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Confrontation and Lab Techs

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The U.S. Supreme Court has taken up the issue of lab techs and the Confrontation Clause again in Bullcoming v. New Mexico, No. 09-10876.  The opinion of the New Mexico Supreme Court begins:

Defendant, Donald Bullcoming, appeals his conviction of aggravated DWI, a fourth-degree felony, contrary to NMSA 1978, Section 66-8-102 (2005, prior to amendments through 2008). Of the three issues that Defendant raises, the main question presented in this appeal is whether a laboratory report of Defendant's blood draw results is testimonial evidence subject to the Confrontation Clause. We first addressed this issue in State v. Dedman, 2004-NMSC-037, ΒΆΒΆ 30, 45-46, 136 N.M. 561,102 P.3d 628, and followed the United States Supreme Court case in Crawford v. Washington, 541 U.S. 36 (2004), to hold that (1) blood alcohol reports are public records and (2) they are non-testimonial under Crawford because public records are not "investigative or prosecutorial" in nature. We reverse our holding in Dedman in light of the recent United States Supreme Court case of Melendez-Diaz v. Massachusetts, which held that the certificates reporting the results of forensic analysis were "quite plainly affidavits" and thus "there [was] little doubt that [they] fall within the 'core class of testimonial statements,'" governed by the Confrontation Clause. 557 U.S. ___, ___, 129 S. Ct. 2527, 2532 (2009) (5-4 decision) (quoting Crawford, 541 U.S. at 51). Although the blood alcohol report was testimonial, we conclude that its admission did not violate the  Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant's right to confrontation.

Should the analyst be relieved he doesn't have to go testify or insulted he is called a "mere scrivener"?

Also granted is the defendant's petition in Freeman v. United States, No. 09-10245.  This case has to do with crack, retroactivity of more lenient sentencing guidelines, and guilty pleas. Sixth Circuit opinion is here.

Also granted is the defendant's petition in Sykes v. United States, No. 09-11311. This case asks whether "resisting law enforcement" is a "violent felony" for the purpose of the Armed Career Criminal Act.  Seventh Circuit opinion is here; modification order is here. The actual question is whether Sykes has two violent priors or three. The other two priors are robbery, as is the present offense. Three robberies should be sufficient to throw away the key, regardless of the answer to the question in this case, IMHO.

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