Thursday, March 03, 2011

Impressions of the Bullcoming argument

I attended Wednesday’s argument in Bullcoming v. New Mexico. Recall the facts in brief: The analyst who performed a test on Bullcoming’s blood was on unpaid leave at the time of trial. Instead of presenting his live testimony at trial, the state presented his report through a supervisor from the lab who had not observed performance of the test. Here are some impressions of the argument.

First, the reports of the death of the Confrontation Clause in light of Michigan v. Bryant appear to be greatly exaggerated. The New Mexico Attorney General, Gary King, cited Bryant in the very first sentence of his argument, and referred to it a couple of times later, though he actually tried to distance himself from the case by saying that the purpose test of Bryant did not apply absent an interrogation. No member of the Court seemed to be interested in any possible ramifications of Bryant for this case. Nor did any member of the Court suggest that the report ought to be admissible because it supported an expert opinion offered by the testifying supervisor, as countenanced by Fed. R. Evid. 703. Indeed, King emphasized the lack of human analysis in the report. Nor was there any suggestion that I picked up that any justices were considering overruling Melendez-Diaz.

Second, some of the justices continue to be troubled by the multiple-witness problem. This came up several times in various contexts. It is difficult to know whether they were persuaded by the fact that many states have long followed the rule that if a lab analyst’s report is admitted that analyst must testify in court, absent stipulation, and these states have not faced intolerable difficulties. But I think that enough empirical evidence has now been gathered demonstrating this point that it will be difficult for them to write an opinion predicting disaster if Bullcoming wins.

Third, much of the questioning focused on factual settings not quite like the one presented by the case. The nature of the questioning appeared to be an attempt to determine how states might cope efficiently with a ruling for Bullcoming. In the actual case, the prosecution introduced a report by the absent analyst, which is why this should be, as Jeff Fisher, arguing for Bullcoming, asserted at the outset, an easy case; an exchange between Jeff and Justice Alito clarified that the report asserted the identity of the sample tested, the lack of tampering, the procedures used, and the result. But what if the state had not introduced the report? Some of the justices were interested in the possibility that a witness could testify to a lab’s general procedures, from which the jury could infer that the procedures were followed in the case at hand. Jeff agreed that the Confrontation Clause would not pose an obstacle to doing that. But the problem would still remain of proving the results in the particular case. If, for example, one analyst enters the defendant’s name in a machine and the machine performs the test and spits out a report with the defendant’s name on it, there would still be a testimonial assertion by that analyst that this particular report is the result of a test performed on that defendant’s blood; I don’t believe a second analyst should be allowed to testify, in the absence of the first, that the practice of the lab is to enter accurately the name of the source of the blood in the machine and then perform the test.

But in any event, as I’ve said, that case is not the one before the Court, in which the prosecution clearly introduced a full report by the absent analyst. One possibility is that the Court will simply resolve the case before it, saying that this was a violation, and leave to future cases the development of the bounds of acceptable procedures.

Finally, Justice Kagan was essentially silent. She apparently began to ask one question but was interrupted and did not persist. So that makes any prediction even more speculative, and I won’t speculate.


paul v said...

There is no reason to believe the four M-D dissenters will not vote to overrule that case. Or that Scalia and Ginsburg will vote to overrule M-D.

That leaves Thomas, Sotomayor and Kagan. What do they think of the circumstances in Bullcoming?

What you have in Bullcoming are the following circumstances:

No emergency; Suspect under arrest for DUI; Cop asking government lab (not a particular analyst): "What, if any, alcohol is in defendant's blood?"; Analyst stating (in certified report): "The machine indicated a BAC of .21."

