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Sixth Amendment Right To Confrontation And Forensic Reports


United States Supreme Court, Bullcoming v. New Mexico 2011 WL 2472799                         Decided June 23, 2011

Issue: whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification – made for the purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.

Holding: The U.S. Supreme Court that the surrogate testimony did not meet the constitution requirement.  The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.  As a rule, if an out of court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.

Facts: Defendant, Bullcoming, was arrested on charges of driving while intoxicated.  The principal evidence against Bullcoming was  forensic laboratory report  certifying that Bullcoming’s blood alcohol concentration was well above the threshold for aggravated DWI.  at trial, the prosecution did not call as a witness the analyst who signed the certification   Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample.  Defense counsel objected and was overruled by the trial court.

Mr. Bullcoming was convicted at trial and appealed.  The case eventually found its way to New Mexico’s Supreme Court, which held that the admission of the report did not violate the Confrontation Clause for two reasons: First, the analyst that performed the tests was a mere scrivener, who simply transcribed the results generated by the gas chromatograph machine.  and second, the analyst that did testify at trial, although not a participant in the actual testing of Bullcoming’s blood, was an expert witness with respect to the gas chromatograph machine.

Legal Analysis:

The Sixth Amendment’s Confrontation Clause confers upon the accused “[i]n all criminal prosecutions, … the right … to be confronted with the witnesses against him.

The U.S. Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36 held that the Confrontation Clause permitted admission of testimonial statements of witnesses absent from trial only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross examine.  For testimonial evidence to be admissible, the Sixth Amendment demands what the common law reqired: unavailability of the witness and a prior opportunity for cross examination.  The Supreme Court then decided the case of Melendez-Diaz v. Massachusetts, 557 U.S. ___, where it declined to create a forensic evidence exception to Crawford holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as testimonial for Confrontation Clause purposes.   Absent stipulation, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.

The Supreme Court also addressed the argument that the non-testifying analyst was a mere scrivener that recorded the results of the test and the real accuser was the machine.  However, the Court found that the certification introduced into evidence contained more than a machine generated number.  It contained statements relating to the seal on the packaging of the blood, that he adhered to precise protocol for the tests, that no circumstance or condition affected the integrity of the sample.  The Supreme Court held that this was meet for cross examination.

The U.S. Supreme Court settled in Crawford that the obvious reliability of a testimonial statement does not dispense with the Confrontation Clause.  The Clause commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing the evidence in the crucible of cross examination.  Accordingly, the analysts who write reports that the prosecution introduces must be available for confrontation even if they possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa.

The prosecution argued that the statements were by a scientist and were not adversarial or inquisitorial but were simply observations of an independent scientist made according to a non adversarial public duty.  The Supreme Court rejected this argument and stated that Melendez-Diaz clarified that a document created solely for an evidentiary purpose made in aid of a police investigation ranks as testimonial  (a forensic report available for use at trial is a testimonial statement and the certifying analyst is a witness for purposes of the Sixth Amendment).

The Court also found that the fact that the statements here were not sworn statements is not dispositive of whether they are testimonial statements for Sixth Amendment purposes because this would make the right to confrontation easily erasable.