US Supremes Expand Crawford/Melendez-Diaz

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Bullcoming v. New Mexico, 22 Fla. L. Weekly Fed. S1213 (Mar 2, 2011): Writ of Certiorari Granted – J. Ginsburg delivered the opinion, Concurring opinion by J. Sotomayor, Dissenting opinion by JJ. Kennedy, Roberts, Breyer, and Alito.  New Mexico law allows a forced blood draw if a person refuses to blow into the breath machine.  The Defendant refused and the the blood was drawn.  It was analyzed by Curtis Caylor but on the day of trial Curtis Caylor was, for unknown reasons, on non-paid leave.  So the state used Gerasimos Razatos, who also worked at the lab where Caylor worked, to introduce the report as a business record.  This was done over defense objections.  The report was not a “sworn” document.

The question answered by the Court is “Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification. . .”

“Our answer is in line with controlling precedent: As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.”  The New Mexico Supreme Court held surrogate testimony adequate to satisfy the Confrontation Clause in this case because analyst Caylor “simply transcribed the result generated by the gas chromatograph machine,” presenting no interpretation and exercising no independent judgment.  Recognizing that admission of the blood-alcohol analysis depended on “live, in-court testimony by a qualified analyst,” the New Mexico Supreme Court believed that Razatos could substitute for Caylor because Razatos “qualified as an expert witness with respect to the gas chromatograph machine and the SLD’s laboratory procedures,” But surrogate testimony of the kind Razatos was equipped to give could not convey what Caylor knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the certifying analyst’s part. Significant here, Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave.  Bottom line, “[a] document created solely for an ‘evidentiary purpose’ . . . made in aid of a police investigation, ranks as testimonial.”

Good case and is a must read for Crawford analysis.

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