United States Supreme Court decision in Bullcoming v. New Mexico

The United States Supreme Court issued its decision in Bullcoming v. New Mexico today, holding that the Sixth Amendment precludes the State from introducing a lab report of a forensic blood test without calling the analyst who conducted the analysis. The State attempted to satisfy the confrontation clause by calling a different analyst who did not conduct the test but was familiar with blood testing procedures. The United States Supreme Court found that the defendant’s right of confrontation was violated by this procedure in a 5-4 decision. Click this link to read a copy of the decision.

The decision of the Court is notable in that four justices viewed the result to be governed by the Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. ___ (2009). The Court rejected the argument that the seeming reliability of scientific evidence does not exclude this evidence from being subject to the Confrontation Clause. The Court cited argument raised in the brief of the National Association of Criminal Defense Lawyers that errors in forensic blood test are not so remote to be negligible.

Finally, the court rejected the argument that requiring live testimony is too burdensome for the State. As in Melendez-Diaz, the Court stressed that notice and demand procedures can be used to help reduce the expense of having a forensic expert testify in court.

As a Massachusetts DUI lawyer, the importance of this decision in terms of predicting how the Court will decide future cases can be found in the concurring opinion of Justice Sotomayor. Assuming the current composition on the court remains unchanged, Justice Sotomayor appears to be the swing vote on confrontation clause cases.

Justice Sotomayor emphasized that she would apply the “primary purpose” test that the Court emphasized in the recent case of Michigan v. Bryant, 562 U.S. ___ (2011). Rather than emphasizing that the Bullcoming case was a direct application of Melendez-Diaz, Justice Sotomayor stressed that the primary purpose of the laboratory report was clearly for use at trial and she applied the balancing approach used in Bryant by underscoring the formality inherent in the certification, as being an indication that the primary purpose was for use in court.

Of most importance to a Massachusetts DUI lawyer is that Justice Sotomayor listed the factual circumstances not raised by this case, indicating a limitation on the court’s holding:

  1. if there was an alternative purpose for lab report, such as if it was part of a medical record and obtained in the course of medical treatment.
  2. If another analyst or supervisor observed the testing procedures;
  3. If an expert witness was asked about a report not admitted into evidence; and
  4. if there was only a machine generated result.

Justice Sotomayor raised the issue of whether raw data alone, without statement regarding the procedure used, would violate the confrontation clause. This would include not only blood test results but also apply to breathalyzer evidence. The Court’s Bullcoming and Melendez-Diaz decision should be interpreted to require live testimony for the presentation of scientific evidence, including breathalyzer test results. The Bullcoming opinion stressed that the purported reliability of scientific evidence cannot justify a departure from the requirement that the Constitution requires the right of confrontation. Based on the language of the court and even applying the “primary purpose test”, the Court should hold if confronted with the issue that a live witness is necessary to testify to the accuracy of breathalyzer test results. The Bullcoming decision indicates that the Massachusetts Supreme Judicial Court’s recent decision in Commonwealth v. Zeininger, may no longer be good law as the SJC held that breathalyzer records showing the accuracy of the breathalyzer machine are nontestimonial.

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