Supreme Court Watch: New Confrontation Clause Case Added To Calendar Concerning Statements Of A Nontestifying Forensic Analyst

Supreme Court decides to hear Confrontation Clause case which may clarify what constitutes “testimonial” statements after Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), and whether a majority of the new Court continues to support the Confrontation Clause analysis in Crawford v. Washington, 541 U.S. 36 (2004), in Bullcoming v. New Mexico (No. 09-10876)

Yesterday, on September 28, 2010, the Supreme Court granted certiorari review on a New Mexico Supreme Court opinion which presents the following question:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying 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.

In Melendez-Diaz v. Massachusetts, in a five to four decision, the Supreme Court held that certificates of forensic analysis are “testimonial,” and therefore “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” Melendez-Diaz, 557 U.S. at __.

The new Bullcoming case under review involved a conviction for aggravated driving while intoxicated. At trial, the government admitted a Report of Blood Alcohol Analysis (Exhibit 1) concerning the defendant’s blood (reproduced below). As the New Mexico Supreme Court summarized the trial evidence:

The analyst who prepared Exhibit 1 did not testify at Defendant's trial because he "was very recently put on unpaid leave." However, [New Mexico Department of Health, Scientific Laboratory Division, Toxicology Bureau analyst] Razatos, who had no involvement in preparing Exhibit 1, testified about Defendant's [blood alcohol content] BAC and the standard procedures of the laboratory. He testified that the instrument used to analyze Defendant's blood was a gas chromatograph machine. The detectors within the gas chromatograph machine detect the compounds and the computer prints out the results. When Razatos was asked by the prosecutor whether "any human being could look and write and just record the result," he answered, "Correct." On cross-examination he also testified that this particular machine prints out the result and then it is transcribed to Exhibit 1. Both the nurse who drew the blood and the officer who observed the blood draw and who also prepared and sent the blood kit to SLD, testified at trial and were available for cross-examination.

In applying the 2009 Melendez-Diaz v. Massachusetts ruling, the New Mexico Supreme Court reversed its prior precedent and concluded that “Exhibit 1 in the present case, like the certificates in Melendez-Diaz, are testimonial despite the fact that they are unsworn.” The state supreme court held: "Although the blood alcohol report was testimonial, we conclude that its admission did not violate the Confrontation Clause, because the analyst who prepared the report was a mere scrivener who simply transcribed the results generated by a gas chromatograph machine and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy Defendant’s right to confrontation." New Mexico v. Bullcoming, 147 N.M. 487, 226 P.3d 1, 4 (Feb. 12, 2010) (No. 2010-NMSC-007).

Last Term, the Supreme Court heard oral argument in another Confrontation Clause case, Briscoe v. Virginia (07-11191). The question presented concerned whether the state can "avoid" its obligation to make a lab analyst who prepared a testimonial report available for defense cross-examination "by providing ... the accused ... a right to call the analyst as his own witness” at trial. However, on January 25, 2010, the Supreme Court vacated and remanded the case “for further proceedings not inconsistent with the opinion in Melendez-Diaz v. Massachusetts, 557 U. S. ___ (2009).” Briscoe v. Virginia, 559 U. S. __ (2010) (per curiam) (07-11191). See also Supreme Court Watch: Certiorari Granted In Briscoe v. Virginia: Confrontation Clause Case Set For 2010 Supreme Court Term ; Supreme Court Watch: Summary Of Briscoe Oral Argument ; Supreme Court Watch: Impact From Briscoe v. Virginia Remand.

New Majority?

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

For more information on the case, see the Bullcoming v. New Mexico Resource Page. For the briefs and docket sheet in the Bullcoming case, see:


The report at issue in Bullcoming follows:

Report of Blood Alcohol Analysis

  1. The laboratory named on the front of this report is a laboratory authorized or certified by the Scientific Laboratory Division of the Health Department to perform blood and alcohol tests. The agency has established formal procedures for receipt, handling and testing of blood samples to assure integrity of the sample, a formal procedure for conduct and report of the chemical analysis of the samples by the gas chromatographic method (_______) (specify, if other method used) and quality control procedures to validate the analyses. The quality control procedures include semi-annual proficiency testing by an independent agency. The procedures have the general acceptance and approval of the scientific community, including the medical profession, and of the courts, as a means of assuring a chemical analysis of a blood sample that accurately discloses the concentration of alcohol in the blood. The same procedures are applicable for samples other than blood if submitted for alcohol analysis. The analyst who conducts the analysis in this must meet the qualification required by the director of this laboratory to properly conduct such analyses. The supervisor of analysts must also be qualified to conduct such analyses.
  2. When a blood sample is received at the laboratory, the receiving employee examines the sample container and:
    (a) determines that it is a standard container of a kit approved by the director of the laboratory;
    (b) determines that the container is accompanied by this report, with Part A completed;
    (c) determines that the donor's name and the date that the sample was taken have already been entered on this report and on the container and that they correspond;
    (d) makes a log entry of the receipt of the sample and of any irregularity in the condition of the container or its seals;
    (e) places a laboratory number and the date of receipt on the log, on the container, and on this report, so that each has the same laboratory number and date of receipt;
    (f) completes and signs the Certificate of Receiving Employee, making specific notations as to any unusual circumstances, discrepancies, or irregularities in the condition or handling of the sample up to the time that the container and report are delivered to the analysis laboratory;
    (g) personally places the container with this report attached in a designated secure cabinet for the analyst or delivers it to the analyst.
  3. When the blood sample is received by the analyst, the analyst:
    (a) makes sure the laboratory number on the container corresponds with the laboratory number on this report;
    (b) makes sure the analysis is conducted on the sample which accompanied this report at the time the report was received by the analyst;
    (c) conducts a chemical analysis of the sample and enters the results on this report;
    (d) retains the sample container and the raw data from the analysis;
    (e) completes and signs the Certificate of Analyst, noting any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis;
    (f) delivers this report to the reviewer.
  4. The reviewer checks the calculations of the analysis, examines this report, signs the Certificate of Reviewer, and delivers the report to a laboratory employee for distribution.
  5. An employee of the agency mails a copy of this report to the donor at the address shown on this report, by depositing it in an outgoing mail container which is maintained in the usual and ordinary course of business of the laboratory. The employee signs the certificate of mailing to the donor, and mails the original of this report to the submitting law enforcement agency.
  6. The biological sample will be retained by the testing laboratory for a period of at least six (6) months pursuant to regulations of the scientific laboratory division.

Federal Rules of Evidence