Crime Labs and the Confrontation Clause

Over at SCOTUSblog, Lyle Denniston has published a detailed summary and analysis of yesterday’s important Sixth Amendment ruling from the Supreme Court in Bullcoming v. New Mexico, which centered on a criminal defendant’s right “to be confronted with the witnesses against him.” As Denniston writes:

The majority on Thursday ruled that Bullcoming’s confrontation right had been violated because prosecutors were allowed to offer a crime lab report analyzing Bullcoming’s blood sample, and had called to the witness stand not the lab analyst who did the tests, but a supervisor at the lab who had neither done the test nor observed it being done.  Producing such a substitute, or “surrogate,” witness, the Court ruled, is not sufficient to satisfy the Sixth Amendment confrontation right.  This, the Court said, logically followed from the Melendez-Diaz ruling, which had ruled that a crime lab report could not be introduced without some live testimony from an analyst to defend it and to be cross-examined about it.

Bullcoming was a 5-4 decision, but the line-up did not follow the normal liberal/conservative divide. Joining Justice Ruth Bader Ginsburg’s majority opinion in favor of an expansive reading of the Confrontation Clause were Justices Antonin Scalia, Clarence Thomas, Sonia Sotomayor, and Elena Kagan, while Justice Anthony Kennedy’s dissent was joined by Justice Stephen Breyer, Justice Samuel Alito, and Chief Justice John Roberts. The biggest surprise here is Justice Sotomayor, who joined the Court after 2009’s Melendez-Diaz decision. As Contributing Editor Radley Balko noted after her confirmation, Sotomayor’s background as a prosecutor suggested she might vote for a narrower reading of the Confrontation Clause in future decisions. Thankfully, that turned out not to be the case here.

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  • Mnemone Jones||

    This is just the ol' Formalism v. Pragmatism debate. It is very nice to know that Sotomayor is a criminal law formalist.

    Breyer needs to go the fuck away.

  • htjyang||

    Sotomayor's majority opinion in Michigan v. Bryant casts doubt on this view. She also voted to cut back on 4th Amendment protection in Kentucky v. King and the exclusionary rule in Davis v. US. On balance, I would say she is much friendlier toward the prosecution than her predecessor.

  • ||

    I had hoped there was a chance Sotomayer would surprise some people on her concerns for the little guy. This is very good news.

  • ||

    However, Justice Sotomayor did write a concurrence that significantly limited the scope of the ruling. That is unfortunate.

    At least she came down on the right side, but it would have been a stronger ruling with Souter still on the Court.

  • Anonymous Coward||

    Ginsburg contended that the ruling would not “impose an undue burden” on prosecutors. She then discussed several ways by which “forensic evidence” — that is, crime lab reports — could be offered at trial. She suggested that states could require labs to preserve the evidence so that it can be retested and then call to the stand the technician who did the new analysis if the technician who did the first report is not available, or pass a law that would require prosecutors to give defense lawyers advance notice of a plan to use a lab report and take away the defense’s confrontation right if they failed to demand that the preparer appear.

    What the fuck is with this "use it or lose it" attitude of the current Supreme Court?

  • Federal Dog||

    Prosecutors need to stop whining about constitutional limits on their conduct, and produce the goddamned witnesses already. Crawford was decided seven years ago, for Christ's sake.

    The longer they cause problems about a line of cases that is not going away, the bigger the backlog to be disposed of on collateral attack years after the fact. It's in the states' best interest to proceed back to retrial right away (if that's what they want to do), as opposed to dragging this out for another seven years, and then trying to deal with thousands of cases, lost witnesses, evidence, fading memories, etc. long after the fact.


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