The United States Supreme Court decided a big Confrontation Clause case yesterday. I hope that Jessie Smith will do a full recap and analysis of it, but the central holding of Bullcoming v. New Mexico, from the Court’s syllabus, is that “[t]he Confrontation Clause . . . 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.” In other words, no substitute analysts. Our appellate courts were headed in this general direction anyhow, but not completely consistently. In other news:
1. A number of criminal law bills have either been signed by the Governor or allowed to become law without her signature. Jamie Markham is planning a post about H 642, the Justice Reinvestment Act, and I hope that John Rubin will write about H 650, the Castle Doctrine, but both make significant changes and are worth a look.
2. The News and Observer has this article about a Gaston County man who more-or-less attempted to rob a bank of $1. (The story states that he “went inside and handed the teller a note demanding $1. Then he told the teller he would just sit down and wait for police to arrive.”) Apparently, his intention was to get arrested so that he would have access to health care in jail. His bond has been set at $2000, but of course, he has no intention of posting it.
3. MSNBC recently ran an article about young lawyers establishing solo practices, a phenomenon that has picked up as the legal hiring market has dried up. The story features tech-savvy Raleigh criminal lawyer Damon Chetson, who says he’s making more money than his classmates at large law firms. His story may give hope to some aspiring lawyers who would otherwise be discouraged by this law school bubble infographic.
4. Speaking of lawyers and technology, cutting-edge crooks can pay $5 per month to get the Lawyerup app on their Android smartphones. As Gizmodo explains, the service “puts you in touch with a pre-screened, bar-approved advocate within 15 minutes,” 24 hours a day.
5. Finally, a story from California that just boggles the mind. The job application form for the California Highway Patrol apparently asks applicants about recent criminal activity, and one applicant acknowledged recently having viewed child pornography on his computer. This led police to search his home, where they found pictures of the would-be trooper molesting a young girl. The Los Angeles Times reports on the case, including the 30-year sentence that ensued.
I believe it is too simple to say “no substitute analysts” is the bottom line in Bullcoming. Justice Sotomayor, who provided the decisive fifth vote to reverse, leaves open the possibility of a substitute expert giving an expert opinion based on testimonial reports of a non-testifying expert. As she notes, that issue was not presented in this case (indeed, this case really is a lot like the Locklear case already decided by our Supreme Court). Although the four-justice plurality says a lot that would seem to make the use of substitutes impossible, Justice Sotomayor has now staked herself out as the possible swing vote on future Confrontation Clause cases.