During a trial, when the prosecution introduces a forensic laboratory report, does it satisfy the Confrontation Clause if a laboratory analyst who did not perform the analysis testifies and is cross-examined by the defendant, or must the analyst who prepared the report take the stand?
Following an arrest for Driving While Intoxicated (DWI), Petitioner Donald Bullcoming’s blood was tested at the New Mexico Department of Health in order to determine his blood alcohol content (BAC). At trial, the laboratory’s report was admitted into evidence even though the actual analyst who performed the test was not a witness. Instead, another analyst from the Department of Health testified to the laboratory’s procedures and the machinery used to conduct the BAC test. On appeal, Bullcoming argues that the information in the report was testimonial and that, because the actual analyst was not a witness subject to cross-examination, his Sixth Amendment right to confrontation was violated. Respondent New Mexico contends that the report is not testimonial because the testing analyst merely transcribed raw data and that, even if it is testimonial, Bullcoming’s confrontation rights were satisfied by the opportunity to retest the sample and cross-examine another analyst. To decide this case, the Supreme Court must balance a defendant’s right to confrontation against the burden that requiring the actual analyst to testify imposes on the state.
Questions as Framed for the Court by the Parties
Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
A jury convicted Petitioner Donald Bullcoming of aggravated Driving While Intoxicated (DWI); he was sentenced to two years in prison. Bullcoming appealed, but the New Mexico Court of Appeals and the Supreme Court of New Mexico affirmed his conviction.
Bullcoming’s arrest came after he rear-ended another vehicle. When the driver of the other vehicle noticed Bullcoming’s bloodshot eyes and the smell of alcohol on his breath, he called the police. Bullcoming immediately left the scene. The police caught up to him, however, and brought him back to the scene of the accident where he failed a variety of field sobriety tests. After he refused to take a breath test, the police obtained a search warrant to draw his blood. His blood alcohol content ("BAC") registered 0.21gms/100ml, more than double the legal limit of 0.08gm/100ml.
At trial, the nurse who drew Bullcoming’s blood, the arresting officer who observed the blood draw, and a forensic analyst from the Toxicology Bureau of the New Mexico Department of Health Scientific Laboratory Division all testified. Specifically, the analyst testified about the “standard procedures” the forensic lab uses to determine the BAC of a particular sample: a gas chromatograph machine detects various compounds, a computer prints the results, and a lab analyst records the results in a report. On this testimony, the trial court admitted the two-page BAC lab report into evidence at Bullcoming’s trial.
The testifying analyst, however, was not the analyst that actually prepared the BAC report nor did he have any involvement in preparing the report. The preparing analyst did not testify because he was on unpaid leave and unavailable for trial. The testifying analyst, however, stated that anyone could look at and transcribe the results from the gas chromatograph onto the BAC report.
Bullcoming appealed his DWI conviction on the ground that his rights under the Confrontation Clause of the Sixth Amendment had been violated. Specifically, he argued that the BAC report was improperly admitted to evidence because he had not been afforded a fair opportunity to cross-examine the analyst who actually prepared the report. On this argument, the New Mexico Supreme Court affirmed Bullcoming’s conviction; it found that the analyst who prepared the report was a “mere scrivener” who simply transcribed the gas chromatograph results, and concluded that the testimony of another analyst sufficiently provided Bullcoming with his constitutionally protected cross-examination opportunity. The Supreme Court granted certiorari to consider whether the testimony of a surrogate witness with knowledge of forensic procedures satisfies the Confrontation Clause.
The Sixth Amendment provides the accused in a criminal prosecution the right to confront the witnesses against him. This portion of the Sixth Amendment, known as the Confrontation Clause, bars the admission of testimonial evidence given by a witness outside of the courtroom. Out-of-court testimony is only admissible in court if the witness who made or created the statement is available at trial, or, where the witness is unavailable, if the defendant has already had some other opportunity to conduct cross-examination.
Is the Testing Analyst’s Report Testimonial?
Pursuant to the Supreme Court’s recent decision in Crawford v. Washington, the protections of the Confrontation Clause only apply to statements that are “testimonial” in nature. In Crawford, the Supreme Court defined testimony as “typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact.”
