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Impressions of the Bullcoming argument

By Richard D. Friedman

I attended Wednesday?s argument in Bullcoming v. New Mexico. Recall the facts in brief: The analyst who performed a test on Bullcoming?s blood was on unpaid leave at the time of trial. Instead of presenting his live testimony at trial, the state presented his report through a supervisor from the lab who had not observed performance of the test. Here are some impressions of the argument.

First, the reports of the death of the Confrontation Clause in light of Michigan v. Bryant appear to be greatly exaggerated. The New Mexico Attorney General, Gary King, cited Bryant in the very first sentence of his argument, and referred to it a couple of times later, though he actually tried to distance himself from the case by saying that the purpose test of Bryant did not apply absent an interrogation. No member of the Court seemed to be interested in any possible ramifications of Bryant for this case. Nor did any member of the Court suggest that the report ought to be admissible because it supported an expert opinion offered by the testifying supervisor, as countenanced by Fed. R. Evid. 703. Indeed, King emphasized the lack of human analysis in the report. Nor was there any suggestion that I picked up that any justices were considering overruling Melendez-Diaz.

Second, some of the justices continue to be troubled by the multiple-witness problem. This came up several times in various contexts. It is difficult to know whether they were persuaded by the fact that many states have long followed the rule that if a lab analyst?s report is admitted that analyst must testify in court, absent stipulation, and these states have not faced intolerable difficulties. But I think that enough empirical evidence has now been gathered demonstrating this point that it will be difficult for them to write an opinion predicting disaster if Bullcoming wins.

Third, much of the questioning focused on factual settings not quite like the one presented by the case. The nature of the questioning appeared to be an attempt to determine how states might cope efficiently with a ruling for Bullcoming. In the actual case, the prosecution introduced a report by the absent analyst, which is why this should be, as Jeff Fisher, arguing for Bullcoming, asserted at the outset, an easy case; an exchange between Jeff and Justice Alito clarified that the report asserted the identity of the sample tested, the lack of tampering, the procedures used, and the result. But what if the state had not introduced the report? Some of the justices were interested in the possibility that a witness could testify to a lab?s general procedures, from which the jury could infer that the procedures were followed in the case at hand. Jeff agreed that the Confrontation Clause would not pose an obstacle to doing that. But the problem would still remain of proving the results in the particular case. If, for example, one analyst enters the defendant?s name in a machine and the machine performs the test and spits out a report with the defendant?s name on it, there would still be a testimonial assertion by that analyst that this particular report is the result of a test performed on that defendant?s blood; I don?t believe a second analyst should be allowed to testify, in the absence of the first, that the practice of the lab is to enter accurately the name of the source of the blood in the machine and then perform the test.

But in any event, as I?ve said, that case is not the one before the Court, in which the prosecution clearly introduced a full report by the absent analyst. One possibility is that the Court will simply resolve the case before it, saying that this was a violation, and leave to future cases the development of the bounds of acceptable procedures.

Finally, Justice Kagan was essentially silent. She apparently began to ask one question but was interrupted and did not persist. So that makes any prediction even more speculative, and I won?t speculate.

Full post as published by The Confrontation Blog on March 03, 2011 (boomark / email).