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The Sixth Amendment, Lab Reports, and "Skullduggery"

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The Supreme Court heard argument today in Bullcoming v. New Mexico (case no. 09-10876), a sequel to the 2009 case Melendez-Diaz v. Massachusetts.

Like Melendez-Diaz, this case concerned the admissibility of lab reports in light of a criminal defendant's Sixth Amendment right to confront his or her accusers.  More specifically, the issue here was whether a defendant's opportunity to cross examine an analyst from the lab that prepared the report, rather than the analyst who personally prepared the report, satisfied this constitutional right.
Bullcoming's position can be summed up by his attorney's parting statement to the court: "[T]he State just brought the wrong witness."  Prior cases clearly spell out that testimonial statements, i.e. those made with the primary purpose of serving a substitute for in-court testimony (which includes lab reports, as held in Melendez-Diaz), are admissible only if the declarant is available for cross-examination.  In the context of lab reports, the analyst who personally prepared the report is the declarant, because he or she is the person attesting to the procedure and results indicated on the report.  Any other analyst - even one from the same lab - doesn't cut it.

New Mexico argued there was a meaningful distinction between the report in this case (showing Bullcoming's blood alcohol content at the time of his arrest) and the report in Melendez-Diaz (a certificate of analysis indicating the chemical makeup of a substance suspected to be cocaine).  In this case, the state argued, the lab analysts performed the work for scientific reasons, not to assist in a prosecution.  But the state quickly conceded, in response to questioning by Justice Roberts and Justice Scalia, that the form submitted to the lab would indicate police were requesting the lab tests.  And because the "purpose test" in identifying testimonial statements, as explained further on Monday in Michigan v. Bryant, centers on "the purpose that reasonable participants would have had," it's likely that a reasonable tech would recognize the prosecutorial nature of a police officer's request for a blood alcohol test.

The recent pronouncement of Michigan v. Bryant was certainly a fly in the ointment for this case.  New Mexico apparently made some last minute changes to its oral argument approach, beginning with a reference to the two-day-old case.  And later, the state interjected a novel "interrogation" component into the Confrontation Clause, arguing Bryant may have implied the "purpose test" for identifying testimonial statements was only appropriate in situations of police questioning.  Justice Scalia didn't buy it.

Scalia also seemed troubled by the particular facts of this case, pointing out that the original lab analyst who prepared Bullcoming's blood alcohol report was unavailable to testify because he was on unpaid leave.  And because the state called another analyst to testify, the jury never learned the reason the original one was gone - a fact that may have had a significant bearing on the original analyst's credibility.  Scalia noted that this "possibility of skullduggery . . . is a good reason for saying this is testimonial."

One possible downfall to Bullcoming's position, however, emerged in response to questioning from Justice Breyer.  If the original declarant is required in court under these circumstances, what about the preparers of other generally-admissible documents?  For instance, when proving the chain of custody of a suspect's blood sample, would the state be forced to produce the specific nurse who drew the blood, as well as any other individual who signed off on the evidence along the way?  Because these people likely had an idea the documentation would later be used at trial, are these evidentiary items also "testimonial," thus triggering the right to cross examination?  Scalia brushed aside this slippery slope argument, characterizing it as simply "a boogeyman."  

Looks like the Sixth Amendment might soon require the state to bring the "right witness."

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