Viewed objectively, do these circumstances establish that the analyst's statement was "procured" by the cop for a "primary purpose" of "creating" an "out-of-court substitute for trial testimony"? (Bryant @ page 11)

The "primary purpose" test being a more specific application of the "resemblance test" endorsed by all of the justices, except for Scalia, Ginsburg and, as of yet, Kagan. (Bryant @ page 11, fn. 4)

Like the situations presented in Bryant and Davis, the Bullcoming case "is nothing like the circumstances presented by Sir Walter Raleigh's trial." (Bryant fn. 4)

There was no "interrogation," as that term is generally understood by laymen: No questioning (rather a singular question); No one-on-one, face-to-face, encounter between an interrogator and the declarant (as in Raleigh's Case, Crawford, Hammon, and, yes, Bryant [albeit on a public street]); No application of coercion by, for example, the declarant being in custody -- him/herself a suspect/coconspirator (Cobham) or a potential suspect (Sylvia Crawford) -- or by conducting structured questioning of the declarant, one-on-one, in a private location (Hammon).

And, because there was no "interrogation" in Bullcoming, the government did not "create" a situation where the declarant had something to gain by telling the questioning, hovering, cops what he/she reasonably thought they might want to hear, i.e., questions that reasonably lead the declarant to believe that, if they fabricate or exaggerate a story that satisfies the interrogators, the government will not prosecute them (Cobham), might go easier on them (Sylvia Crawford), or will leave their home (Hammon).

Absent any semblance of coercion (that, to some extent, exists in the formal, courtroom setting where witnesses are ordered to be present, are under otah, and are subjected to structured questions by a prosecutor who has as his goal the conviction of the accused), the government cannot be said to have "created" the declarant's statement, as a "substitute for trial testimony" or otherwise.

In Bullcoming, there was absolutely no government sanctioned "practice" of interrogating lab analysts ex parte in order to "create" evidence to be used against a suspect at trial, in lieu of live testimony.

In fact, viewed objectively, other than the absence of an emergency, the circumstances that resulted in the analyst's statement in Bullcoming, in many respects, bear LESS resemblance to those present when Cobham gave his statements than those present when Covington gave his statements in Bryant:

Covington (like Cobham and unlike the absent analyst in Bullcoming) was subjected to one-on-one, face-to-face, questioning by numerous cops (all of whom presumably wanted to catch the shooter and start to gather evidence against him). He had a motive (i.e., revenge) to finger his attacker (as well as get medical help for himself), thus, leading to possible purposeful fabrication. (As did Cobham to get himself off the hook. And unlike the Bullcoming analyst who had no motive to lie.) He had nothing to lose by lying to the cops, as he was dying anyway. (As did Cobham who could only improve his situation by telling his interrogators what he thought they wanted to hear. And unlike the Bullcoming analyst who could permanently lose his job if caught lying or fabricating.)

Easy case, indeed.

Anonymous said...

well said paul ... the confrontation clause was satisfied... there was a witness with knowledge of the subject matter on the stand! this draconian view of the confrontation clause is historically and practically untenable

Richard D. Friedman said...

I’ve been traveling, and so have been slow responding. A few relatively brief thoughts:

1. If a laboratory issues a report without attribution of ownership, it is still a statement made by one or more individuals. So if the prosecution wishes to introduce a testimonial lab report, it has to do so through the live testimony of one or more competent witnesses – i.e, somebody who made the statement. The prosecution doesn’t have to present live testimony by, say, the entire lab staff if it just decides to present the report as a statement by one of the authors; redaction might be necessary in that case.

2. Paul V says, “There is no reason to believe the four M-D dissenters will not vote to overrule that case.” Of course there is. Stare decisis means something – maybe not much in the modern world, but still something. If they were going to overrule M-D, Briscoe gave them a chance, and it didn’t happen. Nothing at argument suggested that an overruling was in the offing.

3. Paul also attempts to set up a government coercion test. So absent government coercion any witness can testify against an accused by making a video and sending it in? No chance, I don’t think.

4. Paul is making quite an explicit reliability analysis. Bryant notwithstanding, the Court did not seem interested in doing so at the Bullcoming argument. But we shall see.

