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Argument preview: Is a “stand-in” witness OK?

A simple auto accident at a city street intersection has led to a crucial test case before the Supreme Court on a core question about the constitutional right to confront one’s accuser at a criminal trial: can someone else take the stand instead of the actual accuser?  That issue will be heard at 10 a.m. Wednesday in the case of Bullcoming v. New Mexico (09-10876).   Arguing for Donald Bullcoming of Farmington, N.M., will be Stanford law professor Jeffrey L. Fisher, appointed by the Court.  Representing New Mexico will be its state attorney general, Gary K. King.  All nine Justices are expected to be on the bench for the argument.



The Supreme Court has been working its way through a series of sequel cases since its landmark ruling in 2004 in Crawford v. Washington declared that prosecutors may not constitutionally put before a jury at a criminal trial an out-of-court statement if the witness who made it cannot take the stand, unless the statement was tested earlier by something equivalent to cross-examination.   It has not been an easy judicial task: just this week, Justice Antonin Scalia — the most fervent supporter of the Crawford principle — lashed out bitterly in dissent when the majority created a new exception to this Sixth Amendment confrontation right, in Michigan v. Bryant.

Now, the Court is about to confront what seems like the simplest of sequel issues: if a written piece of evidence (here, a crime lab report) is to be offered in evidence to help prove guilt, who must be called to the witness stand to be questioned about it?   Treating the author of such a lab analysis as the accuser, for Sixth Amendment confrontation purposes, the Court is being asked to decide whether a substitute witness — someone else on the lab’s staff — can stand in for the actual accuser.  But there is another way to look at the issue: if a machine in the lab is actually the accuser, does it make a constitutional difference which lab analyst, familiar with the machine and how it works, takes the stand?

The question arises out of a routine traffic accident — a rear-ender, at a street intersection in Farmington, N.M., in the afternoon of August 14, 2005.  Dennis (Randy) Jackson was stopped in his truck at a stop sign, when a truck driven by Donald Bullcoming struck it from the rear.  No one was hurt.  When the drivers got out to discuss it, Jackson thought he detected alcohol on Bullcoming’s breath, and telephoned his wife, urging her to call police.   Before the officers arrived, Bullcoming had left the scene, saying he was going to a restroom.  He would say later he departed because he had been named in Oklahoma in an outstanding arrest warrant.  He met some pals, and they drank a good deal of vodka.

Before long, though, police located him, and gave him field sobriety tests, which he reportedly failed.  Taken to the police station, a blood sample was taken, which, a lab report would later say, showed three times the legal alcohol limit.   The blood sample had been sent to the Scientific Laboratory Division of the New Mexico Health Department.’s Toxicology Bureau.  At the lab, analyst Curtis Caylor ran tests on it, using a gas chromatograph machine.  He signed the forensic report declaring the over-the-limit blood alcohol content.

Bullcoming was charged with drunk driving, and prosecutors sought to introduce Caylor’s lab report as evidence.  When the trial started, however, prosecutors told Bullcoming’s lawyer that they planned to call Gerasimos Razatos, another analyst at the lab, as their witness on the report, not Caylor.   Razatos had not done the tests on Bullcoming’s blood sample.  It was not clear immediately why Caylor would not be summoned; it would emerge later, though, that he had been put on unpaid leave.  The trial judge allowed Razatos to be the witness, and he was questioned about the report; when asked why Caylor was on unpaid leave, the other analyst said he did not know.  The trial judge concluded that the report was not a form of testimony, so the Crawford decision did not exclude it as evidence in Caylor’s absence.

Bullcoming was convicted of aggravated drunk driving, and was sentenced to two years in prison.   Losing in the New Mexico Court of Appeals, Bullcoming went on to the state Supreme Court.  While his appeal was pending there, the U.S. Supreme Court in 2009 ruled in the case of Melendez-Diaz v. Massacchusetts that crime lab reports were a form of testimony under Crawford, and their authors were witnesses who would have to take the stand for cross-examination.  The state Supreme Court agreed with Bullcoming that the lab report was testimonial in nature, but it ruled that Razatos’s appearance on the stand gave Bullcoming’s lawyers a sufficient chance to cross-examine about the lab report.   Caylor, it said, simply wrote down the results of the lab test, so Razatos was competent to testify about the results.

Bullcoming’s public defender lawyer then took the case on to the Supreme Court.

Petition for Certiorari

Bullcoming’s petition posed the single question of whether the Confrontation Clause allows the prosecution to offer a crime lab report and, with it, the testimony of a supervisor or other person in the lab who did not perform or observe the laboratory analysis that the report had described.  The highest courts of a number of states and federal Circuit Courts, the petition asserted, “are deeply and intractably divided” over that question.  This was, it said, an “escalating conflict,” and the Justices should step in to resolve it.

The petition argued that the Court’s Melendez-Diaz decision had raised two questions that bore upon the implementation of that decision at criminal trials: was it enough that the defense lawyer simply demand that an analyst be put on the stand to discuss a lab report, and whether the prosecution could satisfy its Sixth Amendment obligation by calling a forensic witness of its own choosing to do so.

At the time the petition was filed, the Court had on its docket another case raising the issue of which witness had to be called, Pendergrass v. Indiana (docket 09-866).   In that case, as in Bullcoming’s, a state supreme court had ruled that a substitute analyst would satisfy the Sixth Amendment, if that analyst was familiar with the laboratory involved and with the analyst who actually did the test and wrote the report.  The Court, however, denied review in that case on June 14 last year.  That denial was among the authorities that the state of New Mexico cited when, in replying to Bullcoming’s petition in August, it contended that there was no actual conflict among lower courts when the lab report was one that simply recounted “raw data generated by a machine.”

