor argued instead that laboratory reports are testimonial when in addition to formality, they are created with the purpose of use at trial against the defendant.
During oral arguments [transcript, PDF; JURIST report] last March, the justices repeatedly questioned counsel for New Mexico regarding their assertion that there is a difference between an affidavit offered by an analyst, as in Melendez-Diaz, and a purely machine-produced report. Justice Sonia Sotomayor, focusing on the certification of both documents, pressed counsel as to how they could be considered distinguishable, saying, “I’m sorry, could you tell me what that means? Why is it different than the affidavit? It’s certified, and my understanding of the dictionary meaning of certification is that that’s an attestation as to the truth of the statements contained therein. That’s the common definition.” Justice Antonin Scalia, focusing on the fact that the analyst had been placed on leave without pay during the trial, stated perhaps the most important reason why the defendant should have been permitted to cross examine the analyst, “Does the defense know why it was leave without pay? Could the defense have found out in cross-examination that the reason he was leave without pay because he was—had shown himself to be incompetent, and they were in the process of firing him? I don’t know whether that’s true, but wouldn’t that be important to the defense?”