Analysis

A closely divided Supreme Court on Thursday continued its pattern of restricting prosecutors’ use of out-of-court statements to get criminal convictions, ruling that a report of a crime lab is valid evidence only if the technician who did the testing or observed it — not a substitute witness — is called to the stand. But the main opinion, and a concurring opinion, labored at length to stress just how little the Court had decided. It was clear that the Justices who controlled the outcome had been put on the defensive by an aggressive dissent — typical in this line of cases.

The case of Bullcoming v. New Mexico (09-10876) was a test of whether a five-vote majority would remain to protect the constitutional legacy of the Court’s seven-year-old ruling that for the first time demanded that live witnesses be summoned to court in a criminal trial, to face cross-examination for statements made outside of court that could help persuade a jury to convict. That basic ruling came in Crawford v. Washington. Since the most recent sequel, the 5-4 decision in Melendez-Diaz v. Massachusetts, in 2009, two Justices from the majority then have retired, so Bullcoming was the first chance to see whether their replacements would be part of a majority adhering to the Crawford doctrine.

The result was somewhat uncertain. Justice Sonia Sotomayor, who replaced Justice David H. Souter, supported the outcome and joined most of the main opinion but also wrote on her own to put special emphasis on “the limited reach” of the main opinion (written by Justice Ruth Bader Ginsburg). And Justice Elena Kagan, who replaced Justice John Paul Stevens, joined most of the Ginsburg opinion, but not support the concluding section that suggested ways for prosecutors to get crime lab reports before juries, and also did not join Sotomayor’s recital of what was not decided — a recital that also might be a road map for prosecutors from here on.

Without counting the numbers, it appeared that what might be called the current “Crawford majority” was a bit shaky. That could not be said, though, of the dissenters. Those four, using the same kind of strong rhetoric they did when Melendez-Diaz went against their views two years ago, protested with renewed vehemence about the majority’s barring of “reliable” evidence of crime because of their devotion to a “wooden formalism” in applying the Constitution’s Confrontation Clause.

This renewed battle over the Sixth Amendment right of an accused person to confront, face-to-face, those who were his accusers, came in the most routine kind of criminal case: drunk driving. By the 5-4 vote, the Court overturned a decision of the New Mexico Supreme Court. That court had upheld the conviction of Donald Bullcoming of Farmington, N.M., on charges of aggravated drunk driving. Bullcoming was sentenced to two years in prison.

The majority on Thursday ruled that Bullcoming’s confrontation right had been violated because prosecutors were allowed to offer a crime lab report analyzing Bullcoming’s blood sample, and had called to the witness stand not the lab analyst who did the tests, but a supervisor at the lab who had neither done the test nor observed it being done. Producing such a substitute, or “surrogate,” witness, the Court ruled, is not sufficient to satisfy the Sixth Amendment confrontation right. This, the Court said, logically followed from the Melendez-Diaz ruling, which had ruled that a crime lab report could not be introduced without some live testimony from an analyst to defend it and to be cross-examined about it.

In the crime lab sequel case of Bullcoming, the Court decided, in the words of Justice Ginsburg as she announced the decision orally, “we decide who that live witness must be.” The only person who could fill the role on the stand, she wrote, is an expert who actually did the testing and prepared the lab report the prosecution wants to offer, or a person who closely observed the testing that led to the report. Even if the lab report is otherwise entirely reliable, Ginsburg wrote, only a technician closely involved in its preparation can be the one to defend it and face defense lawyers’ challenging questions.

The main opinion suggested that there is often an opportunity for some missteps to be made in the laboratory as evidence is analyzed, but said the Sixth Amendment demand for a witness to defend that report could not be dispensed with even if the testing was done entirely within scientific standards. And the technician directly involved has to appear, the opinion added, whether or not that individual was fully competent in a technical sense and entirely credible — possessing “the scientific acumen of Madame Curie and the veracity of Mother Teresa.”

Using a surrogate, such as an uninvolved lab supervisor in Bullcoming’s case, the Court said, “could not convey what [the technician who did the test] knew or observed about the events” in the lab as the testing was done and a report prepared. And, it added, a surrogate could not “expose any lapses or lies” on the part of the analyst who did the tests and signed the resulting report.

Those declarations had the support of Justices Kagan, Sotomayor, Antonin Scalia and Clarence Thomas (although Thomas refused to support a footnote that suggested that some “business and public records” could be admitted as evidence even without confrontation, because of the benign purpose for which they were offered. Justice Sotomayor made further clear in her separate opinion that the lab report used against Bullcoming should not have been admitted.

Kagan, Thomas and Sotomayor did not support what was labeled Part IV of the Ginsburg opinion, which had the support only of Scalia. In that section, Ginsburg contended that the ruling would not “impose an undue burden” on prosecutors. She then discussed several ways by which “forensic evidence” — that is, crime lab reports — could be offered at trial. She suggested that states could require labs to preserve the evidence so that it can be retested and then call to the stand the technician who did the new analysis if the technician who did the first report is not available, or pass a law that would require prosecutors to give defense lawyers advance notice of a plan to use a lab report and take away the defense’s confrontation right if they failed to demand that the preparer appear.

In that section, Ginsburg also sought to marshal statistics — different from those used by the defense to make an opposite point — that past Crawford rulings have not caused the sky to fall.

Justice Sotomayor’s concurring opinion also sought to answer the dissent’s anxious worries over impact, suggesting that a lab report might come into evidence on its own if it had not been prepared with the purpose of creating evidence of a crime, a lab supervisor might be allowed to come in to defend a report if he or she had a personal connection to the test at issue — such as observing the technician who did the testing, expert witnesses might be used to give their independent opinion about a lab report if the report itself is not admitted, or “raw data generated by a machine,” with no other subjective analysis of its contents, might be admissible along with the testimony of an expert witness on such a machine.

Justice Anthony M. Kennedy’s strongly worded dissent was joined by Chief Justice John G. Roberts, Jr., and by Justices Samuel A. Alito, Jr., and Stephen G. Breyer. Much of the dissenting opinion amounted to an argument favoring admissions of reliable documents as evidence in criminal trials. A good deal of the rhetoric, though, was merely a continuing complaint about the entire line of cases beginning with Crawford, and a renewal of complaints about how those rulings are disrupting the way crime labs operate and criminal trials are conducted.

Recommended Citation: Lyle Denniston, Opinion analysis: New curb on crime lab reports, SCOTUSblog (Jun. 23, 2011, 2:35 PM), https://www.scotusblog.com/2011/06/opinion-analysis-new-curb-on-crime-lab-reports/