Posted by: DawnMarie White (DMWatLaw) | October 21, 2011

Bullcoming v. New Mexico – A Discussion

Yesterday, I attended the Indiana Attorney General’s Criminal Justice Summit. The summit started with Gary King, Attorney General of New Mexico, discussing the recent case of Bullcoming v. New Mexico he argued in front of the United States Supreme Court. Richard Friedman, Alene and Allan F. Smith Professor of Law of University of Michigan Law School, presented An Academic Analysis: The “Testimonial” Approach. Here’s what I learned from the training.

In Bullcoming, a lab tech was unable to attend court as he was suspended without pay (Mr. King wouldn’t share why but I’m not certain if he knew.). In his place, his supervisor went to court and testified regarding the test the lab tech ran based on a report which included a certification/affidavit section. The defense objected as they did not have a chance to cross examine the lab tech. This violation of the 6th amendment right to confront accusers went before the United States Supreme Court.

Attorney General King knew from Melendez-Dias that a form could not be a substitute for testimony. However, the prosecutors attempted to present a witness (the supervisor) to testify about the contents of a form. Attorney General King had several arguments as to why this should not be ruled a violation to the 6th amendment Confrontation Clause. First, Attorney General King argued that a number from a machine that would be scientific evidence should not be dependent upon the observer. He did not argue this to the Supreme Court. Professor Friedman argued that witnesses testify about what they observed. This would include observing a number on a machine.

Second, Attorney General King argued that the form would meet the business/public records exception to hearsay. The Supreme Court found that if the substitute witness had personal knowledge of the test, the witness would be able to testify regarding that knowledge. However, in Bullcoming, the witness only had personal knowledge of the form that the lab tech completed. Professor Friedman pointed out that the hearsay rule is independent of the Confrontation Clause saying that even if the form met an exception for hearsay it is still inadmissible since the Defendant could not cross-examine the form.

Attorney General King presented a best evidence argument which I am not sure if he made before the Supreme Court. He says that the report is the best evidence as a lab tech is likely to remember the test better at the moment when the lab tech makes the report and not months later at a trial. However, the fact that the Defendant can not ask the report if the test was completed correctly or the lab tech’s ability to conduct the test properly (etc.) is the real issue here.

Attorney General King made a policy argument. He contends that witnesses that should fall under the Confrontation Clause are only those witnesses where a big police presence is involved in generating the evidence. Here, the Health Lab personnel don’t work for the police and Attorney General King maintains that they are independent, as the Health Lab conducts work for other organizations (mostly state organizations).

In addition, Attorney General King states that the result is neutral because it is given to the defense at the same time as it is given to the prosecution. He admits that one hurdle that would need to be overcome here is that the form would need to be created for a reason other than court.

This argument stems from the Supreme Court’s decision in Michigan v. Bryant. In Bryant, the Court held that if the police were obtaining the evidence (a statement from the victim here) for a public safety or law enforcement issue, it is an exception to the 6th amendment Confrontation Clause. In Bryant, the argument was that the police were asking the victim who shot him in order to make sure the shooter was not endangering the public. This test is very manipulative according to Professor Friedman. He anticipates every police officer now having a grave concern for the public in every case.

The Supreme Court’s decision in Bullcoming upheld the Defendant’s right to confront his/her accusers. The Bullcoming Court held that a substitute witness is not allowed under the 6th amendment Confrontation Clause unless the witness has a personal knowledge of the test. The Court hypothesized that raw data of a machine being analyzed in the Court by an expert witness may be okay as one can not cross-examine a machine. However, in this case, the expert witness would have to be qualified as an expert and interpret the data from the witness box. The expert would also be subject to cross-examination.

*Note: I drafted this very quickly so that a public defender would have my notes for a presentation that she is preparing on Bullcoming. I will likely edit this and add citations shortly. I may also add a few more of my impressions.



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