Wednesday, January 26, 2011

"Pure Cold Case" Prosecutions & The Confrontation Clause: What Does The Future Hold?

Paul Vinegrad has asked me to post the following, under the above heading; it is too long to fit in this blog as a comment. I’m glad to do so, and offer my comments after Paul’s post.

Prof. Friedman, could you provide an analysis of the following scenario and commentary on my suggested formulation:

An NYPD DNA expert (X) writes an unsworn report. In the report, X states that on January 1, 2011 she responded to a crime scene. There she observed a naked female, face down, dead with a cigarette butt on her back. She collected the cigarette butt and brought it back the the NYPD lab. She processed the cigarette butt, following the lab's standardized procedures for processing evidence for DNA, and extracted a tiny amount of saliva. She used the latest available scientific techniques and equipment. Her testing procedures resulted in raw data – graphs, charts, etc. (i.e., a DNA profile). She used her expertise to interpret the DNA profile. And reached the opinion that the DNA profile was from a male Caucasian. The tiny test sample was consumed during the testing process. X then entered the DNA profile into a nationwide DNA database.

30 years later, X died in a car accident. As of that date, NYPD had not yet identified a particular suspect, i.e., they didn't have "reasonable suspicion" to detain anyone, or "probable cause" to arrest anyone, there were no "hits" from the database.

10 years later, an NYPD DNA expert (Y) was notified that there was a "hit." And the defendant (Mr. Z) was identified as the suspect. Y obtained a blood sample from Z. He then determined Z's DNA profile. In Y's opinion, Z's DNA profile "matched" the DNA profile of the saliva, i.e., in Y's opinion there was a statistical match probability of 99.9%.

At trial, would the CC prevent the prosecution from introducing the following evidence (assume that there are no other constitutional or evidentiary hurdles to admissibility):

(1) The raw data establishing the DNA profile of the saliva?;

(2) Y's expert opinion testimony (based upon a review of X's report – the substance of which is not disclosed to the jury – and his own expertise) that (A) the DNA profile of the saliva "matches" Z's DNA profile; (B) the DNA profile of the saliva was accurate/reliable because X was qualified and followed all proper procedures?; and

(3) X's entire report setting forth her expert opinion that the DNA profile of the saliva was that of a male Caucasian?

For what is worth, I believe that X was not a CC "witness," and, therefore, all of the above evidence would overcome a CC objection. I believe that at least four justices in Bullcoming (and, perhaps, in Bryant) will redefine CC "witnesses" in a manner consistent with the following formulation:

Persons (who have personal knowledge of the crime allegedly committed by the defendant) who make out-of-court statements (i.e., an assertion of fact by a human being) -- whether testimonial or nontestimonial (under any of the three formulations in Crawford) -- and whether sworn or unsworn, are not CC "witnesses" unless each of the following requirements are met: (1) a government official (or their agent) responsible for the investigation and prosecution of crime, (2) by some affirmative action (i.e., questioning, "interrogation," etc.), was involved in the production of the particular statement, (3) at a time that an "adversarial relationship" existed between the government official (or their agent) and a particular person (i.e., at the time the statement was produced, the government had "reasonable suspicion" to detain (or "probable cause" to arrest) a particular person for criminal activity, and (4) viewed objectively, from the perspective of a competent adult in the position of the declarant, the declarant knew that they were providing a statement against someone.

The third element of this test replaces the "primary purpose"/"ongoing emergency" formulation set forth in Davis. Under the "adversarial relationship" element, once "reasonable suspicion" to detain (or "probable cause" to arrest) exist, it will be conclusively presumed that the government's "primary purpose" was to create evidence for possible use in a future criminal trial. Before the government has "reasonable suspicion" to detain a particular person, they have no motivation whatsoever to manipulate or manufacture evidence against that person by means of coercion, trickery or otherwise. However, once the "reasonable suspicion" threshold has been crossed (a determination that courts have routinely been making for Fourth Amendment purposes since Terry was decided) the police have a motive to start to build their case against the suspect. With that motive comes the distinct possibility that the reliability of the resulting evidence, and the truth-seeking adversarial process the CC is designed to protect, will be compromised.

