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White Collar Defense & Compliance Developments in Criminal Law, Federal Case Law and Statutory Developments

Concurring Opinion In Bullcoming Shows Ways Around Rigid Confrontation Clause Analysis

Posted in Constitutional law

We have written of the Supreme Court’s application of the newly-muscular Confrontation Clause to require the government in prosecutions involving lab reports to generally call the lab technician who conducted the tests whose results are being reported. As discussed here, in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), the Court held that a laboratory report was testimonial and subject to the Confrontation Clause if it was created for use as evidence in a criminal trial, and, in that event, its admission required either a live witness to testify to its contents or the opportunity for the defense to have earlier cross-examined the witness who prepared the report but who was unavailable for trial.

Some lower courts have uncertainly wrestled with the Confrontation Clause analysis, as in a Fifth Circuit decision which clumsily analyzed the “testimonial” prong of the analysis, as discussed here.

In its latest consideration of the issue, the Supreme Court in a 5-4 decision on June 23, 2011 in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), held that if the report-writer was not available to testify, then the prosecution could not simply substitute some other employee of the same lab. In Bullcoming, a state DUI case, the prosecution offered another laboratory employee who had not conducted the questioned test on the driver’s blood sample, but who was familiar with the testing equipment and procedures. First, the lab report was held to be “testimonial.” Although it was not sworn and notarized, as was the drug-testing certificate held to be "testimonial" in Melendez-Diaz, the distinction was not meaningful; both lab certificates were formalized in a signed document and were created for trial. Second, the substitution of another lab employee was inadequate, since the cross-examiner was entitled to explore the testimony of the technician who tested the sample and who made, or chose not to offer, in the report observations about the sample and the test.

In a concurring opinion, Justice Sotomayor chose to emphasize prosecutorial approaches which may not have been foreclosed by Melendez-Diaz and Bullcoming. First, the concurrence noted that the Court was not presented with a case in which a lab supervisor, who had some overarching connection to the lab report if not personal involvement in its creation, had testified; that might present a “different case,” although the degree of involvement which the witness was required to have with the testing would have to be explored. Second, the testifying witness was not asked for his expert, independent opinion about the underlying test performed by another; under Fed. R. Evid. 703, which generally permits a testifying expert to rely on inadmissible hearsay, that too would present a “different question.” (In an earlier opinion, the Seventh Circuit in United States v. Turner, 591 F.3d 928 (7th Cir. 2010), had likewise identified Rule 703 as a possible way to circumvent the perceived need for live testimony from the testing official, see here.)  Third, this was not a case where only machine-produced results were introduced, since the Bullcoming lab report contained the missing technician’s statements about the results and the procedures employed; a different case would be presented if the prosecution had introduced raw testing data through an expert witness. In short, there remain several avenues for an enterprising prosecutor to overcome the unavailability of one particular lab employee, given a sufficient amount of time to plan and make necessary expert witness disclosures prior to trial.
 

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office. A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)