Supreme Court Watch: Oral Argument On Bullcoming Confrontation Clause Case

Supreme Court hears argument concerning the introduction of statements of a non-testifying forensic analyst through another analyst at trial under the Confrontation Clause; case involves possible extension and clarification of Melendez-Diaz v. Massachusetts and may impact whether an expert can testify about testimonial statements of non-testifying witnesses or whether the presentation of any testimonial statement must be supported by the testimony of the witness making the statement, in Bullcoming v. New Mexico (No. 09-10876)

Last week, on Wednesday, March 2, 2011, the Supreme Court heard oral argument concerning an important case involving the admission of forensic analyst testimony under the Confrontation Clause. See Bullcoming v. New Mexico Transcript; Listen to the oral argument. While the case involves forensic analyst testimony on the blood alcohol content level, the case potentially has a broad reach affecting other forensic analyst testimony as well as expert testimony that is based on testimonial statements of non-testifying witnesses. In Bullcoming v. New Mexico (No. 09-10876), the question presented is:

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 he he statements.

A summary of some of the areas of focus during the oral argument follows:

Machine-Generated Statements

One key issue during the argument concerned the introduction of machine-generated data or raw data under the Confrontation Clause and testimony interpreting the data. In United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007), the Fourth Circuit noted that “[t]he raw data generated by the diagnostic machines are the ‘statements’ of the machines themselves, not their operators.” Washington was cited by the New Mexico Supreme Court in its decision and in the briefs and referenced at argument. See, e.g., New Mexico v. Bullcoming, 147 N.M. 487, 226 P.3d 1, 4 (Feb. 12, 2010).

As Justice Samuel Alito, Jr. framed the issue: “The purpose of the Confrontation Clause is to allow cross-examination. How are you going to cross-examine the machine?” Transcript, at 24:4-6. The forensic analyst report (Exhibit 1) indicated a .21 blood alcohol content level. See also Transcript, at 15:19-20. In response to questions from Justice Ruth Bader Ginsburg and Justice Alito, petitioner’s counsel, Jeffrey L. Fisher, Associate Professor of Law at Stanford Law School and Co-Director of the Supreme Court Litigation Clinic, agreed that the mere printout of data was not testimonial. Transcript, at 18-19, 23:22-23 (“If it said nothing more than the .21 coming out of the machine, I think [it is] probably not” a Confrontation Clause violation.). However, he argued that “the question arises in the lab context whether a .21 or anything else that comes out of the machine has enough human influence that it ought to be treated as the -- as the person's statement.” Transcript, at 24:17-20. He contended that because the testifying analyst included testimonial statements of the non-testifying analyst, more than raw data was presented in this case “because the State proved a lot more than .21 by [non-testifying analyst] Mr. Caylor's lab report.” Transcript, at 24-25; see also id. 18:19-23 (“If a printout comes out of a machine that also says at the top blood sample was Donald Bullcoming's, here's the test that was run, et cetera, those may well be testimonial statements that the analyst triggered the machine to spit out.”).

Justice Sonia Sotomayor also suggested that the lab report included certifications that certain procedures and legal requirements were met so the report was more than “copying a number” from the lab results. Transcript, at 33-34. Additionally, petitioner’s counsel noted that a Confrontation violation may result, under case law, where the expert is “a mere conduit for introducing the out-of-court testimonial statement”. Transcript, at 20:11-14.

The Types Of Testimonial Statements

The Justices queried which portions of the forensic analysis may constitute testimonial statements. Petitioner’s counsel agreed with Justice Alito that some matters the state was attempting to prove did not violate the Confrontation Clause and only presented matters of state law. These included:

The first was that the sample that was tested was the sample that was taken from the defendant. Second was that the standard procedures were followed in this case, and the third was that the result was .21.
Transcript, 20-21. However, petitioner’s counsel contended that the Confrontation Clause violations resulted by the introduction of the report of the non-testifying analyst and the forensic analyst testimony about the results of the non-testifying analyst. Transcript, at 23:7-16.

As Justice Sotomayor noted in questioning, “there are different types of hearsay involved here or different types of statements. There's the report itself, which was Exhibit 1 that was introduced, and it has certain certifications by the analyst, that he followed certain procedures….” Transcript, at 15:5-10; id. at 15-16.

Purpose Record Was Created

Another related question was whether the lab report was prepared for trial or some other public purpose. See, e.g., Transcript, at 33:7-8 (“And that [lab report] was prepared just for fun, not for use in trial?”) (Scalia, J.). In arguing that the report was similar to a public record, respondent’s counsel, New Mexico Attorney General Gary K. King, tried to suggest that a birth certificate contains certifications as a public record and that the lab report was a comparable public record. However, Justice Sotomayor distinguished both certifications:

Isn't the difference between those two documents is that one was prepared primarily for the purposes -- this lab report, for prosecution purposes, and the birth certificate is not prepared for that? It's prepared to mark the birth of a person, then it's used for many other purposes besides trial; is that correct?
Transcript, at 34:16-22. In response to Justice Alito, respondent’s counsel noted that the lab analysts were civil service employees of the New Mexico Department of Health.

