New US Supreme Court case gives Defendants the right to confront blood-alcohol analysts that certify reports

On June 23, 2011, the Supreme Court of the United States issued its decision in Bullcoming v. New Mexico, No. 09-10876. In Bullcoming, the Supreme Court held that a defendant has the right to confront the analyst who certified a blood-alcohol analysis report, and that such a report was testimonial within the meaning of the Confrontation Clause.

Bullcoming was arrested for aggravated driving under the influence of intoxicating liquor. The principal evidence against Bullcoming was a 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.

While Bullcoming's appeal was pending before the New Mexico Supreme Court, the SCOTUS decided Melendez–Diaz. In that case, the Massachusetts courts had admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. Those affidavits, the Court held, were ‘testimonial,’ rendering the affiants ‘witnesses' subject to the defendant's right of confrontation under the Sixth Amendment.

Despite Melendez-Diaz, the New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst's in-court testimony. Instead, New Mexico's high court held, live testimony of another analyst satisfied the constitutional requirements.

The SCOTUS, by a 5-4 vote, reversed. In writing for the majority, Justice Ginsburg included the following points:

• The case of Crawford v. Washington held that fidelity to the Confrontation Clause permitted admission of “[t]estimonial 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.” Melendez–Diaz, relying on Crawford's rationale, refused to create a “forensic evidence” exception to this rule.

• The SCOTUS settled in Crawford that the “obvious reliability” of a testimonial statement does not dispense with the Confrontation Clause. “Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’”

• In short, when the State elected to introduce [the analyst’s] certification, [the analyst] became a witness Bullcoming had the right to confront.