Tuesday, October 18, 2011

New Mexico Supreme Court Proposes Rules on Lab Reports

The New Mexico Supreme Court is soliciting comments on "three representative proposals that have been suggested . . . to address the admission of state laboratory forensic analyses in light of Bullcoming." [1] The state court is referring to the U.S. Supreme Court's somewhat unenlightening opinion in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), discussed here some months ago. Inasmuch the the rules are a response to a Confrontation Clause decision that applies only in criminal cases, I shall assume that these rules also would apply solely in criminal cases.

The first proposal covers all "forensic scientific evidence including blood and breath alcohol test reports, controlled substance chemical analysis reports." It orders the parties to confer about stipulating to a waiver of the defendant's right to be presented with a laboratory analyst to cross-examine on the laboratory's findings and of the state's right to present a live witness along with the reports. [1]

Of course, the parties can initiate such such discussions now, and they need not stipulate to anything anyway. The proposed rule states that "The report or print-out ... shall not be admitted at trial without the testimony of necessary witnesses unless the defendant stipulates in writing," but that adds nothing of substance to the status quo (or to the rest of the rule).

But what happens if one or more of the parties do not event want to talk about a stipulation. The rule says that "[i]f either party cannot obtain the opposition’s position regarding a proposed stipulated order, that party may file a motion requesting a hearing to determine the opposition’s position regarding the need for testimony ... ." Maybe the judge can induce the parties to take an irrevocable position well before the trial, as the rule seems to contemplate. This might help the lab schedule its staff time, but is all this judicial rule-making worth the effort to achieve this convenience?

Alternative Rule 2 abolishes the hearsay rule as applied to "a written report of the conduct and results of a chemical analysis of breath or blood for determining blood alcohol concentration." Of course, many jurisdictions have statutes to this effect, and others apply the business records exception to reach the same result. The (new?) hearsay exception makes no difference in New Mexico criminal cases as long as the U.S. Supreme Court adheres to the interpretation of the Confrontation Clause articulated in Crawford v. Washington, 541 U.S. 36 (2004).

Alternative 3 requires the prosecution to serve on the defendant "[a] copy of a report of the methods and findings of any examination conducted by an employee of any governmental laboratory ... no later than ninety (90) days before trial" and to give notice to the defense at the same time if it intends to introduce the report into evidence. If New Mexico prosecutors do not already provide timely disclosure of reports or if this provision requires that more complete reports be prepared than is currently the practice, it would be a significant improvement.

Yet, the rule also imposes a burden on the defense to object in writing before trial. In this regard, it reads as follows: "If the defendant does not file a written objection with the court to the use of the laboratory report and certificate within the time allowed by this subparagraph, then the report and certificate are admissible in evidence."

The thinking seems to be that the defense ordinarily should not have to object before trial. However, if the prosecution affirmatively notifies defense counsel that it does not plan to present a necessary witness, then the defense should be forced to make a pretrial demand for confrontation (or lose that right). The rule would require the defendant to give notice at least 30 days before trial. [3] A dictum in Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), approves of such notice-and-demand rules. [4]

Interestingly, none of the proposed rules go so far as to place the burden on the defendant to give notice in all cases in which it learns that a laboratory report exists. The state rules committee's commentary to the first alternative rule states: "This rule applies in lieu of a notice and demand rule, which the committee rejected, and is meant to ensure that the waiver is not made by accident or lack of knowledge. The defendant may waive this right by stipulated order, but the waiver shall be made willingly, knowingly, and intelligently."


1. Myrna Raeder initiated a discussion of these rules on Roger Park's discussion list for law professors. The rules are available at http://nmsupremecourt.nmcourts.gov/rules/pdfs/proposed_alt._rules_1,_2,_3.pdf

2. The proposed rule states that "[t]he parties shall confer and either party may file a stipulated order to admit a report or print-out of results ... or to limit the witnesses required to appear at trial."

3. This proposed rule include the statement that "[i]f the defendant does not file a written objection with the court to the use of the laboratory report and certificate within the time allowed by this subparagraph, then the report and certificate are admissible in evidence ... ."

4. See http://federalevidence.com/node/1228; http://www.scotusblog.com/case-files/cases/briscoe-v-virginia-2/.

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