Bullcoming and Substitute Analysts

On June 23^rd, the U.S. Supreme Court decided Bullcoming v. New Mexico. As anticipated, the case turned out to be a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (forensic laboratory reports are testimonial; absent a stipulation, the prosecution may not introduce such a report without a live witness to testify to the truth of its contents), with the Court holding that substitute analyst testimony in an impaired driving case violated Crawford. Bullcoming involved an extreme example of substitute analyst testimony: the testifying expert had no independent opinion as to the matter in question (blood-alcohol level) and he neither participated in nor observed the test being done; as a result, he served as a mouthpiece for the non-testifying expert (something N.C. courts already have held is impermissible). For those dealing with more subtle substitute analyst cases (e.g., the testifying pathologist who did not perform the autopsy but has an independent opinion as to cause of death based on autopsy photographs, tests, and other documentation, all introduced as basis of the opinion), Bullcoming doesn’t advance the ball. It does, however, highlight a deep divide in the Court, with at least four Justices seeking to limit Crawford.

In Bullcoming, the defendant was involved in a car accident. Because the defendant’s eyes were bloodshot and he smelled of alcohol, the police were called. After leaving the scene, being apprehended and failing field sobriety tests, the defendant was arrested for impaired driving. When he refused to take a breath test, police obtained a warrant for a blood sample, which was drawn at a local hospital and sent to the N.M. Department of Health, Scientific Laboratory Division (SLD) for a determination as to blood-alcohol level (BAC). Curtis Caylor, a SLD forensic analyst, used a gas chromatograph machine to test the sample and certified his finding on an unsworn SLD form report. Specifically, Caylor recorded that the BAC in the sample was 0.21. The defendant was charged with aggravated impaired driving (requiring a BAC greater than 0.16).

At trial, the State announced that it would not call Caylor as a witness because he had recently been put on unpaid leave. When defense counsel objected, the State proposed to introduce Caylor’s finding as a “business record” during the testimony of Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor’s analysis. The trial court overruled defense counsel’s confrontation clause objection and admitted the report. The defendant was convicted and the case went to the N.M. Supreme Court, which held that the report was testimonial but that its admission did not violate the confrontation clause. First, it determined that Caylor “was a mere scrivener,” who simply “transcribed” results “generated by the . . . machine.” Second, it concluded, although Razatos did not participate in the testing, he was an expert regarding the gas chromatograph machine and “provided live, in-court testimony.”

The U.S. Supreme Court granted certiorari to decide this question: Does the Confrontation Clause 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? Writing for the Court, Justice Ginsburg answered that question in the negative, reversing the N.M. Supreme Court. Finding the report to be testimonial, the Court then explained:

 [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, [defense] 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 [the defendant’s] BAC. In this light, Caylor’s live testimony could hardly be typed “a hollow formality[.]”

 It concluded: “In short, when the State elected to introduce Caylor’s certification, Caylor became a witness [the defendant] had the right to confront. Our precedent cannot sensibly be read any other way.”

In a portion of the opinion that lacks the votes to make it the opinion of the Court, Ginsburg challenges the assertion that the ruling puts an “undue burden” on the prosecution. She notes that re-testing always is an option; she also rejects the State’s argument that the defendant can be required to initiate such re-testing, asserting that the prosecution bears the burden of proof. She also cites notice and demand statutes as a procedural mechanism to lessen the State’s burden.

As Justice Sotomayor points out in her concurring opinion, Bullcoming is “materially indistinguishable” from Melendez-Diaz. Why then did the Court grant certiorari? It only takes four Justices to do so. Perhaps the four Bullcoming dissenters (Kennedy, Roberts, Breyer and Alito), who characterize the Court’s prior confrontation rulings as “missteps,” hoped that the new Justices — Sotomayor and Kagan — would tip the balance against Crawford. But that didn’t happen and Bullcoming reaffirms that Crawford is the law of the land.

Unfortunately, Bullcoming doesn’t provide guidance on how other more complicated substitute analyst issues should be resolved. Concurring, Justice Sotomayor highlighted the opinion’s limited reach, specifically noting several issues that were not presented:

• when there is an alternate purpose or alternate primary purpose for the BAC report, such as medical treatment;
• when the person testifying is a supervisor, reviewer, etc. with a personal connection to the test;
• when the testifying expert has an independent opinion about underlying testimonial reports that are not themselves admitted into evidence; or
• when the State introduces only machine-generated results, such as a printout from a gas chromatograph machine.

If you are looking for cases addressing these issues, we have a number of post-Melendez N.C. cases on point; none appear to be disturbed by this ruling. The N.C. cases are summarized in my Criminal Case Compendium, posted here.