In September, however, the Court, picking its first round of new cases for the new Term, agreed to hear Bullcoming’s appeal, presumably accepting, at least at that stage, that there was a conflict to be resolved.

Merits Briefs

The Court is presented with a stark choice of alternative ways to examine the Bullcoming case.  Bullcoming’s merits brief argued the basic proposition that “the foundational role of the Confrontation Clause,” based on a tradition that runs back centuries, is that the accused is entitled to confront the specific witness who has made a statement against him.  The merits brief by the state of New Mexico, however, contended that a laboratory report — especially when it is only “a transcription of raw data produced by a machine” — should not be treated as testimonial to begin with, and, thus, it makes no difference who comes to the stand to discuss it.

Bullcoming focused his merits attack on the entire concept of a “surrogate witness” — a label that, of course, immediately reveals that it is someone other than the presumed accuser.  There are four functions served by the obligation to call a particular witness, the brief argued, and the use of a surrogate fails to fulfill any one of the four: cross-examination and the chance to test credibility, the accuser must testify under oath, the judge gets to evaluate the accuser’s demeanor, and there is an actual, in-court encounter between accuser and accused.   Even if there is a chance to cross-examine a surrogate, the brief said, that is only one of the four rationales for confrontation.

There is, the brief contended, “no ‘forensic exception’ to the Confrontation Clause’s bar against surrogate testimony.”  And, it contended, neither is there a Sixth Amendment exception for testimony about “machine-generated results.”  A lab analyst who comes to court to testify about the numbers generated by a machine, Bullcoming’s lawyers argued, is like an eyewitness who claims to have seen a license-plate number: the observations of each should be subjected to testing in court, in front of the accused.

But, as an alternative argument, the Bullcoming brief contended that the statements in the report used against him went well beyond mere transcriptions of the test results from a machine.  There were actual certifications about the chain-of-custody and integrity of the blood sample, and about the protocols used in the test.

New Mexico’s merits brief asked the Court to strike out on a tangent, even while suggesting that the Justices need not disturb either Crawford or Melendez-Diaz.   What the Court should now do, the state contended, is to craft a definition of “testimonial” under the Confrontation Clause that would exclude much “scientific evidence.” If a scientific report, including a crime lab report, was not prepared under oath, and is not a formalized statement like an affidavit or a confession, it should not be treated as “testimonial,” according to this brief.

“The Confrontation Clause should not be expanded,” the state contended, “beyond the Court’s existing precedent to include non-adversarial public records.  The purpose of the Confrontation Clause is to protect the adversarial right of confrontation and to prevent the substitution of inquisitorial practices for the adversarial trial process.”   A public record that does not have that adversarial character, and was prepared independent of law enforcement, New Mexico argued, should not be treated as testimony, requiring its actual preparer to appear.

But, as a back-up argument, New Mexico asserted that, even if the lab report used against Bullcoming is to be treated as testimonial, it was constitutionally sufficient to have another lab analyst come to the stand to be questioned about it.

As was predictable, Bullcoming has attracted the unstinting support — for a simple theory of confronting the lab analyst as the accuser for whom there could be no surrogate – of  the criminal defense bar, including public defenders, and a group of law professors who specialize in the Confrontation Clause and its implementation.   The law professors, for example, suggested that what is going on with the crime lab/witness issue is nothing less than an attempt to undercut the Melendez-Diaz holding.

And, just as predictably, prosecutors and state officials — concerned that a constitutional requirement to produce the actual individual or group of individuals who prepared crime lab reports would bog down the law enforcement process — have joined in supporting New Mexico.  A group of 33 states, plus the District of Columbia, have argued in their amicus brief that a command to summon every lab analyst who had any part in a specific report would not only pull analysts away from their task of examining potential evidence, but also would create incentives for defense lawyers to “gamble on an analyst’s non-appearance at trial by resisting an early plea bargain,” bogging down the whole criminal justice system.


The Court has exhibited some signs — especially in the newly released decision in Michigan v. Bryant — of a growing hesitancy to follow the core principle of the Crawford decision to its logical limit.  Perhaps drawing on some concern that Justice Scalia’s purist view of the Confrontation Clause may well be having negative consequences for trial practice as well as for law enforcement, some of the Justices may well be looking for a more nuanced approach to this entire subject.   New Mexico, it would appear, fashioned its merits brief on an assumption that this sentiment is incipient, if not already developed.  Carefully avoiding asking the Court to retreat from Crawford, New Mexico suggested what it obviously understood to be a middle ground, crafting an exception for much “scientific evidence.”

Bullcoming’s approach appeared to reflect an assumption that the Court will continue to move the Crawford decision along a straight line toward ever more direct confrontation, with real people still being the constitutionally mandated adversaries in the courtroom.  By relying strongly on ancient principles of eye-to-eye accusation and challenge, his lawyers have sought to embolden the Court to hold fast against a pragmatic urge to give lab machines a more controlling role in the battle over criminal evidence.   To defense lawyers, it is obvious that scientific evidence is becoming ever more prominent in criminal prosecutions, putting intense new pressure on ancient principles.

It is, therefore, plain that this case, which on its surface seemed to be one of the simplest sequels to Crawford, may well require the Justices to ponder far more deeply just where the Crawford enterprise is ultimately headed.  Justice Scalia, it is beginning to be evident, has detected signs that the trend lines might be running against his approach, requiring him to more doggedly defend what he thought the Court had wrought.  His dissent in the Bryant case, indeed, read like a fervent call to arms.   He will bear watching in Wednesday’s argument.

Recommended Citation: Lyle Denniston, Argument preview: Is a “stand-in” witness OK?, SCOTUSblog (Feb. 28, 2011, 9:01 PM),