5. The anonymous commentator (I am guessing a prosecutor) says that Bullcoming’s view of the Confrontation Clause is “historically and practically untenable.” Frankly, I am mystified how people can continue to make statements of this sort in the face of the plain fact that many jurisdictions have long operated under the basic rule for which Bullcoming asks – if a testimonial statement, including a lab report, is admitted against an accused, the witness who made the statement must testify subject to cross-examination – and have managed just fine.

Richard D. Friedman said...

Another anonymous reader, has made this comment, which somehow seems not to have been posted:


Sort of a tangent, but here is another issue raised by the multiple-witness problem. Say the police send a blood or semen sample ("Sample A") to a big private DNA lab for analysis in order to determine a suspect's DNA profile. I don't know the procedures such labs use, but I would not be surprised if the analyst who actually does the testing may not know, nor care, why a particular sample is being tested (criminal investigation? paternity testing? some other non-criminal investigation purpose). The analyst's ultimate statement would simply be: "This is the DNA profile of the individual whose bio material was contained in sample A." I'm not sure if such a statement standing alone could be called testimonial given that the analyst had no knowledge of why the testing was done. Some other person from the lab would obviously have to know that the sample came from the police. That person's statement would be: "Sample A was sent to us by the police." Again, I don't think that alone would be a testimonial statement. The final report would be a combination of the two statements: "This is the DNA profile of the individual whose bio material was sent to us by the police." While this statement would be testimonial (in my opinion at least), the statement would be the declaration of the lab as an entity more than the declaration of any one person. Can the lab itself be considered a witness for CC purposes, and if so, does the CC require the individuals whose non-testimonial statements make up the substance of the lab's testimonial statement to testify? It seems the line between substantive evidence and chain-of-custody evidence gets blurry.


Here are some thoughts in response:

In most circumstances, I believe, lab techs understand if they are being asked to do an anlysis for forensic purposes. For example, they may be asked to analyze a stain from a crime scene. The manner of collection and presentation would make it quite clear the general nature of what was happening. I’d be curious for comments from readers more knowledgeable than I on this. For instance, it could be that once the DNA is extracted by one analyst a second analyst who then tests it has no idea of the nature of the source; I have no idea whether this is frequently so. Even if it is, the general nature of the business of a lab will usually give an analyst a pretty firm idea of what the evidence is being used for. And if we take Bryant’s purpose-of-the-interrogation model seriously, then the purpose of the officer who asked for the analysis would have to be taken into account, and that would weigh in favor of he report being considered testimonial.

Paul Rosenzweig said...

In any busy lab, I doubt that any analyst can honestly testify to a memory of the handling of a particular sample. The best he can say is "these are our standard procedures we follow and at the time I followed them to the best of my ability." I don't see why the first part of that can't be done by anyone with a supervisory role and I don't see why Confrontation requires testing the second proposition, since it is unfalsifiable (absent a specific memory of the specific test).

As for the testing itself and how it operates -- often the analyst won't know. His job is to put a vial in the system, press a button, and come back in 12 hours to read the result.

I recognize that what I've described is not what happened in Bullcoming. But what would be your thought on a procedure witness and a simple report that said "Bullcoming 0.21 BAC" and nothing more?

Richard D. Friedman said...

Paul Rosenzweig's comment suggests a whipsaw. California v. Green and U.S. v. Owens say, and Crawford reaffirms, that so long as the witness testifies live at trial it's OK to introduce a statement made by the witness even though she doesn't remember the substance of what the statement asserts. The Court said that the failure of the witness's memory tends to undermine the credibility of the witness. I never thought this was persuasive, but that's the law. Now Paul and others are saying that cross is unnecessary in the lab report context because the witness won't remember anyway. It seems to me that the Court has to pick one side or the other, at least in a given context: If it's going to say that delayed cross is good enough because it tends to undermine the witness, it can't say that the accused doesn't get cross because it's worthless. One could say that in this context the Green line should be overruled, requiring cross to be held while the witness still remembers the matter asserted in the statement, but in the context of lab reports the practical problems of such a ruling would be considerable.

