Today the U.S. Supreme Court decided Bullcoming v. New Mexico, the sequel to Melendez-Diaz v. Massachusetts on lab techs and the Confrontation Clause. The decision was 5-4 for most of the opinion, written by Justice Ginsburg and joined by Justices Scalia, Thomas, Sotomayor, and Kagan. One part of Justice Ginsburg's opinion, though, was joined only by Justice Scalia. The dissent is by Justice Kennedy joined by Chief Justice Roberts, and Justices Breyer and Alito. For cases in this line, the lineup typically does not follow the usual "conservative v. liberal" labels.
Bullcoming rear-ended another vehicle and took off but was apprehended. He was obviously drunk without any forensic evidence, but the lab test showed his blood alcohol at .21. In New Mexico, topping .16 qualifies for aggravated DWI, also known as "drunk as a skunk." By the time of trial, the lab tech who did the analysis and prepared the report was on "unpaid leave" for undisclosed reasons (which probably means some kind of discipline issue). Another tech testified as to lab practices.
The New Mexico Supreme Court in Bullcoming thought it could get around Melenez-Diaz by saying the tech was a "mere scrivener," simply recording what comes out of the machine. I worked in labs for several years, both as a worker bee and later as a manager, and I knew that holding was, well, bull. The technician's skill and meticulousness matters. When a sample was especially important, I made damn sure the test was done by one of the good ones.
So where does this leave us as a practical matter? Testimony in every case by the technician who ran the sample is potentially a huge problem. People leave organizations, not always on good terms. People sometimes die before their time.
Bullcoming rear-ended another vehicle and took off but was apprehended. He was obviously drunk without any forensic evidence, but the lab test showed his blood alcohol at .21. In New Mexico, topping .16 qualifies for aggravated DWI, also known as "drunk as a skunk." By the time of trial, the lab tech who did the analysis and prepared the report was on "unpaid leave" for undisclosed reasons (which probably means some kind of discipline issue). Another tech testified as to lab practices.
The New Mexico Supreme Court in Bullcoming thought it could get around Melenez-Diaz by saying the tech was a "mere scrivener," simply recording what comes out of the machine. I worked in labs for several years, both as a worker bee and later as a manager, and I knew that holding was, well, bull. The technician's skill and meticulousness matters. When a sample was especially important, I made damn sure the test was done by one of the good ones.
So where does this leave us as a practical matter? Testimony in every case by the technician who ran the sample is potentially a huge problem. People leave organizations, not always on good terms. People sometimes die before their time.
In Part IV of the opinion, speaking only for herself and Justice
Scalia, Justice Ginsburg suggests notice-and-demand statutes. The
prosecution sends the defense the report it intends to introduce, and
the defense must demand confrontation to preserve that right. Justice
Kennedy notes in dissent that there is no downside to demanding. We can
be sure it will be done every time in capital cases, where maximizing
expense is now a standard part of defense culture.
Can we make the confrontation, if demanded, more reliable and less expensive? Routine use of video-recorded testimony is a possibility. Serve the notice as soon as defendant has counsel. If demand is made, give notice that the technician's testimony will be recorded at a time and place chosen for the technician's convenience, not defense counsel's. Schedule it as soon as possible after appointment of counsel to minimize the problem of technicians leaving employment. All the cases involving one technician can be batched up for one day. Counsel can show up and cross-examine if he chooses.
Jurisprudentially, Justice Kennedy rips the whole Crawford line for the confused mess it has become. We knew there was trouble at the outset when Crawford drew the line at "testimonial" statements but refused to clearly define what that meant.
Justice Sotomayor may be the "swing" vote who determines the course of Confrontation Clause jurisprudence for the foreseeable future as the others divide 4-4. (Justice Stevens had that role for death penalty in the mid-to-late 70s and early 80s, with disastrous results.) Her separate opinion tries to clarify some of the confusion from Michigan v. Bryant, earlier this term, saying that reliability of the evidence is "relevant" but not "essential" in deciding whether a statement is "testimonial." That's clear as mud.
Primary purpose is the key, we are told. Is the primary purpose of a statement evidentiary or something else? But primary purpose is not always evident. How about an autopsy? Somebody died and we don't know why. The medical examiner knows full well that his results will likely be evidence in a prosecution if he determines it is homicide, but he doesn't know that when he starts. Finding out is the point of the examination.
Quoting his own Melenez-Diaz dissent and Scalia's Bryant dissent, Justice Kennedy writes, "This Court's prior decisions leave trial judges to 'guess what future rules this Court will distill from the sparse constitutional text,' ... or to struggle to apply an 'amorphous, if not entirely subjective,' 'highly context-dependent inquiry' involving 'open-ended balancing.' "
He also throws in a nice federalism argument. "In short, there is an ongoing, continued, and systemic displacement of the States and dislocation of the federal structure." Yes, and that is equally true of most of the Supreme Court's constitutional criminal procedure jurisprudence. Decades ago, Judge Henry Friendly denounced the trend of extrapolating the Bill of Rights into "a detailed Code of Criminal Procedure, to which a new chapter is added every year." Many chapters have been added since.
