Thoughts on Bullcoming

Here are some early reactions to the decision in Bullcoming.

1. For the first time in a substantive Confrontation Clause opinion in the Crawford era (I’m not counting Whorton v. Bockting, on retroactivity), Justice Scalia didn’t write. In fact, as the senior justice in the majority, he assigned the opinion to Justice Ginsburg. I don’t know to what extent he felt he had to because he already had an opinion from the sitting. And she had none. But the assignment may reflect his understanding that continued development of the Confrontation Clause requires that it not be perceived as a one-man show.

2. Justice Kagan, although having signed an amicus brief for the Government in Melendez-Diaz, declines to join the four dissenters from that case. That is very good news.

3. Justice Ginsburg treated the case as the simple one that it was: The state introduced a report signed by one analyst (Caylor) without presenting the live testimony of that analyst or of any other witness who could testify at first hand to the matters asserted in the report. Thus, said Justice Ginsburg, “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way.” And for good measure, she cited a passage from Justice Kennedy’s dissent in Melendez-Diaz, saying that the Court’s holding meant that the “analyst who must testify is the person who signed the certificate.”

4. Justice Ginsburg also properly rejects the theory that there was no Confrontation Clause violation because Caylor was a “mere scrivener.” That theory was inapplicable on its facts: Caylor reported what he did as well as what the machine indicated. More fundamentally, as Justice Ginsburg points out, witnesses often report simple factual observations – the color of a traffic light, the number above a door, the speed shown by a radar gun. She asks whether an officer other than the observer could report the observations in court, so long as that second officer could report about any technology used and the department’s standard procedures. “As our precedent makes plain,” she answers, “the answer is emphatically ‘No.’” And again she is able to use a statement from Justice Kennedy’s Melendez-Diaz dissent: (“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.”).

5. As for the state’s contention that the report was not testimonial, Justice Ginsburg noted that the state supreme court had recognized that “Melendez-Diaz left no room for that argument,” and she correctly characterized this conclusion as “inescapable.” This portion of the opinion says that the formalities attending the report “are more than adequate” to characterize it as testimonial. That should not be read as requiring formality for a statement to be deemed testimonial, and footnote 3 of Justice Sotomayor’s concurrence, with the aid of language from her opinion for the Court in Michigan v. Bryant, makes this clear. But Justice Ginsburg treats the matter delicately, presumably because formality was (unfortunately) essential for Justice Thomas’s vote. It is not clear to me why Justice Thomas did not join footnote 6 of the majority opinion, but it is possible that he read it as encapsulating a test without a formality requirement for whether a statement is testimonial.

6. It is also somewhat mysterious why Justices Thomas, Sotomayor, and Kagan declined to join Part IV of Justice Ginsburg’s opinion (leaving Justice Scalia as the only member of the Court to join Justice Ginsburg's opinion in full; this split appears to be between those who are and those who are not opera fans, but I am not sure of the reason). This section addressed the question of the practical burden that the decision might impose on the states. It repeated what the Court had said in Melendez-Diaz, that this burden does not alter the constitutional rule; it cast doubt on the extent of the burden created, and it suggested some ways – including retesting and notice-and-demand statutes – that might limit the burden. Perhaps the three justices thought that most of this Part was unnecessary for decision and so should not have been included.

4. Justice Sotomayor clears up some of the uncertainty that arose from the reliability language in her Bryant opinion – at least to the extent of making clear that the language should not be accorded very much impact. Justice Kennedy’s dissent says that in Bryant the Court ruled that reliability is “an essential part of the constitutional inquiry” under the Confrontation Clause. Justice Sotomayor says in her concurrence that, “[c]ontrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be ‘relevant,’ not ‘essential.’” It’s not entirely clear what that sentence means (Justice Kennedy had said that reliability was an essential part of the inquiry, which is different from saying that reliability (or its negation) is essential to a determination that a statement is not (or is) testimonial), but the next sentence asserts a basic distinction underlying Crawford: “The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore require confrontation.” I suspected that the reliability language in Bryant was inserted at the instance of Justice Kennedy, and Justice Sotomayor’s treatment of it here seems to support that supposition; I’m hoping that Justice Sotomayor does not speak of reliability in the Confrontation Clause context again.

Justice Sotomayor does clearly mean something by her reference to hearsay rules. She repeats language from Bryant that in determining primary purpose for deciding whether a statement is testimonial under the Confrontation Clause hearsay rules will be relevant. But the language is capable of being understood as saying no more than that some hearsay rules carve out categories of statements that are not intended primarily for litigation and so are not testimonial. To a large extent, I agree. I believe many of the hearsay rules have grown up conforming to confrontation principles – that is, statements made with litigation in mind have tended to be excluded, and others have tended to be admitted. But this description of reality should not be taken as prescription – that is, simply because a statement fits within a hearsay exception as that exception has come to be construed does not mean that it is not testimonial. Melendez-Diaz should have made this clear.

7. Just who is it that must testify subject to confrontation under the Court’s holding? At one point, the Court says that it is “the analyst who made the certification,” but a couple of sentences before the Court says the question is whether a report containing a certification may be introduced “through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” I think actually the “observe” part is, or should be critical (recognizing that one who performs a test necessarily observes (through one or more of the senses) performance of the test. First, observation is sufficient: Analyst B could properly testify, “I observed everything Analyst A did, and her report is an accurate rendition of what I observed.” (I do think that in a case of this sort, the defense would be entitled to an instruction that the jury should not put any weight on the credibility of Analyst A.) That is particularly important in autopsy cases, in which it is standard procedure in some jurisdictions (and probably ought to be standard in all) to have a second medical examiner in the room. Second, I believe observation is necessary. It should not satisfy the Confrontation Clause, for example, if A performs a test, writes up a report but leaves it unsigned, and then passes it on to B, who did not observe the test but who signs the report and then testifies in court to its contents. In other words, I believe the Confrontation Claus necessarily incorporates a personal knowledge requirement.