In addition, it's important to bear in mind that for several reasons cross-examining a surrogate may not be an adequate substitute for cross of the witness who actually made the testimonial statement that is introduced. For example, the maker of the statement may be an unimpressive witness. There may be problems in her background as to which only she could testify. Depending on the facts of the case and the type of lab report, she might actually have, or claim to have, memory of the particular test. Her typical procedures may differ from thsoe of her colleagues. It's just not so that any witness who knows the lab's procedures is satisfactory.

Anonymous said...

I have no idea what is going to happen in this case. First, the Court could just rule this to be a violation. This makes sense, because surrogate testimony seems opposed to the basic ruling of the M-D Court.

Second, the Court could just put its stamp of approval on surrogate testimony in general. I wouldn't rule out this possibility, because of the strong dissent in M-D, and because most of the district and circuit court decisions since M-D have approved of surrogate testimony, particularly when the lab supervisor testifies in place of the original analyst. In my view, these cases were not correctly decided, but the fact that there are so many of them is worrying.

Third, the Court could take this opportunity to devise a general standard that would allow surrogate testimony in some situations and not others. If all surrogate testimony is banned, a murderer could go free if the coroner has died. But allowing it all would seem to contradict Crawford and M-D. But what would the content of such a standard be? This article, Who Can Testify About Lab Results After Melendez-Diaz?, forthcoming in the American Journal of Criminal Law, has one take on the matter (in addition to a general critique of surrogate testimony):

Anonymous said...

I look forward to seeing the full American Journal of Criminal Law article when it is released. Similar to many comments on this site, it seems the article will suggest an approach specific to scientific evidence and the Confrontation Clause. I submit that a broad, national approach is unnecessary. Why complicate this? Local/State rules governing chain of custody and foundation are already in place (and approved of in M-D footnote), and evidentiary rules governing experts allow a testifying expert to give his own opinion at trial.

Federal and state courts have consistently held that the CC is not implicated when an expert gives his own opinion at trial, regardless of what the expert relies on to reach that opinion.

So, basically: call the witnesses and/or admit the qualifying business records necessary to satisfy local foundation/chain of custody requirements and then call an expert to give an opinion (his own opinion). The expert is subject to cross and compulsory process kicks in if the defendant wants to mount some kind of additional challenge the expert's opinion.

Anonymous said...

That latter point makes even less sense to me. As opposed to an expert who lacks any personal knowledge, somehow a surrogate who at least has some personal knowledge is not enough to get by the confrontation clause problem. Yet, if an expert reviews the materials and, relying on hearsay essentially, opines that the testing was properly done, that is sufficient. Craziness. The best thing would be for the Court to limit M-D to its holding, approve of surrogate testimony so long as it is with personal knowledge of the testing procedures, and testifies and is subject to cross examination. That is all the oonfrontation clause requires.

Anonymous said...

I was not talking about presenting an expert who testifies that the testing was done correctly, which I consider to be a foundational issue, not an expert testimony issue. I was talking about an expert who testifies to his own opinion re: the bigger picture. For example, in a DNA case, that the DNA profile recovered from wherever matches the defendant's DNA profile; or, with medical examiners, that the cause of death was homicide and the manner of death was multiple gunshot wounds.

Richard D. Friedman said...

A few points:

1. I think we need to avoid confounding Fed. R. Evid. 703 with the Constitution. The evidence rule, created in the late 2oth century, is not necessarily constitutional in all its applications. Sure, as a general rule an expert can testify to an opinion even though some of the information on which of the opinion is based has not been admitted into evidence. But that does not mean that the expert should be allowed to testify on the basis of information received in testimonial statements.

2. I suppose it would be possible to prove how a test was done on a particular occasion by proving how it is generally done and leaving it to inference that it was done in that manner on the occasion in question. But:

(A) That is not what the state did in Bullcoming; rather, it introduced a testimonial statement of how the test was conducted, but did not present the witness who made the statement.

