States' amicus brief in Bullcoming

Thirty-three states and the District of Columbia have filed an amicus brief in Bullcoming. You can read it by clicking here. And here are some comments by me.

The brief is well-written. (Mike Chamberlain of the California Attorney General's office took the lead in writing it.) But in large part it is one more installment of the states' continuing effort to show that the consequences of fully adhering to the confrontation right would be intolerable. For that reason, it is particularly striking to me that the only times the state of Michigan is mentioned are to indicate that Michigan is one of the signing amici. The brief makes no attempt to address the data I have presented on this blog and discussed in my amicus brief showing that, though Michigan does adhere to the right in respects material to this case, no intolerable burden has resulted.

One might therefore ask a question that Justice Alito asked me at the Briscoe argument – "If this is not a burden on these . . . States plus the District of Columbia, why are they bothering to make this argument? Just for amusement?" I think the three-part answer I gave then still holds. First, a certain amount of solidarity encourages states like Michigan, which do not have a strong interest vested in the outcome of this case because they already comply with the rule demanded by the petitioner, to join with other states. Second, of course there is some additional expense in complying with the right, and the states would rather not be compelled to incur it. And third, they probably recognize that in some cases producing witnesses whom they would rather not produce will lead to evidence favorable to the defense.

Here are some comments on individual points in the states' amicus brief.

On p. 13, the brief says, "When scientific evidence is presented as an independent opinion formed by a qualified expert witness . . . that opinion is the evidence and that expert is the witness for purposes of the Confrontation Clause."" Obviously, the expert opinion is evidence – but so too is the factual information on which the opinion is based. And a statement reporting such information, made in anticipation that it will be used in support of prosecution, is testimonial.

On p. 14, the brief says: "Empirical data or observations underlying a conclusion . . . are distinctly non-testimonial, whether or not transcribed into a report." Data and observations are not testimonial. But a report of them is, if made in anticipation of prosecutorial use. The idea a report of pure information is less likely to be testimonial than is an opinion is very curious. What does an ordinary lay witness report? The information (data) that she has observed. It might be as simple as, "The light was red." We want pure data from lay witnesses, to the extent possible. That does not make their statements non-testimonial. The idea that factual assertions in the lab context are somehow beyond the concern of the Confrontation Clause appears to reflect a Roberts-style assessment of the reliability of the evidence.

On p. 16, the brief says that the data that underlie an opinion "will be meaningless to a layperson without the expert’s explanatory conclusion." True enough, often. But then it adds that the data "thus should not be considered 'testimonial.'” Taking into account once again that data are not testimonial, but a report of them can be, the conclusion does not follow. The brief offers an analogy to cases holding that the Bruton rule doesn't apply to an out-of-court statement that is not “incriminating on its face,” but becomes incriminating “only when linked with evidence introduced later at trial.” But these are not cases about what statements may be admitted against an accused; the point of Bruton is that the statement in question can be admitted against one defendant but not against another, and sot he issue is whether, or in what circumstances, the statement may be admitted in a joint trial and a limiting instruction will be a sufficient safeguard.

On p. 17, the brief says that raw data are just “premises for a conclusion” – OK – and that “[t]he conclusion invariably draws upon still other premises to become ‘evidence.’” That’s just playing with words. In all sorts of evidentiary contexts a conclusion depends on multiple evidentiary premises. Of course, the data are the case-specific pieces of information that make it possible to reach an opinion.

On p. 18, the brief says that “instrument-generated data are not witnesses. An instrument is not a person and cannot bear testimony.” True but irrelevant. Just as the data are not themselves testimonial, an instrument is not a witness. But it takes a witness to say what the machine did and how it came to do that. More than that – in Bullcoming the state presented a statement by the absent analyst saying those things – what test he performed, how he did it, and what the results were. That was a testimonial statement.

On p. 21, the brief tries to equate case-specific data with “the academic body of scientific knowledge upon which expert witnesses also rely for their opinion evidence.” It points out that “[s]cientific evidence is the product of collective and cumulative knowledge from an amalgam of different sources” and that an expert may offer opinions not based on first-hand observation. But assertions of scientific knowledge are not ordinarily testimonial. An assertion by a forensic laboratory technician about the alcohol content of a blood sample referred by the police for testing are very different. Similarly, on p. 22 the brief points out that in using a statistic as to how rare a given DNA trait is an analyst “must rely on many out-of-court statements of other persons . . . .” But those statements aren’t testimonial.

On p. 22 n.5, following Justice Kennedy in Melendez-Diaz, the brief says that it is not always easy to determine who “the analyst” is. As I pointed out in my amicus brief, I think this is the wrong question. Here, there was a statement introduced against the accused. If that statement was testimonial in nature – as I believe it was – then the author is a witness against the accused as to whom the confrontation right applies. For this reason, I think Bullcoming is a relatively simple case.

Beginning on p. 23, the brief discusses Fed. R. Evid. 703. It may well be that certain applications of that Rule are unconstitutional. That would not be amazing. This is not a long settled rule; rather, it is a creation of the late 20th century. But the Court doesn’t have to reach such questions here. The prosecution introduced a testimonial statement (the state court concedes it is testimonial) and the accused never had an opportunity for cross. Easy case.


Beginning on p. 26, the brief discusses “well-developed rules of evidence . . . designed to facilitate reliable scientific testimony.” This can’t add anything to the other arguments: If the statement is testimonial, Crawford makes very clear that – however useful other protections may be – there is no constitutional substitute for an opportunity for confrontation.