Tuesday, September 28, 2010

Cert grant on the surrogate witness issue

I just realize I didn't post the first part of this message a few hours ago, when I thought I did!

The Supreme Court granted cert today in Bullcoming v. New Mexico, No. 09-10876. This is likely to be a very significant follow-up to Melendez-Diaz, posing the issue of whether forensic lab results may be introduced through a surrogate witness. That is, given that the results must be proved through a live witness, may that witness be an analyst who has no first-hand knowledge about the matters as to which he is testifying?

Here are the following documents in Bullcoming: the cert petition, the state’s brief in opposition to the petition, and the reply brief in support of the petition.

And, while I'm at it, here is a decision of the state same court, issued the same day as Bullcoming, in a companion case, State v. Aragon, 225 P.3d 1280. In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst's opinions. I do not believe the distinction will hold.


paul said...

Humble Prediction:

At least 5 members of the Court in Bryant will define the CC term "witness" along the lines of the "adversarial relationship" test set forth by the Melendez-Diaz dissenters.

The Court will then remand the surrogate witness cases to be evaluated under the new "adversarial relationship" test.

In other words, the "testimonial" approach of Crawford is going to radically altered in Bryant such that far fewer out of court declarants are CC "witnesses."

Richard D. Friedman said...

I don't think it will happen, and it will be very unfortunate if it does.

Anonymous said...

Since in Bullcoming, the report itself was admitted into evidence, it appears to me that SCOTUS is not faced with, or at least does not necessarily have to address, the issue of whether out-of-court statements that are not formally introduced as evidence but are testified to by experts pursiant to federal rule of evidence 703 to explain the basis of their opinion constitutes testimonial hearsay. Or am I missing something?

Richard D. Friedman said...

I believe that's right (though it would be more accurate to refer to "FRE 703 or its state counterparts"). Even where the report is not formally introduced, I think it amounts to the same thing when the in-court witness relays the substance of the report, attributing it to the report. And I think it is also virtually the same thing when the in-court witness relays the substance of the report without attributing it to the report. It's a tougher case when the in-court witness, in forming her opinion, relies on the information provided in the report but does not testify to it.

Anonymous said...

Isn't this a strange case to grant? The question presented in the petition itself seems significantly broader than the New Mexico court's holding, which turned on its conclusion that the non-testifying analyst was a "mere scrivener" who did not interpret the results of the test or exercise any independent judgment. What do you think is going on here?

Richard D. Friedman said...

I tried not to spend a whole lot of mental energy wondering why they granted in Briscoe. (It reminded me of my father's efforts to persuade me that, though I was born more than eight years after my next youngest sibling, I was not an accident. I always figured, well, it doesn't much matter; I'm here, so there's nothing to do but make the best of it.) I'm inclined to try to do the same thing here.

Having said all that -- more than was asked! -- it doesn't seem to me to be a strange case to take. As the comment suggests, the Court could decide this case rather broadly or narrowly. This is as good a case as any to look into the question presented by the petition. I do hope the Court knocks out the "mere scrivener" idea and the New Mexico court's theory that the "witness" was the machine. The witness who was not confronted with Bullcoming -- and without a showing that he was unavailable to be a witness at trial -- is the person whose testimonial assertion as to what he did with the blood sample and what the machine showed was crucial evidence against Bullcoming.

paul said...

I think there are at least four justices who want to (1) use Bullcoming to revisit Melendez-Diaz, and (2) use Bryant to revisit Crawford's interpretation of the term "witness" in the CC. Depending on the outcome in Bryant, the issue in Bullcoming might become moot.

I think these four justices are Kennedy (who wrote the strong dissent in M-D), Roberts, Alito & Breyer -- the later three having joined the M-D dissent. And Alito (in Davis, I believe) having previously questioned the testimonial approach taken in Crawford.

I am certain that Thomas will stick to his formalistic-based theory of the CC.

I am certain that Scalia and Ginsburg will not budge from Crawford's formulation.

That leaves Sotomayor and Kagan in Bullcoming. And Sotomayor in Bryant, Kagan having recused herself.

Keep a close eye on Bryant as it might, once again, alter the Court's interpretation of the term "witness." Although we may end up with a plurality opinion and divergent interpretations of the CC.

The faded parchment lives & uncertainty continues.

Richard D. Friedman said...

Well, whether getting a chance to take another crack at Melendez-Diaz was or was not the reason they took Briscoe, it didn't work there. Breyer made a comment at argument indicating that he was abiding by it, and I think the remand makes clear the Court is not going to revisit this issue, no matter how vigorous the disagreement was.

And let's bear in mind that in his dissent, Justice Kennedy noted (accurately): "The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second."

It was in Giles that Alito questioned the result in Hammon -- though he had joined the majority in it.

I think it is quite unlikely that the Court will do anything in Bryant that will bear closely on the result in Bullcoming. I am hesitant to use the word, but I think the issues in the two cases are orthogonal to each other.

Richard D. Friedman said...

Under another post, a reader asks:

Did anyone else notice the cert petitions for Pendergrass and Bullcoming are identical in large part?
Was there some sort of collaboration to get these cases heard?


My understanding is that local counsel, Susan Roth, was in touch with Jeff Fisher before filing the cert petition in Bullcoming; as the commentator notes and the text suggests, she relied heavily on the petition he had filed in Pendergrass. Jeff will act as lead counsel, and she will continue as co-counsel.

Anonymous said...

While some of the arguments included in the cert petitions in Pendergrass and Bullcoming may be similar, the cases are distinct in several crucial respects for Confrontation/Crawford analysis. The denial of cert in Pendergrass and the grant in Bullcoming suggests that the Court is well aware of these distinctions and that they are taking what I like to think of as an "onion approach" to forensic evidence and the Confrontation Clause. M-D was the first layer they peeled off, now Bullcoming, etc. Pendergrass contained several different layers of the onion, including one that is pretty darn close to the core.

That is why I thought it was "too soon" for the Court to tackle the Pendergrass scenario (to answer a question several months late) and why the grant in Bullcoming makes sense to me.

Richard D. Friedman said...

I certainly agree that Bullcoming is a simple and straightforward case and is a nice one to have as the next inthe line. We have here a full report admitted into evidence through the live testimony of someone who had no role in preparing it and did not observe the events that it reported. The witness whose testimonial statement was admitted was not shown to be unavailable (he was on unpaid administrative leave, but there's no indication so far as I'm aware that he could not have been subpoenaed), and the accused was never given a nopportunity for cross. This really should be an easy case.

Anonymous said...

I disagree that this is an easy case because there is a dispute about 1) whether there is a statement, and 2)(if there is a statement) whether that statement is testimonial.

Rocky Sharwell said...

When I was writing my brief in Florida v. Johnson a few years ago I know that I stole from a Jeff Fisher brief as well as a few others that people were kind enough to share...

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