Justice Ginsburg also noted that the report was “created to provide evidence for use in a criminal prosecution.” Transcript, at 40:1-2. Respondent’s counsel stated that the same lab form is used for other public purposes and state law allows the defendant to request a second report at state expense by using the same form. Transcript, at 40:4-11.

In response to questions of Chief Justice John G. Roberts, Jr., respondent’s counsel noted that the lab form indicates that it was submitted by a police officer. Transcript, at 40-41. In rebuttal, petitioner’s counsel noted that the submission form included the “arresting officer identification, and the officer writes, check for blood alcohol concentration” which was “the order to the lab.” Transcript, at 58:11-14. Justice Antonin Scalia distinguished that the form was not prepared under oath. Transcript, at 58:23-24. Petitioner’s counsel then suggested this made the certification “worse, as in Crawford [v. Washington, 541 U.S. 36 (2004)] this Court said that it would be implausible that trial by affidavit would be prohibited but trial by unsworn affidavit would be okay.” Transcript, at 59:2-5.

Constitutional Limits To Expert Testimony

Another noted theme concerned how far an expert could testify about the lab analysis based on the non-testifying analyst without violating the Confrontation Clause. In response to a question from Justice Sotomayor, petitioner’s counsel agreed that an expert could read the “raw data” (such as the blood alcohol level) and testify about that amount without violating the Confrontation Clause. Transcript, at 16-17; id. 17:19-23 (“I think an expert could take the stand and say, I'm looking at a graph, and here's what the graph shows me.”). Additionally, the expert could consider testimonial statements without repeating those statements at trial. See Transcript, at 19:15-17 (“I think an expert can look at anything. The only question is what's introduced into evidence.”). As petitioner’s counsel summarized the petitioner’s position in the case, “if the State wants to introduce a witness's testimonial statements, it needs to bring that witness to court.” Transcript, at 10:1-3.

In exploring the permissible boundary of expert testimony, Chief Justice Roberts asked:

[W]hat if you had two people doing this procedure? They're sitting in, you know, chairs right next to the other. The one, you know, takes the blood samples from the vials, puts them in another vial, and puts the aluminum stuff on and crimps it. The other one then takes the vials and puts them in the machine and runs it. Do you have to have both of them testify?
Transcript, at 6:2-9. Justice Anthony M. Kennedy also explored this hypothetical. Transcript, at 8-9. Petitioner’s counsel responded, “The question is whose statements the State wants to introduce. Here, the State wanted to introduce [non-testifying forensic analyst] Mr. Caylor's statements.” Transcript, at 8:1-4; id. at 9:1-2 (“Now, again, the only question is whose statements the State wants to introduce.”). Justice Scalia noted, “The State takes its chances, right? I mean, as to how much it has to bring in, in order to persuade the jury?” Transcript, at 9:8-10.

Witness Memory Problems

Justice Ginsburg asked about the “practical situation” in which a forensic analyst who performs numerous tests may not recall the details of any specific test in court. Transcript, at 28:7-15. Petitioner’s counsel responded that through testimony, the analyst may recall if there were problems on the test. The jury should have a chance to evaluate credibility and competence. Transcript, at 28-29. Additionally, he added that the Confrontation Clause is satisfied by the witness testimony even if the witness cannot recall the events based on a line of cases including California v. Green, 399 US 149 (1970), Delaware v. Fensterer, 474 U.S. 15 (1985) (per curiam), and United States v. Owens, 484 U.S. 554 (1988). Transcript, at 30:3-12.

Justice Scalia did not see a problem if the forensic analyst could not recall the details of the particular forensic test. He noted that “the prosecution can bring out his high qualifications” and that he followed his normal procedure in the examination. See Transcript, at 29:17-22; see also id. at 43-44 (Scalia, J.).

Defense Subpoena Of Non-Testifying Witness

Justice Alito asked whether the petitioner could have subpoenaed the non-testifying witness: “It's just a question of who has to take the step, right?” Transcript, at 27:11-12. Petitioner’s counsel noted that while the petitioner could have issued a subpoena for the testimony, under Melendez-Diaz, the Confrontation Clause was violated. Transcript, at 27.

Melendez-Diaz Footnote One

Part of the argument involved the application of footnote one in Melendez-Diaz. Footnote one provides in part:

It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live. Additionally, documents prepared in the regular course of equipment maintenance may well qualify as nontestimonial records.
Melendez-Diaz v. Massachusetts, 557 U.S. _, n.1, 129 S. Ct. 2527 (2009). Petitioner’s counsel construed footnote one to mean that “when the State chooses whose testimony it wants to introduce, the defendant has the right to insist that that be done live.” Transcript, at 11:10-14.

Justice Scalia noted that Melendez-Diaz left room for the state to adopt chain of custody or notice and demand rules "that requires the defendant to assert that challenge or his intention to make that challenge, or his intention to make that challenge, prior to the trial so that the State will know whether it has to introduce any live testimony.” Transcript, at 11:16-23. Justice Kennedy noted that chain of custody testimony may include testimonial statements, such as identifying the blood of the defendant. Transcript, at 12:4-8.

