24 June 2011

SCOTUS: "straw" witness not enough to satisfy confrontation clause

Bullcoming v New Mexico, 564 US __ [available here]

The United States Supreme Court, in a 5-4 majority decision by Justice Ginsberg, held that a forensic laboratory report certifying "that defendant's blood alcohol concentration was well above the threshold for aggravated DWI" is inadmissible unless the analyst who conducted the tests and certified the results testifies at trial.  The prosecutor at trial tried to get around the confrontation clause requirement by having "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" testify about the test results and introduce the lab report in evidence.  Justice Ginsberg says:  nice try, but "that surrogate testimony does not meet the constitutional requirement."  You need the testimony of the analyst who actually performed the test and certified the results.

Brian Shiffrin has his take on the decision over at New York Criminal Defense.  As Brian points out, Justice Sotomayor filed a separate concurrence, and was nice enough to point out all the ways a prosecutor might work around a defendant's confrontation rights in a way that might gain her blessing (and thus tip the balance 5-4 the other way by the time the next confrontation case reaches the high court).