Justice Kennedy also writes, "the States are not just at risk of having some of their hearsay rules reviewed by this Court. They often are foreclosed now from contributing to the formulation and enactment of rules that make trials fairer and more reliable." Bingo.
So what should the Court do about all this? One possibility is to simply define "witness" for the purpose of the Sixth Amendment as the person whose testimony is submitted to the trier of fact. If the witness testifies to something someone else said, that is a hearsay question and not a Confrontation Clause question. The answer depends on the rules of evidence, subject to modification through the normal democratic process, not on judges distilling rules from sparse constitutional text. Not much chance of that happening, of course.
Can we make the confrontation, if demanded, more reliable and less expensive? Routine use of video-recorded testimony is a possibility. Serve the notice as soon as defendant has counsel. If demand is made, give notice that the technician's testimony will be recorded at a time and place chosen for the technician's convenience, not defense counsel's. Schedule it as soon as possible after appointment of counsel to minimize the problem of technicians leaving employment. All the cases involving one technician can be batched up for one day. Counsel can show up and cross-examine if he chooses.
Jurisprudentially, Justice Kennedy rips the whole Crawford line for the confused mess it has become. We knew there was trouble at the outset when Crawford drew the line at "testimonial" statements but refused to clearly define what that meant.
Justice Sotomayor may be the "swing" vote who determines the course of Confrontation Clause jurisprudence for the foreseeable future as the others divide 4-4. (Justice Stevens had that role for death penalty in the mid-to-late 70s and early 80s, with disastrous results.) Her separate opinion tries to clarify some of the confusion from Michigan v. Bryant, earlier this term, saying that reliability of the evidence is "relevant" but not "essential" in deciding whether a statement is "testimonial." That's clear as mud.
Primary purpose is the key, we are told. Is the primary purpose of a statement evidentiary or something else? But primary purpose is not always evident. How about an autopsy? Somebody died and we don't know why. The medical examiner knows full well that his results will likely be evidence in a prosecution if he determines it is homicide, but he doesn't know that when he starts. Finding out is the point of the examination.
Quoting his own Melenez-Diaz dissent and Scalia's Bryant dissent, Justice Kennedy writes, "This Court's prior decisions leave trial judges to 'guess what future rules this Court will distill from the sparse constitutional text,' ... or to struggle to apply an 'amorphous, if not entirely subjective,' 'highly context-dependent inquiry' involving 'open-ended balancing.' "
He also throws in a nice federalism argument. "In short, there is an ongoing, continued, and systemic displacement of the States and dislocation of the federal structure." Yes, and that is equally true of most of the Supreme Court's constitutional criminal procedure jurisprudence. Decades ago, Judge Henry Friendly denounced the trend of extrapolating the Bill of Rights into "a detailed Code of Criminal Procedure, to which a new chapter is added every year." Many chapters have been added since.
Justice Kennedy also writes, "the States are not just at risk of having some of their hearsay rules reviewed by this Court. They often are foreclosed now from contributing to the formulation and enactment of rules that make trials fairer and more reliable." Bingo.
So what should the Court do about all this? One possibility is to simply define "witness" for the purpose of the Sixth Amendment as the person whose testimony is submitted to the trier of fact. If the witness testifies to something someone else said, that is a hearsay question and not a Confrontation Clause question. The answer depends on the rules of evidence, subject to modification through the normal democratic process, not on judges distilling rules from sparse constitutional text. Not much chance of that happening, of course.
Justice Ginbsburg's opinion has something of a blunder in footnote 10, saying the dissent refers to experience in Los Angeles
"but overlooks experience documented in Michigan. In that State, post-Melendez-Diaz, the increase in in-court analyst testimony has been slight. Compare PDS Brief 21 (in 2006, analysts provided testimony for only 0.7% of all tests), with Michigan State Police, Forensic ScienceDivision, available at http://www.michigan.gov/msp/0,1607,7-1231593_3800-15901--,00.html (in 2010, analysts provided testimony forapproximately 1% of all tests)."
But how can Michigan be relevant? The only relevant "before and after" Melendez-Diaz figures that matter are those from jurisdictions that allowed use of certificates/affidavits/lab reports before Melendez-Diaz and no longer can. How much did that increase lab tech time in court? Michigan is NOT such a state. Michigan has never allowed--absent stipulation--lab reports in place of live testimony at trial, and so that Melendez-Diaz makes no significant difference in terms of lab techs hours in court in Michigan is precisely what one would expect, given that the case did NOT change a previous practice in Michigan.
I also think there's still an argument to made for autopsy reports, and that the Court will someday take an autopsy-report case.