Thursday, June 30, 2011

Laboratory Reports and the Confrontation Clause: From Crawford through Bullcoming

This week has seen a lot of activity on the Supreme Court level regarding the application of the Confrontation Clause of the Sixth Amendment to laboratory reports. The Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." It applies to both federal and, through the Due Process Clause of the Fourteenth Amendment, state trials.

But what does it mean? When can the prosecution present statements as evidence against a criminal defendant made out of court by someone not produced as a witness in the trial (or some earlier proceeding) at which the defendant can “confront” this witness?

For many years, the Court applied a reliability test to such statements. If the statements seemed reliable for some reason or other—the actual test proved rather weak—the prosecution could use them without presenting the person who said them for cross-examination. In Crawford v. Washington, 541 U.S. 36 (2004), however, the Court radically revised its view of the Amendment. Writing that “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty,” a majority reinterpreted the Clause to mean that the prosecution cannot introduce “testimonial” statements accusing the defendant without producing the author of the statements for cross examination. Crawford marked the Court’s acceptance of an interpretation of the Clause championed by Justice Scalia in various concurring opinions.

But Justice Scalia’s opinion for the Court in Crawford offered no single definition of “testimonial.” “Typically,” the Court wrote, testimony is a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Crawford then gave a series, in increasing generality, of “formulations of this core class of ‘testimonial’ statements.” All applied to the statements at issue in Crawford itself—a wife’s answers to police questions undermining her husband’s claim that he stabbed another man in self-defense.

Not surprisingly, the Court has been fleshing out the meaning of the pivotal term “testimonial” in one succeeding case after another. In Davis v. Washington, 547 U.S. 813 (2006), the Court held that a woman’s call to a 911 operator about an ongoing “domestic disturbance with her former boyfriend” was not testimonial. In contrast, in the companion case of Hammon v. Indiana, the Court held that another woman’s answers to police questioning—given immediately after the officers came to the couple’s home and observed evidence of recent violence but found “no emergency in progress”—were testimonial.

Two later cases address statements from laboratories undertaking examinations of evidence in criminal investigations. Although it generated a 5-4 split in the Court, Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), should have been an easy case. The prosecution introduced into evidence three sworn “certificates of analysis” from the Massachusetts Department of Public Health. These affidavits contained “only the bare bones statement that '[t]he substance was found to contain: Cocaine.' At the time of trial, petitioner did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” The Court determined that because the “analysts' statements [were] prepared specifically for use at petitioner's trial, [they] were testimony against petitioner, and the analysts were subject to confrontation under the Sixth Amendment.” The sworn statements were far more solemn than the wife’s statements to the police in Hammon, and unlike the victim’s statements in Davis about her former boyfriend “here jumpin’ on me again,” their sole purpose was to provide police with facts for a possible prosecution.

Bullcoming v. New Mexico, No. 09–10876 (U.S. June 23, 2011), involved a laboratory report “certifying that [Donald] Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI.” This time, the state provided more information about the testing, and it did not rely solely on the paper report of the results of the gas chromatography. As the Court described it,
the report presented the “certificate of analyst,” . . . completed and signed by Curtis Caylor, the SLD [New Mexico Department of Health, Scientific Laboratory Division] forensic analyst assigned to test Bullcoming’s blood sample. . . . Caylor recorded that the BAC in Bullcoming’s sample was 0.21 grams per hundred milliliters . . . . Caylor also affirmed that“[t]he seal of th[e] sample was received intact and broken in the laboratory,” that “the statements in [the analyst’s block of the report] are correct,” and that he had “followed the procedures set out on the reverse of th[e] report.” . . . Those “procedures” instructed analysts, inter alia, to “retai[n] the sample container and the raw data from the analysis,” and to “not[e] any circumstance or condition which might affect the integrity of the sample or otherwise affect the validity of the analysis.” . . . Finally, in a block headed “certificate of reviewer,” the SLD examiner who reviewed Caylor’s analysis certified that Caylor was qualified to conduct the BAC test, and that the “established procedure” for handling and analyzing Bullcoming’s sample “ha[d] been followed.”
The prosecution introduced this report, over objections, as a business record (a dubious application of this exception to the hearsay rule), but “[o]n the day of trial, the State announced that it would not be calling SLD analyst Curtis Caylor as a witness because he had ‘very recently [been] put on unpaid leave’ for a reason not revealed.” Instead, it put a “surrogate” witness on the stand—“Gerasimos Razatos, an SLD scientist who had neither observed nor reviewed Caylor’s analysis,” but who was happy to testify to “the operation of the . . . machine, the results of [Bullcoming’s] BAC test, and the SLD’s established laboratory procedures.”