The formulation that I set forth is entirely consistent with all of the Court's CC cases, before and after Crawford, including Melendez-Diaz as the "analyst" in that case didn't have any personal knowledge regarding the defendant's crime.

While the Framers didn't have to consider the constitutional ramifications of "pure cold case" prosecutions involving unavailable expert DNA analysts, the formulation that I have set forth is a "reasonable estimate" – as "reasonable" as any other estimate given the absence of any direct historical evidence – of how they would have treated these cases, at least under the CC.

If Giles's forfeiture doctrine would have been broader then, at least in "pure cold case" murder prosecutions, the Court would not be faced with the constitutional question that I raise. In Bullcoming (indeed, in Bryant) the Court has the opportunity to revisit the scope of the term "witnesses" in the CC. It is evident the framing-era historical record does not provide a clear cut answer. Any solid historical evidence that does exist lends itself to more than one "reasonable" interpretation of the original meaning of this text. Thus, policy considerations which are consistent with the truth-seeking purpose of the CC come into play. Four justices in Melendez-Diaz have voiced their dissatisfaction with the "testimonial" approach set forth in Crawford. It appears as though Justices Sotomayor (in Bryant and Bullcoming) and Kagan (in Bullcoming) might be the swing votes and might be instrumental in moving CC jurisprudence in a new direction that, in the absence of clear historical guidance, focuses more heavily on the practical, real life, impact of the constitutional rule on the lives of all Americans, not only the accused.

Criticisms, critiques and alternative formulations to the one I set forth above are welcome.

I will continue to avoid predictions, but I do think that Paul’s formulation would severely impair the confrontation right. It seems to be one more attempt by prosecutors (here a former one) to devise rules that would under cut down on the right and, to a substantial extent, nullify Crawford. (Having said that, I do continue to believe that the decision in Giles was most unfortunate.) I really wish all that mental energy went into seeing how those states that have routinely violated the confrontation right could efficiently bring themselves into line with states that have a good compliance record.

I’ll also say as a prefatory matter that yes, sometimes in long-delayed cases prosecutions are lost because by the time the prosecution is brought a crucial witness who has not been subjected to cross-examination is no longer available. This is a cost of our system that we have been tolerating for 500 years or so.

Paul has put forward before the idea that a statement is not testimonial unless a government official is involved in producing it. I think this is a non-starter, for reasons I’ve indicated before. It conflicts with historical practice; it’s important to understand that the confrontation right long predates the institutions of public prosecutors and police forces. The Court has already made it clear that volunteered statements, not made in response to interrogation, can be testimonial. If Paul’s suggestion were taken, there would be an army of private statement-takers who would enable witnesses to avoid confronting the accused.

Paul now suggests that for a statement to be testimonial there has to be an identifiable suspect before the statement is made. (I’m not sure whether in his view the suspect at the time of the statement has to be the ultimate accused.) I’m not sure where he gets that – so far as I know there is no historical basis for it. If adopted, this idea would distort police behavior; it would encourage police to avoid focusing on a suspect – and being in a position in which they could at least somewhat credibly contend later that they had not focused on a suspect – for as long as possible so that they can gather incriminating evidence. And the consequences of this idea would be stunning. Paul seems to acknowledge that, for example, a witness describing a crime scene would not be covered by the confrontation right. But more than that – nobody who made any statement in the 40 years between the crime and the time that the cold hit was made would be considered a witness against the accused for Confrontation Clause purposes – even if the statement was made to the authorities in the full hope and expectation that eventually it would be used as evidence at trial against the person the authorities identified as the killer. (This would include the victim if she made a statement describing the crime and giving a general description of the accused.) As a matter of principle, there is no justification for decimating the Clause in this way. The optimal rule is actually pretty simple. A person is a witness for purposes of the Clause if a reasonable person in her situation would realize that her statement would likely be used in investigating and prosecuting a crime. And if her testimonial statement is introduced against an accused, that makes her witness against the accused for purposes of the Clause.