Petitioner Donald Bullcoming contends that the statements in the forensic analyst’s report, which was admitted into evidence despite the prosecution’s failure to produce the testing analyst as a witness, are testimonial in nature and therefore subject to the Confrontation Clause of the Sixth Amendment. These statements are testimonial, Bullcoming argues, because they intended to prove facts in a criminal case—here, that Bullcoming’s blood alcohol content (BAC) was a certain level at the time of the arrest. Bullcoming also notes that the exception to the Confrontation Clause does not apply here because there was no evidence to show either that the testing analyst was unavailable to appear trial or evidence that the defense previously had the opportunity cross-examine the testing analyst. Richard Friedman, a legal scholar specializing in the Sixth Amendment right to confrontation, provides support for this position by asserting that the Supreme Court recently implied that statements are testimonial if an objective person would have reasonably believed that their statements would be used at trial. Friedman further contends that there is “no doubt” that these statements were testimonial because if the testing analyst were a witness in the trial, then he would have testified to the same information that he recorded in the laboratory report.
In contrast, Respondent New Mexico argues that the forensic analyst’s unsworn report is not testimonial and therefore not subject to the Confrontation Clause. New Mexico contends that the analyst simply performed a routine scientific test pursuant to the legal duties imposed upon him as an analyst with the New Mexico Department of Health, therefore creating an unsworn, non-adversarial public record. The fact that this report is not an affidavit or other “formalized testimonial material,” New Mexico asserts, makes the report non-testimonial and eliminates the requirement that the testing analyst be subject to cross-examination. Additionally, New Mexico argues that the evidence truly at issue here is the non-testimonial raw data produced by the gas chromatograph machine, not the analyst’s statements in the testing report. Because the analyst merely copied the data directly from the machine printout onto the public report, without any interpretation or subjective analysis, New Mexico contends that this act of transcribing should not be considered a separate statement and should not be subject to the Confrontation Clause. According to New Mexico, recording the results of a scientific test does not make the analyst a witness that is subject to cross-examination in the courtroom.
Was Petitioner Deprived of the Right to Confrontation?
Bullcoming asserts that he was deprived of his Sixth Amendment right to confrontation because he was unable to cross-examine the analyst who prepared the forensic report. Because the Sixth Amendment provides the right for a criminal defendant to be “confronted with the witnesses against him,” Bullcoming argues that the use of a definite article—“the”—requires the prosecution to produce whoever actually made the statement or wrote the report. This particular-witness rule, according to Bullcoming, applies regardless of a defendant’s opportunity to cross-examine a surrogate witness about a “non-testifying witness’s testimonial statements.” Bullcoming contends that if there were an exception created for witnesses who record objective facts, as New Mexico asserts is the situation in this case, then almost any report of objective data could be admitted into evidence as long as another person could testify about the technology and procedure utilized by the recorder. Regardless of any possible exception, Bullcoming asserts that the analyst who created the report must be subject to cross-examination because he did not simply record facts. Instead, the analyst certified that he received Bullcoming’s blood sample intact, that the report number and the blood sample number “corresponded,” and that he conducted the scientific analysis pursuant to the appropriate testing procedures.
In opposition, New Mexico argues that even if the report is considered testimonial, admitting this report without producing the testing analyst as a witness did not deprive Bullcoming of his right to confrontation. While the right to confrontation may be satisfied through cross-examination, there are other methods that will also protect a defendant’s Sixth Amendment rights. Where the relevant evidence is raw data, New Mexico contends that the ability to retest the raw data provides the defendant with the same protections as an opportunity for cross-examination. New Mexico further asserts that retesting is an even better method of confrontation than cross-examination because the results of a test are more truthful than the testimony of a witness which relies on their memory. Therefore, New Mexico maintains, even absent the in-court testimony of the testing analyst, the superiority of retesting as a means of confrontation allows the report to be admitted into evidence without violating Bullcoming’s Sixth Amendment rights. New Mexico states that this conclusion is further supported by the fact that Bullcoming had the opportunity to cross-examine another analyst that was familiar with both the procedure that the testing analyst employed and the equipment that the testing analyst used in the conducting this test. New Mexico concludes that while the Sixth Amendment protects a defendant’s right to confrontation, it does not indiscriminately provide defendants with the most ideal or strategic form of attack on the prosecution’s detrimental evidence.
