Close call on Bullcoming
The Chinese have the Year of the Dragon, Year of the Rat, Year of the Snake, and so forth. The US Supreme Court has the Year of the 4th Amendment, Year of the 5th Amendment, and so forth. The 2008 term featured the former, with big decisions like Herring v. US and Arizona v. Gant. The 5th Amendment was front in center in the 2009 term, with major decisions on the Miranda warnings like Berghuis v. Thompkins and Maryland v. Schatzer.
Well, this is the Year of the 6th Amendment, specifically, the right to confrontation. Earlier this year, in Michigan v. Bryant, the Supreme Court substantially limited Crawford v. Washington, the seminal 2004 decision holding that out-of-court statements were barred if they were "testimonial," even if they fell within a hearsay exception. Yesterday, in Bullcoming v. New Mexico, the Court narrowly repulsed an attack on Melendez-Diaz v. Massachusetts, and even on Crawford itself.
Melendez-Diaz was the 2009 decision in which the Court had struck down a Massachusetts law allowing the state to prove the nature and quantity of drugs in a narcotics prosecution by simply submitting the affidavit of an analyst who'd tested the substance. Bullcoming was similar -- it involved a certification of the result of a blood sample in a drunk driving prosecution -- but there was one critical difference: while no "live" testimony was submitted in Melendez-Diaz, in Bullcoming the state offered the testimony of one of the lab technicians who regularly performed the testing, albeit not the one who did that particular test. The New Mexico Supreme Court decided that this was enough to give the defense a "meaningful" opportunity at cross-examination.
Five members of the Court disagreed, but four dissented from that view, which is interesting in itself. Crawford was unanimous (although two justices concurred only in judgment), and the next decision in that line, Davis v. Washington, received only a single dissent. By the time the Court handed down Giles v. California two years later, though, three justices dissented, and Melendez-Diaz was decided by a single vote. And there are several other interesting aspects to the decision.
Back in October, after the oral argument in Bryant, I did a navel-gazing post on the whole Crawford thing. You can go back and read it, or I can give you the short version, which is this: In Crawford, Scalia explained that only thing that mattered in determining whether admission of an out-of-court statement violated the Confrontation Clause was whether it was testimonial; whether it was reliable wasn't relevant. The statement in Bryant, had it been made to someone other than a police officer, would have unquestionably been admissible as an excited utterance. As I said then, "having the admissibility turn on to whom the statement was made, rather than on its inherent reliability, could be Crawford’s ultimate undoing." In Bryant, six members of the Court balked at excluding an otherwise-reliable statement, and defined "testimonial" to avoid that result.
So it's noteworthy that in Bullcoming both sides are fighting over the same terrain: reliability. The dissenters are arguing that nothing more than a number spit out by a machine is being introduced, while the majority opinion lists the problems with inaccuracies that can result during testing. The fascinating aspect here is that the case may well have turned on the fact that the reason the analyst who performed the test didn't testify at trial was because he'd been abruptly placed on unpaid leave right before it. As I mentioned in my discussion of the oral argument on Bullcoming, Scalia pounced on this, noting that had the analyst been present, he might have been cross-examined to determine the reason for his status, which could have been because of incompetency or fraud. There's a lot of "coulda wouldas" in that theory, but the majority opinion spends over a page discussing just that.
The second interesting aspect is that the opinion, written by Ginsberg, is joined only by Scalia in two respects: a footnote, and part IV of the opinion. Justice Thomas doesn't join in Footnote 6, which defines what testimonial is, but his reasons for doing so are clear: since Crawford, he has adopted the narrow view that testimonial statements must be "formal," i.e., in written or affidavit form. While the certification in Bullcoming meets that requirement (and hence Thomas' agreement with the result), the definition of "testimonial" is broader than he cares for.
Sotomayor, who wrote the opinion in Bryant, Kagan, and Thomas also declined to join in Part IV, which rejects the dissent's argument that the decision places too heavy a burden upon the prosecution, and lists ways to ease that burden. The exact reasons for not joining that part aren't immediately clear, but some can be inferred from Sotomayor's concurrence, where she writes "to emphasize the limited reach of the Court's opinion." She explains the reason that the certification was testimonial: its purpose was use at trial. That, she says, distinguishes it from "documents kept in the regular course of business [which] may ordinarily be admitted at trial despite their hearsay status." The second part of the opinion, though, highlights "some of the factual circumstances that this case does not present":
- This isn't a case where the state has claimed that there is an alternative purpose for the evidence, such as statements made for purposes of medical treatment
- It doesn't involve testimony by a supervisor or reviewer; the person who did testify had no connection with the test
- This doesn't involve an expert witness giving his independent opinion about underlying testimonial reports that weren't admitted into evidence
- The state hadn't introduced only machine-generated results, like a printout; the certification included statements about the procedures used in handling the blood sample
Does that mean that if the case had involved one of those situations, Sotomayor's vote might have been different? She provides no definitive answer, but there's certainly reason to believe that if a supervisor had testified that this was the way things were done and this is the result that was obtained, Bullcoming would have had a different ending.
And maybe not just Bullcoming. Another interesting aspect of the case is that Kennedy's dissenting opinion, joined in by Roberts, Alito, and Breyer, directs it fire not only at the result in Bullcoming, but at the entire theory of Crawford, and especially its rejection of reliability as a factor in deciding whether an out-of-court statement should be admitted. The dissent openly pines for the days of Ohio v. Roberts, the 1981 decision overruled by Crawford, in which the Court had held that an out-of-court statement could be admitted if it fell within a "well-accepted exception to the hearsay rule" and bore "adequate indicia of reliability.
I've said before that Melendez-Diaz probably had more significance than Crawford in terms of its effect on criminal practice, and that's reinforced by the disparate results in Bryant and Bullcoming. The "ongoing emergency" exception to testimonial statements created by Davis and substantially enlarged by Bryant is going to limit a defedant's opportunities to exclude customary evidence on Crawford grounds. But Bullcoming and Melendez-Diaz can mean the exclusion of critical evidence. Say, for example, a "cold case" of rape or homicide, a dormant prosecution triggered by a match of defendant's DNA through a database. Except that the person who took the defendant's DNA, or the coroner who performed the autopsy, is long gone, and the state can't produce them as witnesses. That's the kind of case that's going to come up next, and it may very well feature one of the scenarios discussed in Sotomayor's concurrence. And then we'll see what how much vitality the Crawford legacy really has left.