A related issue concerned the burden on producing the witnesses. Respondent's counsel noted that in this case the forensic analyst drove three hours from his office to testify, resulting in a six hour trip for possibly ten minutes of testimony, and being out of the lab for nearly one day. Transcript, at 48-49. Justice Ginsburg wondered if video-conferencing could be used. Transcript, at 4:7-12. Petitioner's counsel noted that "the default rule under the Confrontation Clause is in presence, in the courtroom." Transcript, 4:13-15.

Justice Kennedy was not persuaded by petitioner’s counsel’s suggestion that the insistence on live testimony, as a practical matter, would not occur frequently:

Well, but if you want to tell us, don't worry, it won't happen, I think that's an unacceptable argument. You're saying the defense has certain rights, and we have to presume there is a defense attorney who's going to afford his client every right the Constitution has. So the fact that we're not supposed to worry because it won't happen very often is (a) it seems to me, an unlikely hypothetical; and (b) it seems to me, irrelevant to your argument.
Transcript, at 13-14. Petitioner’s counsel responded that the burden was a manageable one. Transcript, at 14:12-16 (“[I]n the States that have followed the rule we advocate today, long before Crawford or Melendez-Diaz, it simply is a manageable burden. I'm not saying it's no burden. But it is a thoroughly manageable.”).

Unavailable Lab Analyst

The record was unclear why the original forensic analyst was on unpaid leave at the time of trial and therefore unavailable. In response to Justice Scalia, respondent’s counsel noted it was unknown why the analyst was on leave without pay. Justice Scalia suggested these issues could have been explored if confrontation had been available:

Does the defense know why it was leave without pay? Could the defense have found out in cross-examination that the reason he was leave without pay because he was -- had shown himself to be incompetent, and they were in the process of firing him? I don't know whether that's true, but wouldn't that be important to the defense? …. And didn't -- and didn't the prosecution intentionally set it up this way so that this person would not have to testify, so that he could not be cross-examined? Isn't that why they sent the substitute to testify? … I don't know what the facts are, but boy, it smells bad to me. It really does. And even if that was not the case, the mere possibility that it could have been the case shows why you should have to bring this person in if you want to introduce his testimony.
Transcript, at 37-38. However, respondent’s counsel suggested the reason the analyst was on unpaid leave did not impact the issue of whether the statement was testimonial. He added that it was speculative to ponder the reason and “it might also be that” the analyst “was on unpaid leave because he had run out of his regular leave time.” Transcript, at 39:1-4. Justice Scalia stated, "I agree that whether it's testimonial does not depend upon whether there's skullduggery or not, but the possibility of skullduggery, even in machine -- machine situations such as this, is a good reason for saying this is testimonial." Transcript, at 39"5-10.

Michigan v. Bryant

Before the argument, one question was whether the opinion in Michigan v. Bryant, 562 U.S. __ (Feb. 28, 2011), decided two days before the oral argument, would have an impact in the Bullcoming case. In Bryant, the court clarified that determining the “primary purpose” of testimonial statements given to law enforcement officers during an ongoing emergency is measured under an objective standard. In briefing, the Respondent had explicitly asked the Court “to re-examine the primary purpose definition of testimonial and replace it with a definition that more closely adheres to the purposes of the Confrontation Clause.” Brief of the Respondent, at 41-42.

The first reference to Michigan v. Bryant came from respondent’s counsel, who referred to the ruling in the beginning of his argument . Transcript, at 31:4-8. However, Justice Scalia found Bryant readily distinguishable since no interrogation was involved in Bullcoming. Transcript, at 42-43 (“If it were an interrogation, the factors mentioned in Michigan v. Bryant would be relevant, presumably, but since this wasn't an interrogation, I don't see how that has any -- any relevance whatever.”).

Justice Elena Kagan

From the oral argument, it remains unclear what issues were paramount to Justice Elena Kagan’s along with her views or analysis under the Confrontation Clause. She started to ask a question during Chief Justice Roberts’ questioning, but did not complete it. See Transcript, at 40:16 (“Well, what are the other -- ”). It remains to be seen in the event of a divided ruling, how would her vote may make a difference in the case.

Harmless Error Beyond A Reasonable Doubt

In the event the Court concludes testimonial statements were admitted in violation of the Confrontation Clause, Respondent suggested in its brief that any constitutional error would be harmless error beyond a reasonable doubt. Brief of the Respondent, at 59-60. During the argument, Justice Alito asked if in fact the petitioner had admitted on the stand that he was drunk. Petitioner’s counsel responded that the “lab report is still important” because he was convicted of state law aggravated DUI which required proof beyond a .16 blood alcohol count which the lab report established. Transcript, at 25-26.


A decision is expected before the end of the Term, most likely by July 2011. In the meantime, for copies of the briefs filed in the consolidated cases and a summary of the arguments presented before the argument, see the Bullcoming v. New Mexico Resource Page, including its (Introduction and Overview) (Key Briefs and Materials). See also prior blog posts on the Bullcoming case.

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