The Constitution gives us the right to confront our accusers in a criminal case. In practical terms, this means that witnesses offering testimonial evidence against us in a criminal case must appear in court and be subject to cross-examination. The rule is the subject of much legal argument and a number of exceptions (such as whether the evidence is testimonial, whether the witness is available, and whether there has been a previous opportunity to cross-examine the witness). In the recent case of Bullcoming v. new Mexico, 09-10876 (U.S. 6-23-2011), the U.S. Supreme Court, reversing the Supreme Court of New Mexico, held that a forensic lab report in a DWI case was subject to challenge under the Confrontation Clause and inadmissible when the lab technician who created the report did not testify.

In the Bullcoming case, the State at a DWI  trial introduced a forensic laboratory report to prove the Defendant’s blood-alcohol concentration. The Defense objected that the forensic analyst who completed and signed the report was not presented for cross-examination. Instead, the State presented another analyst who was familiar with the testing device and procedures, but had not participated in the test on the Defendant’s blood. The trial court admitted the report. The New Mexico Supreme Court upheld the decision, reasoning that the analyst who did testify satisfied the Confrontation Clause requirements.

The U.S. Supreme Court rejected the argument that the comparative reliability of another analyst’s testimony could satisfy Confrontation Clause requirements. The other analyst, who was not present for the testing, could not convey what the testing analyst knew or observed about the specific forensic test that was performed. The report was testimonial evidence, prepared to prove a fact in a criminal proceeding. Absent the certifying analyst’s testimony, it should only have been admitted if the State could first show that the certifying analyst was unavailable and the Defendant had a previous opportunity to cross-examine him.

For more information on evidentiary challenges under the Confrontation Clause, contact The Lanzon Firm.