WASHINGTON — Nearly two years after the U.S. Supreme Court ruled that a lab report introduced as criminal evidence is testimonial in nature, requiring the technician who prepared it to be available to testify, the justices are still wrangling with the Sixth Amendment issue.
On Wednesday, the Court considered in Bullcoming v. New Mexico if the testimony of a lab supervisor who did not prepare the blood-alcohol report used as evidence in the aggravated DWI case satisfies the Confrontation Clause.
At trial, the prosecution admitted Donald Bullcoming’s blood-alcohol test results without making available for cross-examination the analyst who prepared the report, instead calling the analyst’s supervisor as a witness. Bullcoming was ultimately convicted by a jury and sentenced to a two-year prison term.
He appealed, arguing that the Supreme Court in Melendez-Diaz v. Massachusetts required the prosecution to make the lab analyst who performed the blood test available for cross-examination.
The New Mexico Supreme Court upheld his conviction before the U.S. Supreme Court granted Bullcoming’s petition for certiorari.
Jeffrey L. Fisher, a partner in a San Francisco law firm representing Bullcoming, argued that testimony from a stand-in analyst does not satisfy the Confrontation Clause.
“The prosecution cannot introduce one person’s testimonial statements through the in-court testimony of someone else,” Fisher told the justices. “[This] violates the defendant’s right to have the witness testify in his presence, in the presence of the jury so the jury can observe it, and under oath.”
The justices questioned just how such a rule would be applied.
“What if you had two people doing this procedure?” Chief Justice John G. Roberts asked. “One takes the blood samples from the vial … the other puts the aluminum stuff on and crimps it. Do you have both of them testify?”
“If both people were there for the whole thing, the state could have either one of them testify,” Fisher said, because each one “watched the thing go into the machine [and] watched this result come out [and] saw that it wasn’t tampered with.”
“I don’t understand,” interjected Justice Anthony Kennedy. “How is that different than a supervisor of the lab saying, ‘I know what these people do, I watch them on a day-to-day basis?’”
New Mexico Attorney General Gary K. King argued that Melendez-Diaz did not apply to the instant case.
“The report that we’re talking about is a public record, and that differentiates it from the affidavit in Melendez-Diaz,” King said, noting that the Melendez-Diaz affidavit was prepared after a lab test was performed for the purpose of use at trial. The blood-alcohol test result in the instant case was made “contemporaneously by the analyst in the lab.”
“So what difference does it make?” Justice Antonin Scalia asked.
“The key is to look at the purpose of the analyst who was preparing the report,” King said. “[He] is a public employee who is just … copying the information from the machine onto the report.”
Justice Sonia Sotomayor disagreed. “He’s not simply looking at a number and putting it on a report,” Sotomayor said. “He’s certifying to following certain steps, [and] that the evidence wasn’t tampered with.”
Scalia, noting that the record indicated that the original analyst was on leave without pay at the time of the trial, asked if the prosecution “intentionally set it up this way so that this person would not have to testify.”
“That’s not the case,” King said, explaining that the trial came about hastily after a plea agreement fell through.
“I don’t know what the facts are, but boy, it smells bad to me,” Scalia said. “It really does. And even if that was not the case, the mere possibility that it could have been the case shows why you should have to bring this person in if you want to introduce his testimony.”
A decision is expected later this term.
Lawyers USA is a sister publication of The Daily Record.