Thursday, June 23, 2011
Bullcoming reversed
The Supreme Court has reversed the decision in Bullcoming, 5-4 per Justice Ginsburg. Right result, too close. That's all I know as of now. I have to speak about the case, and others, in 90 minutes to the state solicitors general, and then I'll be traveling; it may be awhile til I have substantive comments.
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14 comments:
I'm so excited. My mentor litigated this on direct review before Crawford (Crawford came down b/4 direct review was final); I've been litigating it in habeas. So my heart is pounding for one of my clients. Thank you Dr. Friedman.
Sotomayor's concurrence kind of puts a damper on things. Based on that, I'd say a CC challange to FRE 703 would lose.
It does appear that some of the Justices agreed with your amicus. I look forward to reading your substantive analysis when you have time.
The concurrence/FRE 703 issue bothers me as well. Suppose a medical examiner testifies that a death was a homicide caused by poisoning. He bases the opinion on a toxicology report from an outside lab and had no involvement in the analysis. Does Bullcoming require the toxicologist to testify? I'm not sure what is meant by "independent" opinion now.
The concurrence is dead on. Some of the amici tried to turn Bullcoming into something it was not; namely a case about experts relying on the work of other experts to reach their own independent opinions, which are presented live from the witness stand. Prof. Friedman rightly pointed this out in his brief and the Court clearly recognizes the distinction.
As for the hypo where the ME relies on the toxicologist's report, I submit that the CC is not implicated if the report itself is not introduced into evidence. This has consistently been the outcome in similar cases in federal and state courts and, if SCOTUS ever decides to tackle the issue, Bullcoming certainly suggests the same result. There are many cert petitions pending on this issue, and it will be interesting to see if the Court grants one on Monday.
Even if the report an expert relied on is not introduced at trial, it is still evidence used to establish the defendant's guilt. And if the expert has no personal knowledge of the analysis that produced the report, the ability to cross the expert would not provide the defendant with the opportunity to challenge the reliability of the report, and thus, the reliability of the expert's opinion based upon the report. So while one can argue, and SCOTUS will probably eventaully hold, that there is no CC violation because the expert was the "witness" against the defendant, and the defendant was able to cross the expert, that argument is substantively pretty hollow. Sure, the defendant can always call the analysts, but by saying that, you are essentially conceding that you are relieving the prosecution of its burden of proving the defendant's guilt and giving the defendant the burden of proving his innocence.
Do people think SCOTUS will grant cert in any of the FRE 703 cases or is the thought that the cases will be remanded for reconsideration in light of Bullcoming? Seems like remanding would be pointless given the concurrence.
After Melendez-Diaz, there was a mix of cert denials and GVRs. I would expect the same thing on Monday. There are many nuances with these cases (depending on the forensic discipline at issue, what the testifying expert says, and what comes into evidence at trial), so the order list may provide more insight into what the Court thinks about the issue.
The rationale of Illinois courts in allowing the expert to testify based on an outside report is not that the report-maker isn't a witness - it is that the content of the report is not being offered for its truth; just offered to explain the testifying expert's opinion. Therefore, it matters not whether the report is testimonial because Crawford only applies to testimonial statements offered for their truth. It seems pretty artificial to me.
Did the court grant or deny any CC cases based on Bullcoming today (6/27)?
No CC cert petitions granted today from what I have seen.
According to ScotusBlog, the court is holding a conference today on all the cert petitions that were being held for pending decisions, and the orders from that conference will be released tomorrow morning. Looks like 7 cases were on hold for Bullcoming.
All seven of the "Bullcoming" cases in the clean-up conference seem to involve testifying experts relying on the work of other experts to some extent: Turner (drugs); Smith, Barba, Aguilar, Williams (DNA); Dilboy (toxicology); Mitchell (ME-autopsy). Aguilar was a GVR after Melendez-Diaz and is back for Round II.
Cert was granted in an Illinois case on the issue whether an expert who relies on a report of testing done by another to reach an opinion escapes a CC challenge on the theory that the underlying report results are not presented through the testifying expert for their truth.
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