The Supreme Court did not buy it. A forensic laboratory’s report prepared for the police in the course of a criminal investigation, it reiterated, was testimonial. The conclusion, the Court insisted, was “inescapable.” As in Melendez-Diaz, the report’s assertions were “‘incontrovertibly . . . affirmation[s] made for the purpose of establishing or proving some fact” in a criminal proceeding.” The state’s claim that “they were simply observations of an ‘independent scientis[t]’ made ‘according to a non-adversarial public duty,’ . . . fares no better here than it did in Melendez-Diaz” because “[a] document created solely for an ‘evidentiary purpose’ . . . made in aid of a police investigation, ranks as testimonial.” That the reporting analyst did not sign a notarized affidavit was of no moment. The witnesses in Crawford and Hammond did not make sworn statements either. The analyst who was placed on unpaid leave after signing his report knew perfectly well that he was contributing to the state’s case against its suspect. As such, he constituted an accuser within the meaning of the Sixth Amendment.

Likewise, the effort to transmogrify a different analyst into the accuser failed. First, “surrogate testimony” about general procedures and instrumentation “could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. . . . Nor did the State assert that Razatos had any ‘independent opinion’ concerning Bullcoming’s BAC.” Second, and “[m]ore fundamentally,” the Sixth Amendment “does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination.”

Although the case might seem to be a relatively straightforward application of Crawford and Melendez Diaz, only five Justices subscribed to Justice Ginsburg’s majority. The remaining four, in a opinion written by Justice Kennedy, deemed the Confrontation Clause satisfied by surrogate testimony:
Whether or not one agrees with the reasoning and the result in Melendez-Diaz, the Court today takes the new and serious misstep of extending that holding to instances like this one. Here a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation.
Moreover, a final part of Justice Ginsburg’s opinion failed to gain even the narrow majority of the Court that subscribed to the rest of the text of the opinion. This part of the opinion, joined only by Justice Scalia, responded to demands for a forensic-science exception to the requirement of producing “the analysts who write reports that the prosecution introduces . . . even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa’” by observing that retesting is possible and that “the sky has not fallen” in jurisdictions that routinely produce the necessary analysts as witnesses.

In sum, it appears that many Justices are looking for ways to allow prosecutors to introduce laboratory reports or the information in them into evidence without ever producing the witnesses who did the analyses and wrote the reports. Justice Sotomayor made this plain in a concurring opinion emphasizing the limited scope of the case. She insisted that
First, this is not a case in which the State suggested an alternate purpose, much less an alternate primary purpose, for the BAC report. For example, the State has not claimed that the report was necessary to provide Bullcoming with medical treatment. . . .
Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor’s conduct of the testing. . . It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.
Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert’s opinion based on the facts and data to be admitted). As the Court notes, . . . the State does not assert that Razatos offered an independent, expert opinion about Bullcoming’s blood alcohol concentration. . . . Here the State offered the BAC report, including Caylor’s testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.
Finally, this is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph. The State here introduced Caylor’s statements, which included his transcription of a blood alcohol concentration, apparently copied from a gas chromatograph printout, along with other statements about the procedures used in handling the blood sample. . . . Thus, we do not decide whether. . . a State could introduce (assuming an adequate chain of custody foundation) raw data generated by a machine in conjunction with the testimony of an expert witness.
Although Bullcoming “does not present . . . any of these factual scenarios,” five days after issuing its ruling, the Supreme Court granted a writ of certiorari to review a case that falls into her third category, at least in part. I shall describe this newest Confrontation Clause case, Williams v. Illinois when I get another spare moment. Already, there is some confusion about the issue in the case, as can be seen by comparing the description of the issue on the website of the American Academy of Forensic Sciences with the Supreme Court’s specification of the issue.


Bullcoming v. New Mexico, No. 09–10876 (U.S. June 23, 2011)

Bullcoming v. New Mexico, Supreme Court of the United States (SCOTUS) Blog (contains links to briefs and other materials)

David H. Kaye, David E. Bernstein & Jennifer L. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence (2d ed. 2011)

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