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CSI meets Law & Order: Supreme Court rules lab techs must testify in court

The Supreme Court ruled Thursday that the practice of permitting substitutes to testify about forensic evidence violates defendants’ constitutional rights to confront their accusers.

By / June 23, 2011

This photo from CSI's 200th episode shows two of TV's most famous forensic experts. Real-life forensic technicians must now be available to appear in court when their lab results are submitted as evidence, ruled the Supreme Court on Thursday.

Ron Jaffe / Courtesy of CBS / File

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Laboratory technicians who conduct forensic tests in a criminal investigation must be available – personally – to present and explain their findings, the US Supreme Court ruled on Thursday.

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In a 5-to-4 decision, the high court said a criminal defendant has a Sixth Amendment right to confront the lab analyst who conducted the work – rather than merely a stand-in or substitute representative from the same lab.

“We hold that surrogate testimony … does not meet the constitutional requirement,” Justice Ruth Bader Ginsburg wrote in the majority opinion.

The ruling, in a New Mexico driving-under-the-influence case, expands a 2009 Supreme Court decision that required laboratory technicians to be available for cross-examination whenever forensic reports are introduced as evidence in a trial.

State officials had argued that the test results were machine-generated and that it didn’t matter who had performed the test.

Thursday’s ruling makes clear that it is not enough to send any laboratory representative to court with forensic test results – it must the same analyst who performed the underlying tests that are being entered as evidence.

“The comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar,” Justice Ginsburg said.

“The analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa,” Ginsburg added, quoting language from the 2009 decision.

The ruling comes at a time when prosecutors are increasingly relying on forensic evidence involving scientific methods of measurement in criminal cases.

It also comes at time when state criminal laboratories are already struggling to keep up with an ever-increasing number of subpoenas requiring analysts to appear personally in court.

In a dissent, Justice Anthony Kennedy noted that from 2008 to 2010, the number of subpoenas requiring analysts from New Mexico labs to testify in impaired-driving cases had increased by 71 percent, to 1,600. He noted that New Mexico employs 10 analysts.

“The result has been, in the laboratory’s words, ‘chaotic,’ ” he wrote.

Justice Kennedy added: “Scarce state resources could be committed to other urgent needs in the criminal justice system.”

The decision, in Bullcoming v. New Mexico (09-10876), stems from the case of Donald Bullcoming. In August 2005, he was arrested in Farmington, New Mexico, on charges of driving while intoxicated (DWI). Mr. Bullcoming rear-ended a truck stopped at an intersection. He failed a field sobriety test but refused to take a breath test.

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