By Kimberly Atkins
The Daily Record Newswire
BOSTON, MA — The U.S. Supreme Court’s ruling that the Confrontation Clause bars admission of laboratory reports such as blood-alcohol content tests through the in-court testimony of an analyst who did not personally perform the test was viewed as a major victory by some defense attorneys.
But others say it’s a limited win from a Court that routinely makes it harder for criminal defendants to prevail.
“It’s supposed to be hard to convict somebody. The Framers of the Constitution made it that way,” said Edward J. Blum, a Los Angeles defense attorney. “They created a huge burden [for prosecutors] to overcome to get to a guilty verdict.”
In a 5-4 ruling that relied heavily on the Court’s 2009 decision in Melendez-Diaz v. Massachusetts — which held that the Confrontation Clause requires lab technicians who prepare forensic reports used in criminal trials to be available for cross-examination — Justice Ruth Bader Ginsburg wrote for the majority that the Confrontation 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.”
The ruling in Bullcoming v. New Mexico was hailed by some defense attorneys as a key protection of the “core right of the accused in the American criminal justice system: the right to confront the specific witnesses against him or her,” as Barbara E. Bergman, a past President of the National Association of Criminal Defense Lawyers and a co-author of NACDL’s amicus brief, said in a statement after the decision.
But other defense attorneys said that the split decision, tempered by the Court’s myriad rulings against defendants in Fourth Amendment exclusionary rule cases, doesn’t feel like a slam dunk win.
“Bullcoming makes the Court seem rather bipolar when you consider the Davis [v. U.S.] case,” said Blum, who focuses on DUI and DWI cases.
In Davis, the Court held that while generally police cannot search a vehicle incident to an occupant’s arrest after the arrestee has been secured and can’t reach the vehicle, evidence from such a search is admissible where the police officer relied in “good faith” on existing precedent at the time.
That ruling is one of several in recent years where the Court ruled against defendants in search and seizure cases, leading to the assertion by some defense attorneys that the justices were chipping away at the Fourth Amendment.
“But the opposite is happening in Bullcoming” and Melendez-Diaz, Blum said. “In these cases the Court is saying: ‘We are going to increase [defendants’] Sixth Amendment Confrontation Clause rights by saying that the prosecutor can’t get a substitute” analyst to testify at trial.
The dissenting justices echoed criticisms by prosecutors who say that requiring the exact technician who performed BAC tests to appear in court would essentially hamstring prosecutors in cases where departments are too understaffed or busy to make every lab analyst available to testify.
Justice Anthony Kennedy, who authored the dissent, noted that in many cases that means DUI defendants will simply walk.
“If the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall,” he wrote.
But Blum said that the Fourth Amendment losses for defendants at the Court outweigh any benefit they receive in the Sixth Amendment cases.
Further, the latest ruling shows that the Court’s Sixth Amendment jurisprudence is still hard to predict.
The justices handed down “Melendez-Diaz just two years earlier,” noted University of Georgia School of Law professor Erica J. Hashimoto, speaking at a recent Supreme Court discussion in Washington hosted by the American Constitution Society for Law and Policy. “Based on that case, Bullcoming should have been a very easy decision. But it wasn’t. It was 5-4.”
There is one thing that experts agree on: In criminal procedure cases, the justice to watch on the often divided Court is Justice Sonia Sotomayor.
Sotomayor wrote a concurring opinion in the case, in part “to emphasize the limited reach of the Court’s opinion.”
In her concurrence, Sotomayor suggested that her vote could have been different in any of four circumstances: if prosecutors offered an alternative purpose for the BAC report, such as a claim that it was necessary to administer the defendant medical treatment; if a supervisor, reviewer, or someone else with a personal connection to the test had been offered as a witness; if an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence; or if the state sought to introduce only machine-generated results, such as a printout from a gas chromatograph, as opposed to a report that included personal observations of the preparer.
Sotomayor, a former New York City prosecutor, also penned the opinion in Michigan v. Bryant, which held that a murder defendant’s Confrontation Clause rights were not violated by the admission at trial of incriminating statements made by a shooting victim before his death.
This makes her the justice to watch in criminal procedure cases.
“What is becoming clear … is that Justice Sotomayor is emerging as the swing vote” in criminal cases, said Hashimoto.
Sotomayor’s careful, qualified support of the judgment in Bullcoming, along with her examination of the reliability of the statement at issue in Bryant, reveal a pragmatism to her approach that differs from that of other justices, said Katherine M. Sullivan, a partner in the New York office of Quinn Emanuel Urquhart & Sullivan.
“She spent a lot of time as a prosecutor,” Sullivan noted. “That may be one of the reasons.”
More cases carving out the Confrontation Clause’s protections and limitations are likely forthcoming, particularly given Sotomayor’s qualifying concurrence.
“The Supreme Court will probably almost immediately accept cert [in a case] that raises one of the questions that Justice Sotomayor said they didn’t decide,” Hashimoto predicted.
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