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.
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.
Police obtained a warrant and transported Bullcoming to a hospital to take a blood sample. The sample was sent to a state laboratory where it was tested by Curtis Caylor, a technician. It registered a concentration of alcohol of .21 grams per 100 milliliters of blood.
A reading of .08 is sufficient to prove DWI, and a reading of more than .16 is aggravated DWI.
At Bullcoming’s trial, the nurse who took the blood sample at the hospital and the arresting police officer testified. But when it came time to introduce the laboratory report, prosecutors called Gerasimos Razatos, a different technician who had neither performed nor supervised the analysis shown in the report. Mr. Caylor, who did perform the analysis, was not present at the trial.
Bullcoming’s lawyer argued that Caylor’s absence from the trial violated his client’s Sixth Amendment right to confront witnesses against him. The state countered that there is no human component in the blood analysis other than looking at the machine and recording the result. In effect, the state said, Bullcoming’s accuser was the machine, not Caylor.
Bullcoming was found guilty of DWI.
His lawyer raised the confrontation clause issue both at trial and on appeal. The New Mexico Supreme Court upheld the conviction, ruling that even though the lab report was a form of testimony, its introduction by a different laboratory technician was sufficient to fulfill a defendant’s right to confrontation.
In reversing that decision, Ginsburg said that courts could not permit one analyst, who had not performed a particular test, to substitute for the testimony of the analyst who did.
Ginsburg said the point of the Sixth Amendment’s confrontation clause isn’t that the testimony or evidence being introduced at a trial is reliable. The point of the clause is that reliability will be assessed in a particular manner: through testing in the crucible of cross-examination.
“The clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statements provides a fair enough opportunity for cross-examination,” Ginsburg wrote.
“When the state elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront,” she said. “Our precedent cannot sensibly be read any other way.”