What can the state do to minimize the danger of losing lab evidence if the there is a substantial chance that the case will not be tried for many years? Preserve some of the sample for retesting; Paul’s hypothetical is becoming increasingly unrealistic with improved DNA methods. If the case is important, have a second observer, as some jurisdictions routinely do for autopsies. Sometimes videotaping the testing might help. An extreme response – one of dubious constitutionality, but one with precedent and preferable to cutting the Clause down so close to its core – would be to appoint counsel shortly after the test for the as-yet unidentified suspect to depose the analyst; sometimes, notwithstanding the lack of identifying information at the outset, the interest of the ultimate accused is clear from the start.

Thursday, January 20, 2011

Two more bottom-side amicus briefs in Bullcoming

In addition to the brief of 33 states and the District of Columbia, which I earlier posted, two other bottom-side amicus briefs were filed in Bullcoming. You can read the brief of the National District Attorneys Association and other organizations by clicking here, and the brief of the New Mexico Department of Health Scientific Laboratory Division by clicking here.

There is also one loud silence -- for the first time in the Crawford line, the United States Solicitor General did not file in support of the state.

Michigan – a state that does it right.

Last month, shortly after I posted results of the study of Michigan trial transcripts done by students under my supervision, Mark Dwyer, the long-time and very capable Chief of the Appeals Bureau in the District Attorney's Office and a regular reader of this blog, asked:

If your reports let you answer, I think it would be interesting to know in how many of the DNA cases the witness or witnesses who testified were present at every stage of the DNA processing. I suspect that this would be a rare circumstance. Have you a view on whether one lab witness "familiar" with the testing will suffice, if he or she was not present at every stage?

I responded:

An important question. For now, I'm going to stick with the comments I made in footnote 9 of the amicus brief I just posted. I hope to have more to say next week.

So far as what I think should suffice, I will continue at least for now to stick with the comments in my brief. But I can add more about the Michigan practice because I have spent some time with John Collins, director of the Michigan State Police Forensic Science Division. (I met with him shortly after Mark posed his question, which is why I hoped to supplement my answer before this, but I haven’t gotten around to doing it until now.) I am delighted to say that, though he is a Michigan State guy, John strikes me as a very capable, dedicated, and thoughtful public official, and he clearly believes that his labs are able to comply with constitutional requirements without having to bear an undue burden.

So, in answer to Mark’s question, no, ordinarily there would not be one person who observed every phase of DNA testing. But ordinarily, according to John (who graciously consented to allowing me to report on our conversation), there are no more than three lab technicians who perform work on a given sample. So the prospect of having to present a nearly endless chain of witnesses to introduce the results of one DNA test is really a strawman for the Michigan state lab, given the degree of vertical integration that it uses to conduct these tests. If in a given case all three analysts were required to testify live, John says they would do so without question. If in all cases all three were required to testify, it would indeed create a heavy burden on the lab as currently funded. But this doesn’t happen. Recall that the data in my amicus brief show that on average even in DNA cases that go to trial only 1.25 lab witnesses testify. For all the fears expressed by the Melendez-Diaz dissenters, the reality is that even for a complex test like DNA matters have settled down so that the number of witnesses who have to testify is quite reasonable.

It also bears emphasis that the reason why as many live witnesses testify as do is attributable at least in large part to the demands of the prosecution rather than the defense. That is, often the prosecution wants its technical witnesses to testify live, to make a vivid impression. (To put it bluntly: When prosecutors want lab witnesses to testify live, they do so, and no controversy arises; when defendants want lab witnesses to testify live but the prosecutor doesn’t, or can’t produce the witness, the prosecutor (in states unlike Michigan that before Melendez-Diaz did not follow proper procedures) complains about how burdensome the production is.) One piece of information I learned from John strengthens this point: Michigan has developed facilities for lab technicians to testify, on consent of the parties, by remote video. John is obviously interested in fostering this practice. He reports that it is the prosecutor rather than the defense that most often is unwilling to allow this cost-saving convenience.

