Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for Csi-type Reports

• Publication year: 2021
• Citation: Vol. 90

90 Nebraska L. Rev. 502. Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-type Reports

Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-type Reports

Ronald J. Coleman(fn*) and Paul F. Rothstein(fn**)

TABLE OF CONTENTS

I. Introduction .......................................... 503

II. Modern Confrontation Clause Jurisprudence ........... 506
A. Ohio v. Roberts .................................... 506
B. Crawford v. Washington ........................... 507
C. Davis v. Washington ............................... 510
D. Michigan v. Bryant ................................ 511
E. Melendez-Diaz v. Massachusetts ................... 515

III. The Bullcoming Case ................................. 518

IV. Open Issues Concerning Confrontation and Forensic Reports when Bullcoming was Accepted for Decision by the U.S. Supreme Court ............................... 524
A. Issues Needing Resolution as Bullcoming Reached the U.S. Supreme Court ........................... 525
1. Who is a 'Witness' for Confrontation Clause Purposes (Or is That Irrelevant)? .............. 525
2. If Scientific Analysts Must Testify, Should There Be a Scrivener Exception and What Should Count as a Scrivener? ......................... 527
3. In Determining Whether an Analyst's Report is Covered by the Confrontation Clause Should It Matter Whether the Statement is Formally Sworn? ........................................ 530

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4. If a Scientific Analyst is a Witness for Confrontation Clause Purposes, Which Analyst Must Testify? .................................. 532
i. The Surrogate Witness Question ........ 532
ii. The "Which Analyst Must Testify" Question ............................... 535
5. In Determining Whether a Separate Analyst Can Testify, What is the Interrelationship Between the Surrogate Witness Concept and Federal Rule of Evidence 703 (and Similar State Rules)? ........................................ 538
6. Should the Defense's Own Right to Call the Specific Analyst to the Stand Be Sufficient, With No Need for the Prosecution to Present the Analyst? ....................................... 543
7. Should There Be Some Practical Time Limitation on the Requirement that the Analyst Appear? ....................................... 545
8. Would the Analyst Have to Testify (If at All) Only When the Testing/Reporting is Done for Purposes of a Legal Proceeding? ............... 547
9. Should It Matter Whether the Laboratory is Public or Private? ............................. 549
B. Implications of Bullcoming Opinion For Law Enforcement ...................................... 552

V. Conclusion ............................................ 557

I. INTRODUCTION

In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence."(fn1) Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies.(fn2) In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain,(fn3) in

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Shakespearean writing,(fn4) and even in the Bible.(fn5) In the United States, the right to confront was enshrined in the Sixth Amendment to the Federal Constitution which provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ."(fn6) The right to confront applies at both the federal level and at the state level (through the Fourteenth Amendment).(fn7)

Although there is some consensus that the Constitution grants criminal defendants some right to confront their accuser, there is much less agreement on exactly who must be confronted and for what kinds of accusations or statements.(fn8) Particularly controversial is whether the Confrontation Clause requires a scientific analyst (e.g., from the CSI lab) to testify in criminal cases where such an analyst conducts a test, perhaps using a machine or other apparatus, and then prepares a report communicating the results of that test, and that report (or evidence of it) is offered at trial against an accused.(fn9)

In Melendez-Diaz v. Massachusetts (fn10) the Supreme Court held that reports from forensic analysts were not exempted from the accused's Confrontation Clause protection.(fn11) The prosecution in Melendez-Diaz attempted to introduce the analyst's report or affidavit of what he found, alone, without presenting the analyst himself for testimony and cross examination.(fn12) The decision held that the analyst of the narcotic substance found on the accused had to testify.(fn13)

But the Court left open multiple questions, not necessary to the decision on the facts, including whether exceptions could be made for certain, specific types of analysts, which specific analyst must testify where several were involved, whether someone else from the lab-say a supervisor-could testify instead, and whether an expert witness relying on the report could obviate the need for confrontation of the ana-lyst(s).(fn14) Moreover, the continued vitality of even the issue

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purportedly resolved by the Court in Melendez-Diaz (which is widely regarded as a pro-defense decision) was called into question by the later appointments of Justice Kagan and Justice Sotomayor (who has significant experience as a New York city prosecutor)(fn15) to replace Justices who voted with the Court in Melendez-Diaz (who did not have significant prosecutorial experience). As a result of all this, as we see it, after Melendez-Diaz there were nine important issues(fn16) still left open about how the Confrontation Clause applied to the prosecution using reports from forensic experts against a criminal accused at trial.

Just this last term, the Supreme Court was presented with the opportunity to tackle one of these issues in a case styled Bullcoming v. New Mexico.(fn17) In Bullcoming the Court was specifically asked to determine: "Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the state-ments."(fn18) Melendez-Diaz left that issue untouched, since no attempt was made by the prosecution to use an in-court substitute witness for the analyst. The evidence at issue in Melendez-Diaz was an affidavit or report of the testing analyst.(fn19)

Only this somewhat narrow question was presented to the Supreme Court in Bullcoming. But the opportunity was there to address many of the other nine issues we have identified. Although prosecutors, crime labs, law enforcement officials, defense lawyers, judges, and Evidence and Confrontation Clause scholars would have dearly loved-indeed, needed-to see the Court tackle all of these broader issues, there is an argument of judicial restraint that counsels against a court taking on issues unnecessary to the particular decision-issues that are not specifically raised, briefed, and argued in the case before it-on the grounds that such excursions are likely to be poorly thought out.(fn20)

It is not the purpose of this Article to weigh in on whether the Bullcoming Court should have tackled these broader issues. There are

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benefits to both views.(fn21) Rather, our purpose is to set out the nine issues regarding Confrontation law as applied to scientific reports that arise after Melendez-Diaz, and examine what, if anything, the Court said or implied about such issues in Bullcoming. We will also venture some tentative thoughts of our own on each of these issues, and some consequences of the various possible views.

Part II provides some case law history of Confrontation Clause jurisprudence so that the issues may be placed in their historical and analytical context. Part III sets forth the facts, the lower court proceedings, and the Supreme Court decision, in Bullcoming. Part IV identifies the nine important issues that arose prior to Bullcoming and discusses where they stand after that decision. Also considered in that Part are some consequences to law enforcement policy. Finally, Part V presents our conclusions. Even though the Supreme Court in Bullcoming chose to refrain from laying to rest most of the issues we identify, we hope that this paper will, at least, add to the ongoing dialogue on forensics and confrontation rights, and encourage more work in this important and developing area of law.

II. MODERN CONFRONTATION CLAUSE JURISPRUDENCE

Although the right to confront an accuser has a long history, the modern Confrontation Clause jurisprudence in the United States has developed over approximately the last thirty years.(fn22) In this Part, we will detail several modern, landmark Confrontation Clause cases in order to provide a necessary background for the remainder of this Article. We present the cases generally in chronological order, but will depart once from chronology for thematic reasons. The modern Confrontation Clause history begins with...