8. Justice Sotomayor includes a section indicating the limited nature of the holding. She points out that the report had no purpose other than use in litigation, and indicates that it would be a different matter if the report was necessary to provide medical treatment. I think this example (which the Court has touched on before) indicates one of the problems with the “primary purpose” test: Some reports made in the clear anticipation of evidentiary use can also be justified on medical grounds, and it may be easy for the reporter and the prosecution to persuade a court that the primary purpose was medical.

Justice Sotomayor also points out that this is not a case in which the in-court witness “was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” The good news there is that she appears to recognize that if the underlying report is admitted into evidence and it appears to support the opinion of the in-court witness only to the extent it is true, then the author of the report should be deemed to be a witness subject to confrontation; saying that the report is being used only to support the opinion of the witness in court cannot be used as a talisman to avoid a confrontation problem. But what if the underlying report is not introduced into evidence? Justice Sotomayor points to Fed. R. Evid. 703 as supporting the proposition that an expert may base an opinion on facts or data not themselves admissible into evidence if they are of a type reasonably relied upon by experts in the field. But it must be remembered that Rule 703 is not a rule of historically long standing; it is a creation of the late 20th century, adopted with no sensitivity to the confrontation right. A concern is that the in-court witness’s testimony may be another way of packaging and transmitting to the jury the testimonial statement made by the out-of-court witness. This strikes me as a difficult issue, and we should not assume that Rule 703 states a principle of constitutional law. But I suspect that one of the next attempts to evade the impact of Melendez-Diaz will be to have the in-court witness express an opinion that has somewhat more content than the written report, and then argue that the report was merely one input that led the in-court witness to reach her opinion.

Finally, Justice Sotomayor suggests the possibility that a state could, “assuming an adequate chain of custody foundation,” present the printout from a machine. Maybe so, but the authentication would be difficult without a live witness. The person typing in, say, the suspect’s name may be making a testimonial assertion that the sample about to be tested is that of the suspect. So the printout is not completely “raw.”

9. Obviously, I don’t think much of Justice Kennedy’s dissent. I think Justice Ginsburg is right that the dissenters are objecting more to Crawford and Melendez-Diaz than they are to the application in this case. He insists, as noted above, that reliability is “an essential part” of the inquiry under the Confrontation Clause, which clearly flies in the face of Crawford – I don’t think he could reasonably contend that reliability makes a statement non-testimonial. Indeed, he explicitly uses the “indicia of reliability” standard that was the hallmark of Ohio v. Roberts. And he says quite explicitly that what he perceives as “trouble fashioning a clear vision” of Crawford’s meaning is “symptomatic of a rule not amenable to sensible application.” (Of course, one of the opinions that he cites as showing a range of interpretations is the majority opinion in Bryant; eliminate that one, and a good deal of confusion would disappear.) We should bear in mind that Crawford was a transformative decision and it is only seven years old; it is not all that surprising and not at all disturbing that the law remains unsettled. Justice Kennedy makes no attempt, so far as I can tell, to argue that the certificate here was not testimonial (he lost that battle in Melendez-Diaz) and the weight of his opinion seems to be to show that insisting on the testimony of the only analyst who observed the test is a “hollow formality” not worthwhile because (a) it will not produce much useful information; (b) the costs of requiring that analyst to testify live are oppressive; and (c) surrogate testimony is a pretty good substitute. As in Melendez-Diaz, the majority’s response to each of these is, in effect, “Irrelevant, and not true in any event.”

In a passage that I believe expresses what has been a particular concern of Justice Breyer, the dissent says, “In cases like Melendez-Diaz and this one, the Court has tied the Confrontation clause to 18th century hearsay rules unleavened by principles tending to make those rules more sensible.” That’s an odd statement, given that a major point of Crawford was to divorce confrontation law from the rules against hearsay. I think a more accurate statement would be this: During the two centuries following adoption of the Confrontation Clause, courts lost sight of the confrontation right, relying instead on an increasingly amorphous hearsay rule to do the work that an independently articulated confrontation right should have done. Accordingly, in the 20th century, some jurisdictions made the judgment, which seems pragmatically sensible only if one gives no independent weight to the right, that a prosecutor could present the results of a forensic lab test without producing a live witness who had observed performance of the test. But if one recognizes that the right is independent of whatever hearsay rules a jurisdiction might adopt, and that it is a rule governing the procedures by which prosecution witnesses give testimony, insisting that (absent stipulation) testimony be given live in the presence of the accused, then the results in Melendez-Diaz and Bullcoming become quite obvious.

I thought the majority opinion in Melendez-Diaz was a great one, and that the dissent by four justices showed a disturbing lack of understanding of what the confrontation right is all about. I have much the same feeling about Bullcoming. Right result, properly reasoned, but one vote away from an abyss – avoided only because the statement was a formal one, so that Justice Thomas’s vote was not lost. And with the dissent’s endorsement of using reliability – and even the old “indicia of reliability” formulation – as a test for applying the confrontation right, and its suggestion that Crawford can’t be made to work, the divide seems even starker than before.