John did express concern on one point: Too often, he said, defense counsel refuses to stipulate to presentation of a lab report until the witness appears ready to testify; then, counsel, (1) recognizing that the prosecution is able to present the witness live and (2) not really wanting live testimony, stipulates to admissibility of the report. I don’t believe John has any data on how often this happens, and it clearly is not a debilitating problem. But it does seem to me that the problem could be cured by a simple statutory fix: If the defense declines a pre-trial request to stipulate to admissibility of the report (or, in those states having a notice-and-demand statute, makes a demand), it must assert that it does not intend to stipulate to admissibility of the report if the witness appears at trial ready to testify. There are some statutes that require the defense to assert that it is making the demand in good faith or that it intends to cross-examine. The first of these strikes me as too vague and the second as too demanding; perhaps the defense wants to see what the direct testimony is, expose the witness to the trier of fact, and only then decide whether to cross-examine or not. But a statute that says in effect that if the defense demands confrontation it must really want that the witness testify live and not merely that the prosecution be put to the test of bringing the witness to court seems entirely reasonable to me. And I think it would greatly reduce this problem, however significant or insignificant it might be: A defense lawyer will not want to have to explain very often why it belatedly decided to stipulate to admissibility of the report after declining to before. And I suppose if this isn’t good enough a state could adopt an even stronger statute, providing that if the defense declines a timely request to stipulate (or makes a timely demand), and the witness appears at trial prepared to testify live, the court must call the witness to give live testimony.

Wednesday, January 19, 2011

Machines and human witnesses

Paul Vinegrad has posed a question to me as a comment to an ealrier post. It’s sufficiently interesting that I’ll answer it here. Paul’s question:

Prof. Friedman, your thoughts on the following hypothetical would be illuminating:

Cop arrests suspect for DUI. Cop takes suspect's blood sample to government run lab. Cop watches as analyst places blood sample in gas chromatograph. Gas chromatograph prints out result of .21 BAC. Cop takes print out and leaves.

At trial, Cop describes this sequence of events. Cop identifies print out. Print out is marked as an exhibit and introduced into evidence to prove defendant's BAC was .21. Cop does not offer any opinion on accuracy/reliability of print out.

Did any human "witness" make a "statement" (testimonial or otherwise) that defendant's BAC was .21?

My answer is that, with one caveat discussed below, there is no human witness that the BAC is .21. What we have is a witness to a process that generated the identified piece of paper.

If instead of this test, it were a simple litmus paper test, and the witness identifies a particular piece of red litmus paper as the one that was dipped in a particular solution, and says it is now the color that it was after it was dipped in, I don’t think there’s yet been an assertion by a human witness that the solution was acidic. One can infer that proposition by understanding the processes that led to the red color.

Now of course the case Paul presents is different in that humans presumably created and calibrated the machine. But presumably that all happened before the particular testing. Even if one could discern a human assertion there, it’s harder to discern an assertion about the particular sample, and I think Melendez-Diaz suggests pretty strongly, for better or worse, that an assertion at this point wouldn’t be considered testimonial.

The caveat is that it is theoretically possible that somebody purposely set the machine so that it would report a BAC of .21. If so, I’d say that’s an assertion, made by a human through a machine – just as one might use a machine to broadcast his voice. But I think the burden would be on the defendant to produce evidence of this kind of manipulation.

The most difficult question here is one of relevance, or probative value: Is there enough of a basis for the trier of fact to conclude that because the piece of paper says .21 that in fact the blood alcohol content of the sample tested was .21? Compare this to a witness who says that when a robbery occurred the digital clock on the top floor of the bank said it was 1:45. In a case like that, I don’t think we’d demand proof as a precondition to admissibility that the clock was accurate, at least if the evidence is significant even without pinpoint accuracy; the jury could probably infer that the clock was likely reasonably accurate or it would’ve been corrected. (Though in my town there is a prominent digital clock, right where cars pull off a main road into one of the malls, that has been slow by about four minutes for many years). Of course, the prosecution might choose to supply such proof on its own initiative, and the defense may challenge the accuracy of the clock. But in this case, assuming the cop isn’t familiar with the machine from other encounters, is there enough of a basis for the trier of fact to infer that the machine is reasonably accurate? I don’t know. Certainly the prosecution would be better off presenting proof of accuracy. But I don’t think failure to do so is a confrontation problem.

Monday, January 17, 2011

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.