(B) The state would still have to prove the results of the particular test. And to the extent that doing so depends on proving the content of testimonial statements concerning the particular case, I don’t think that content can be inferred from general practice.

(C) The particulars that have to be proved – assuming the state can otherwise prove the procedures used (including the lack of tampering) are the identity of the sample being tested and the results. The identity requires a testimonial statement: If the analyst types “Bullcoming” in to the machine, that is an assertion that the sample being tested is Bullcoming’s. If the machine prints out the results, with no further human intervention, the portion of the printout is not itself testimonial. If the machine yields a transient reading, say on a dial or a LED screen, then a recording of that result is a testimonial statement – just as if a witness to an accident telling a police officer, “The traffic light was red” would be making a testimonial statement.

Anonymous said...

What if an experts testifies that he based his opinion on a DNA/autopsy report produced by a nontestifying third-party but the contents of the report is never introduced? For example, an expert testifies that he matched the defendant's DNA profile with a DNA profile produced by a non-testifying analyst from blood recovered from the crime scene, but the expert never discloses what the DNA profiles were. In my mind, there is no out-of-court statement being introduced, so there is no CC issue. Also, wouldn't the defendant forfeit any CC challenge if he elicited the contents of the report on cross-examination.

Anonymous said...

Exactly. It is the USE of testimonial statements at trial that triggers the Confrontation Clause, not the gathering of such statements before trial. If no out-of-court statement is admitted at trial, no CC problem.

Anonymous said...

Practicing in New Mexico, and dealing with the M-D fallout, there is something I should point out. One of the first questions from the Supremes regarded video testimony in lieu of in-person testimony. While that issue may not have to be reached in Bullcoming the Supremes may toss out some indicative dicta on that subject. The state of NM is reportedly setting up a spiffy new video center in the state lab. Even more telling, the AG has planted (I think that is an accurate term) newspaper articles about Bullcoming that argue for video testimony as a way to allay the 'doom and gloom' fears propounded by NM prosecutors. The State (meaning prosecutors and judges) is hot for allowing video testimony in general, not just for expert/scientific testimony, and the issue of what precisely "confrontation" means in that regard will be ongoing.
I should also point out that the case, as many appellate cases do, ignores many of the "real" reasons behind the practices of the State. One is that they hire a "spokesman" to do all their trial testimony -- hiding the fact that the actual lab testers are often underpaid/undertrained. The jury sees a PhD and/or MD on the stand cooing about 'rigourous standards' and CSI sleuthing. I've seen lab techs admit that they wouldn't know if the machine was malfunctioning, wouldn't know where to find the operators manual (let alone ever read it), have not received training on the machines, etc. The State likes to make an implicit argument that just because something is from the State it is presumably 'reliable.' I personally find that laughable.

Richard D. Friedman said...

I think video testimony might become more common over time, and I am sure that in many cases it would satisfy defense counsel; as I've noted in a separate posting, John Collins, Director of the Michigan State Police Lab, tells me that it is prosecutors rather than defense counsel who most often object to video testimony. It may be that over time the Court will be more likely to allow video testimony even over objection. I don't think we yet know enough about the effectiveness of remote confrontation.

Denise said...

The education and knowledge displayed by the analyst is only a function of who hired them. The forensic laboratory testing field is a grossly underpaid and over worked field, and few people recognize it. I work as a lab tech for a private laboratory and recently had my first in court testimony. Honestly, the only thing I could really say was that I followed the operating procedures set by the laboratory. It isn't realistic to ask if I remember a specific sample. I've extracted the same test with over 50 samples a day, for over 2 years. All I ever see about the case is the 11 digit number assigned to it. I have a masters degree, and an inquisitive mind, and know the intricacies of the instrumentation I use, but like I said before it's an underpaid field. Even my company is transitioning to the cheap labor mentality where only a few analysts understand the technology while the others just follow the SOP. I think that laboratories need to make sure that their employees understand how the instrumentation works, how else will you know and understand when one falls from precision?

My Wacky Friends said...

This won't have effect in fact, that's exactly what I believe.