The Admission of Blood Alcohol Reports After Bullcoming
| Publication year | 2012 |
| Pages | 55 |
| Citation | Vol. 41 No. 3 Pg. 55 |
2012, March, Pg. 55. The Admission of Blood Alcohol Reports After Bullcoming
March 2012
Vol. 41, No. 3 [Page55]
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
Danny Luneau is a criminal defense attorney with Charles L. Fife and Associates, P.C.-(303) 757-2200, dluneau@duidenver.com.
This article discusses the U.S. Supreme Court's recent decision in Bullcoming v. New Mexico, whereby the Court ruled that a criminal defendant has an absolute right to cross-examine the actual author of a toxicological report.
In 2011, the U.S. Supreme Court decided in Bullcoming v. New Mexico(fn1) that a blood alcohol report from a state toxicologist was "testimonial" within the meaning of the Sixth Amendment's Confrontation Clause and, therefore, that the defendant had a right to cross-examine the actual author of the report instead of a stand-in. This article examines the impact Bullcoming is having and will have in Colorado criminal prosecutions, especially for driving under the influence of alcohol.
The Sixth Amendment's Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." The Court in Ohio v. Roberts interpreted this language to "allow admission of absent witnesses' testimonial statements based on a judicial determination of reliability."(fn2) The Sixth Amendment did not categorically prohibit all hearsay, and indeed, the Court recognized that at the time the Sixth Amendment was adopted, many hearsay exceptions had long been rooted in the common law.
For the next twenty years, confrontation analysis focused on which modern hearsay exceptions were in fact rooted in the common law and, therefore, also were exceptions to the command of confrontation, and which were not.(fn3) This confrontation world was turned upside down in 2004, when the Court held in Crawford v. Washington that the Confrontation Clause categorically prohibited any kind of hearsay, well rooted or not, that was "testimonial" in nature. As the Court put it, the Confrontation Clause permits "admission of [t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross examine."(fn4) Crawford produced a veritable cottage industry of cases and commentaries discussing the meaning of the term "testimonial."(fn5)
In 2006, in Davis v. Washington, the Court clarified that statements are testimonial
when circumstances objectively indicate that there is no . . . ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later prosecutions.(fn6)
Nontestimonial statements "are made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency."(fn7)
Despite this seemingly clear line between what is and what is not testimonial for confrontation purposes, many state and federal courts began recognizing a kind of general forensic exception, permitting forensic reports to be admitted without their authors being available for cross-examination.(fn8) There were many rationales for this exception, all revolving around the idea that forensic analysts are not "accusatory" witnesses but are "neutral" observers more like scriveners when it comes to the admissibility of their reports.(fn9) A minority of courts concluded that forensic reports were testimonial, and therefore could not be admitted unless the defendant could cross-examine the report's author.(fn10)
Some states, including Colorado, even recognized the forensic exception statutorily, and long before Crawford. Since 1984, CRS § 16-3-309(5) has provided that at least ten days before trial, a party must request that the lab technician testify, failing which the lab report will be admitted without the technician's live testimony. After Crawford and even after Davis, the Colorado Supreme Court upheld the constitutionality of this statute against a confrontation claim. In Hinojos-Mendoza v. People, the Colorado Supreme Court reasoned that it was well established that "the right to confrontation can be waived," and that there is nothing in the Crawford opinion that would alter this fact.(fn11) By failing to provide the notice required by § 16-3-309(5), the defendant was, in effect, according to the Hinojos-Mendoza Court, waiving his right to confront the report's author.
Moreover, the Court stated that "the primary purpose of the Confrontation Clause is to secure for a defendant the opportunity of cross-examination."(fn12) Where a defendant chooses not to "take advantage of the opportunity to cross-examine a witness, the defendant has not been denied his constitutional right to confrontation."(fn13) The Court went on to explain that:
[T]he procedure provided in section 16-3-309(5) for ensuring the presence of the lab technician at trial does not deny a defendant the opportunity to cross-examine the technician, but simply requires that the defendant decide prior to trial whether he will conduct a cross-examination.(fn14)
Two years after the Colorado Supreme Court upheld the constitutionality of § 16-3-309(5) in Hinojos-Mendoza, the U.S. Supreme Court revisited the issue. This time, in Melendez-Diaz v. United States, the Court expressly rejected the forensic exception.(fn15) The trial court in Melendez-Diaz admitted, over the defendant's confrontation objection, a laboratory report by state analysts concluding that the substance found on the defendant was cocaine and that it weighed a certain amount. The defendant was convicted and his convictions were affirmed by the state appeals courts. The U.S. Supreme Court reversed, rejecting the...
To continue reading
Request your trial