Tuesday, January 11, 2011

Justin McShane on the state's Bullcoming brief

Justin McShane of Harrisburg, PA, has attempted to comment on the State's brief, but each comment is limited to about 4000 characters, and he had more to say than that, so I'll post his comments here. I hope to add my own comments tomorrow, but meanwhile here is what Justin has to say:

Disclosure: I was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Here is my analysis of the Respondent’s brief:

1. They spend in an inordinate amount of time trying to explain how GC EtOH determination is non-testimonial. (This is an argument that at least a majority (if not all) of the sitting justices at the time of M-D rejected in the case of GC-MS. For example, the least favorite fan of M-D in J. Breyer even states that such analysis is testimonial, he just believes that the application of the Confrontation Clause is situational— that lab reports are sufficiently reliable— and if the Confrontation Clause does not yield to “practical realities,” then the system may be over-taxed.)

1.1 They try to rationalize that this method of analytical measurement and testing was not made for the primary purpose of litigation in criminal court. (Why else was it analyzed?)

1.2 Failing that they try to say somehow that if it is unsworn and not in an affidavit that somehow it being “less formal” that the right to Confrontation based upon its contained assertions is not guaranteed. (Perhaps this meant to appeal to Thomas’s opinion of concurrence in M-D.)

1.3 If that fails, then they urge the Court to roll back to 1986 in Inadi (and really back to Roberts in 1980) in favor of the subjective “sufficient reliability” test and abandon the Davis rule (which they may do any way in Bryant), in favor instead of a notion that the applicable test should be whether or not it was generated in substitution of live testimony, then it would be testimonial (which begs the question that how does the particular facts in Bullcoming dictate a result of it being anything other than testimonial even if we now use this rationale which they urge to be adopted?)

1.4 But why stop to 1986 or even 1980, they next argue. Let’s go all the way back to the bail statute of 1554 and argue that Confrontation only applies to pre-trial ex pate judicial examinations of a witness in lieu of the witness’s appearance at trial. Confrontation doesn’t apply at trial at all. (Maybe trying to appeal to Scalia’s originalism, but forgetting he put together Crawford, Davis, M-D, and held the majority together with Briscoe)

1.5 Failing that that somehow the mere fact that the analysts are “public officials” and the computer is “non-adversarial,” and the mistaken belief that the analysis requires no interpretation whatsoever, then Confrontation is excused.

1.6 Failing that (perhaps attempting to seize upon the Scalia’s and Thomas’s perceived desire to narrow the Exclusionary Rule in modern 4th Amendment analysis), they argue that the right to Confrontation should be seen as a prophylactic rule (which is really amazing to me, because a classic definition of a prophylactic rule is one that gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right). Clearly, it is not prophylactic even as applied in the case of M-D or even Briscoe.

2. It is not until page 52 of the 59 page brief that we get to anything that remotely addresses the question presented and certified by the SCOTUS which is “Whether the Confrontation Clause permits the prosecution to introduce *****testimonial statements***** of a non testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.” Note that contained within the certified question itself from the SCOTUS that the SCOTUS itself even states that it is a “testimonial statement.” In sum, they argue:

2.1 Retesting (by the same lab and probably the same analyst) is the same as cross-examination (which is really admirably ignorant of the process). In fact, they assert that retesting (by the same lab and probably the same analyst) is actually better and more effective than Confrontation of the particular witness, meaning the actual analyst who did the testing.

2.2 The sky will fall and evil doers will run amuck. Bullcoming, if decided in accordance with Crawford and M-D, will be an extinction level event just like the solar flare in the movie “Knowing.” (I am being facetious, but you argue the absurd with the absurd, I suppose)

2.3 Any old analyst is just as good as the particular analyst who performed the test even if that surrogate has no idea what actually happened in the testing itself.

2.4 It was all harmless error because let's face it he was drunk. If they finally fail, they ask that it be remanded for the state court to determine whether or not it was all harmless beyond a reasonable doubt given these facts.

That's my take on it.

[As an aside, I really appreciate the blog and your efforts to bring Confrontation and other important and timely issues to the forefront.]

Justin J. McShane

State's brief in Bullcoming

The State has filed its brief in Bullcoming v. New Mexico, and you can read it by clicking here. I expect to offer some comments on it later.