By: Dana M. Grimes, Esq.
The application of scientific analysis to physical evidence is a crucial part of the criminal justice system. CSI in Criminal cases is part of the evidence in many trials. However, the introduction of that evidence at trial must be done through a witness in confrontation with the Confrontation Clause of the Sixth Amendment, which states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” The Fourteenth Amendment renders the Confrontation Clause binding on the States. Pointer v. Texas (1965) 380 U.S. 400, 403.
The Supreme Court ruled in Michigan v. Bryant (2011), over the strenuous dissent of the late Justice Scalia, that a dying declaration is not testimonial and reintroduced a reliability calculus into determining whether a statement is testimonial. The Bryant court ruled that a statement given to police by a wounded crime victim identifying the person who shot him may be admitted as evidence at trial if the victim dies before trial and thus does not appear. The court found that because the primary purpose of the interrogation was to enable police to deal with an ongoing emergency, the statements resulting from that interrogation were not testimonial and could be admitted without violating the Confrontation Clause.
Recent Confrontation Decisions affecting the use of CSI in Criminal Cases
The Bryant Court began its analysis with Crawford v. Washington (2004) 541 U.S. 36, which examined the common-law history of the confrontation right and explained that “the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” Id., 541 U.S. at 50. Crawford was the beginning of a trend for the past six years or so in which the High Court has been moving to expand the right of confrontation. The Crawford Court noted that in England, pretrial examinations of suspects and witnesses by government officials “were sometimes read in court in lieu of live testimony.” Id. at 43.
The Supreme Court focused on the word “witnesses” in the Sixth Amendment, defining it as “those who ‘bear testimony,'” and defined “testimony” as a “solemn declaration or affirmation made for the purpose of establishing or proving fact.” Id., 541 U.S. at 51. The Court limited the Confrontation Clause’s reach to testimonial statements and held that in order for testimonial evidence to be admissible, the Sixth Amendment “demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id., at 68.
Subsequently, in 2006, the Court in Davis v. Washington, 547 U.S. 813, and Hammon v. Indiana, 547 U.S. 813, hashed out which police interrogations produce testimony and therefore implicate a Confrontation Clause bar: “Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.” Davis v. Washington, supra, 547 U.S. at 822.
The Melendez-Diaz Decision
The Supreme Court in Melendez-Diaz v. Massachusetts (2009) held that when an expert opinion is set forth in a formalized document offered as evidence in place of live testimony, it is a testimonial statement subject to the restrictions of the Confrontation Clause as interpreted in Crawford v. Washington, supra, 541 U.S. at 36. In Melendez-Diaz, the Court held the admission of an affidavit from a criminalist that the substance tested was cocaine was testimonial. Id. Similarly, Crawford and its progeny imply that an expert opinion recorded in an unsworn laboratory report may not simply be read into evidence at trial by a custodian of records or another expert who acts as a conduit for the original analyst’s hearsay opinion. E.g., United States v. Johnson (4th Cir. 2009) 587 F.3d 625, 635.
Since Melendez-Diaz, the courts nationwide have struggled with the question of how that decision applies to an expert witness’s in-court, independent, testimonial opinion when it is based in part upon forensic science test data recorded by an analyst who does not take the stand. Many criminal courts continue to admit into evidence a qualified scientific expert’s independent opinion, subject to cross-examination, based in part upon data or observations generated from forensic testing by a non-testifying examiner or analyst.
Bullcoming v. New Mexico
The Supreme Court ruled in Bullcoming v New Mexico that the confrontation clause does not permit the prosecution to introduce at trial a lab report containing a testimonial certification, through an analyst who did not personally perform or observe the test. The New Mexico Supreme Court had ruled in State v. Bullcoming (2010) 226 P.3d 1, that the Confrontation Clause was not violated when the prosecution called a surrogate analyst from the laboratory to testify as to the defendant’s blood alcohol concentration rather than the analyst who actually conducted the blood alcohol analysis performed in the case.
Justice Scalia was the Supreme Court’s most active protector of defendants’ rights to confront their accusers. A few days after winding up on the losing end of Michigan v. Bryant, Scalia spent a good deal of time in oral argument in Bullcoming supporting the petitioner’s argument.
The attorney for the petitioner began by stating:
The text, purpose, and history of the Confrontation Clause make it clear that the prosecution cannot introduce one person’s testimonial statements through the in-court testimony of someone else. Thus, having held in Melendez-Diaz that a lab analyst’s statements in a forensic lab report are testimonial, this is an easy case.
The State violated the Confrontation Clause by introducing lab analyst Curtis Caylor’s statements in a forensic lab report without putting him on the stand. The New Mexico Supreme Court resisted this analysis, straightforward as it is, on the ground that Mr. Bullcoming, as the defendant, had the opportunity to cross-examine a substitute or a surrogate witness, Mr. Razatos. But a surrogate witness procedure violates all four components of the right to confrontation. It quite obviously violates the defendant’s right to have the witness testify in his presence, in the presence of the jury so the jury can observe it, and under oath, as happened in this case.
Bullcoming v. New Mexico, Supreme Court official transcript, pp. 3-4.
The analyst in Bullcoming’s case, who had prepared the blood-alcohol report used against convicted DUI defendant Bullcoming, did not appear at trial. He was on leave without pay at the time of the trial. Scalia believed those facts suggested the possibility of “skulduggery,” on behalf of the government, and made it clear he felt Bullcoming’s lawyers should have had the opportunity to find out whether that analyst was incompetent. Bullcoming transcript, p. 39. The Amicus brief filed on behalf of a number of defenders’ associations stated, “criminal defense attorneys do not take every case to trial, and when they do, they do not always challenge the forensic evidence presented by the prosecution. In those cases when the criminal defense attorney does challenge the forensic evidence, the only person who can provide the necessary information for meaningful cross-examination is the analyst who actually performed the forensic testing at issue.” Criminal Defense Lawyer Amicus Brief, p. 3. The amicus brief filed by the Innocence Project used as an example – the case of Dwayne Allen Dail. In that case, the forensic analyst testified that she had found semen on clothing. Under cross-examination, she was forced to explain that it did not match Dail. Even though Dail was convicted, her testimony allowed Dail’s post-conviction attorneys to successfully argue that an error in analysis of other DNA evidence, which she had testified did match Dail, was likely. Dail was eventually exonerated by subsequent DNA testing. See Brief of Amicus Curiae, The Innocence Project, page 5, fn. 11.
New Mexico’s lawyer, state Attorney General Gary King, compared a lab report to a “public record,” the kind of out-of-court statement the Court had said in Bryant would be allowed in evidence over a confrontation objection. King suggested a lab technician is not engaged in the effort to build evidence for the prosecution. Scalia scoffed at the idea and asked if the lab technician is then preparing a crime report “just for fun?” Bullcoming transcript, p. 33.
The Attorney General’s Amicus brief warned: “Requiring testimony from every analyst who performed some part of a scientific test or procedure, and who may have no specific recollection of any particular test, would advance no interest protected by the Confrontation Clause. Instead, it would do harm. It would pull valuable analysts away from their under-resourced laboratories and into court-houses. And it would stifle continued development and improvement of reliable and efficient evidence-processing protocols that rely on multiple technicians or analysts in a given case.” When other Justices expressed concern if too many technicians were subpoenaed to trials to justify their reports, Scalia dismissed such theoretical fears over chain-of-custody issues as “a boogeyman.” Bullcoming transcript, p. 48.
Justice Ginsberg wrote the opinion for the 5-4 majority in Bullcoming. Justice Kennedy wrote a strenuous opposition on behalf of the four dissenters.