The Confrontation Clause of the Sixth Amendment protects a criminal defendant’s right to confront any witnesses against him. In appealing his Driving While Intoxicated (“DWI”) conviction, Petitioner Donald Bullcoming argues that his confrontation rights were violated because he did not have an opportunity to cross-examine the actual analyst who created the forensic report documenting his blood alcohol content ("BAC"). Respondent New Mexico argues that Bullcoming’s right to confrontation was satisfied because Bullcoming had an opportunity to cross-examine another analyst who was familiar with the BAC analysis.
Does Requiring the Actual Forensic Analyst to Testify Impose an Undue Burden on the State?
The Public Defender Service for the District of Columbia (“PDS”) argues that a decision for New Mexico will unnecessarily upend the “longstanding” constitutional practice of requiring the actual analyst to testify in court. Moreover, PDS argues, producing the actual analyst only rarely burdens the state because most criminal cases are resolved by plea bargains or other non-trial dispositions and because forensic analysis is a trial issue in only a small subset of cases. Similarly, a group of law professors argues that even if requiring the analyst to testify does impose a burden, that burden is not undue—even if it is “costly or time-consuming”—because the right to confrontation is unequivocal. Practicality, these professors argue, is not the primary consideration when answering a constitutional question.
In contrast, thirty-four states argue that a decision for Bullcoming will impose an undue burden on states by “monopoliz[ing]” laboratories and by imposing a “de facto statute of limitations” on criminal prosecutions because of the unavailability or lifespan of the actual analyst. Defendants, these states argue, would play the odds that the actual analyst would be unavailable for trial and refrain from entering plea bargains, further burdening state justice systems. Moreover, the 34 states assert, the typical “blood and-breath alcohol analyst” in California completed 3,220 analyses in 2007 alone. Accordingly, requiring the actual analyst to testify would impose far too big a burden on both the analyst and the state that foots the bill.
Does the Potential for Human Error in Forensic Analysis Necessitate that the Actual Analyst Testify?
The Innocence Network argues that forensic crime labs “lack the standards and oversight to control for human error,” so a decision for New Mexico would mean that lab reports could be based on analyst incompetence, negligence, bias, or could even be purely fabricated. Even recording “raw data in toxicological analyses” from a gas chromatograph leaves room for human error, the Innocence Network maintains, because the analyst must perform several steps to prepare the sample and the machine. This potential for error is a crucial subject for cross-examination, but “only if the analyst who performed the test is present.” A surrogate witness such as another analyst, the National Association of Criminal Defense Lawyers (“NACDL”) argues, will have no knowledge of the particular procedures used to prepare a specific sample for testing. Thus, NACDL argues, a decision for New Mexico would undermine a defendant’s ability to help the fact-finder assess “the reliability of evidence” and analyst testimony.
In contrast, the Scientific Laboratory Division (“SLD”) of New Mexico’s Department of Health argues that using the gas chromatograph machine to determine BAC does not leave much room for human error. SLD’s standard procedures, it argues, leaves “no room for individualized approaches for BAC testing.” As a result, any analyst familiar with BAC testing can readily and accurately testify about any BAC report. Moreover, the 34 States insist, a decision for Bullcoming would actually worsen the reliability of BAC testing because it would create “adverse results” due to “increasing demands on an already overtaxed, inconsistent, and under-resourced forensic science infrastructure.” Moreover, it would do so without any justifiable reason, the National District Attorneys Association points out, because “anecdotal horror stories” about forensic lab error should not define the scope of a constitutional right.
At Donald Bullcoming’s trial for DWI, the forensic analyst who performed the BAC test did not actually testify; instead, another analyst from the same lab testified as to BAC analysis procedures and equipment. Bullcoming argues that his constitutional right to confrontation was violated when he did not have the opportunity to cross-examine the actual analyst. New Mexico, however, contends that Bullcoming’s right to confrontation was meaningfully satisfied by the opportunity to retest his blood sample and by the opportunity to cross-examine another forensic analyst. The reliability of forensic evidence as well as the burden that requiring the actual analyst to testify imposes on the state will be crucial to the Supreme Court’s resolution of this case.