Sixth Amendment: Confrontation Clause

The police apprehended Donald Bullcoming after he rear-ended a pick-up truck in New Mexico.  A blood sample taken from Bullcoming was sent to a State forensic lab for a blood-alcohol content (“BAC”) analysis.  Curtis Caylor, a forensic analyst, certified in a report that Bullcoming’s BAC was 0.21 grams per hundred milliliters, well over the threshold for aggravated DWI.  At trial, the State did not call Caylor to testify; without asserting that Caylor was actually unavailable, the State merely announced that he had been placed on unpaid leave.  The trial court admitted the report as a business record and permitted another analyst, Gerasimos Razatos, to testify as a surrogate for Caylor.  Bullcoming was convicted of aggravated DWI and the New Mexico Supreme Court upheld the conviction. 

In Bullcoming v. New Mexico (09-10876), Justice Ginsburg – joined in full by Justice Scalia and in part by Justices Sotomayor, Kagan and Thomas – delivered the majority’s opinion that the BAC report was inadmissible under the Sixth Amendment’s Confrontation Clause.  The Court concluded that the report was “testimonial,” and that (according to a recent line of cases addressing Confrontation Clause requirements for forensic evidence), the report could only be admitted if Caylor was unavailable and if Bullcoming had been able to cross-examine Caylor previously.  The Court argued that Razatos could not substitute for Caylor because he had not participated in the analysis and was not in a position to provide the kind of testimony that would enable effective cross examination concerning the report (i.e. about the factual circumstances of the analysis, any lapses that might have occurred in conducting it, and the reasons for Caylor’s unpaid leave).  In a concurring opinion, Justice Sotomayor emphasized a particular test for determining whether a statement is testimonial: whether the primary purpose of the statement is to create an out-of-court substitute for testimony.  She also articulated a number of factual scenarios in which forensic evidence might be admissible without creating the same kinds of issues under the Confrontation Clause.   Justice Kennedy, joined by Chief Justice Roberts and Justices Breyer and Alito, dissented, contending that the admission of Razatos’ testimony was in full accordance with the Confrontation Clause.  Justice Kennedy – who expressed deep disagreement with the jurisprudential foundations and practical effects of the recent line of cases addressing Confrontation Clause requirements for forensic evidence – argued that good procedural alternatives exist to ensure the reliability of forensic evidence.