By Brandon L. Garrett, a professor at the University of Virginia School of Law. You can follow updates related to Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” at the book’s Facebook page here.
Yesterday, the U.S. Supreme Court in Bullcoming v. New Mexico ruled that it violates the Confrontation Clause of the Sixth Amendment to permit a forensic report to be introduced at trial by putting on the stand a crime lab analyst who did not do the actual work in the case. The Court, in a majority opinion authored by Justice Ginsburg, reinforced the Court’s 2009 decision in Melendez-Diaz v. Massachusetts, by ruling that putting on such “surrogate testimony” denies the defense an opportunity for cross-examination. Some labs have long put on the stand forensic analysts who were not involved in the particular work done in a person’s case. Perhaps the analyst who actually did the work had left the office. Perhaps that analyst was overworked. Or perhaps one analyst in the lab was especially effective in front of a jury.
Donald Bullcoming was arrested for driving while intoxicated, after rear-ending another pick-up truck. The central evidence against him at trial was a lab report, a “Certificate of Analyst,” stating that his blood alcohol level was well above the legal limit. The prosecution did not call the analyst who actually tested Bullcoming’s blood sample – he had been placed on unpaid leave for some undisclosed reason. (This could raise a red flag – though perhaps the reason for the unpaid leave was entirely unremarkable.) The State instead called someone else from the lab who was familiar with their testing procedures.