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Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, June 24, 2011

Bullcoming Decided - No Surrogate Allowed

Wouldn’t you know it – a day after I post “an interesting Confrontation Clause case” decided by the Ninth Circuit (Ocampo), a highly anticipated United States Supreme Court opinion on the Confrontation Clause is issued – Bullcoming v. New Mexico, No. 09-10876 (June 23, 2011), available at: http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

An earlier U.S. Supreme Court case Melendez-Diaz v. Massachusetts, 557 U.S. ____ (2009) formed the backdrop for this most recent case, Bullcoming. In Melendez-Diaz, the Supreme Court held that a forensic laboratory report was “testimonial” under the Sixth Amendment’s Confrontation Clause. As such, under the reasoning established by Crawford v. Washington, 541. U.S. 36 (2004), the prosecution must introduce a live witness competent to testify about the report, unless there was a prior opportunity for cross-examination by the defendant. 

In Bullcoming, the issue was whether the Confrontation Clause required the prosecution to produce the actual author of the report. The majority (by a 5-4 vote) decided that the original author was required and a “surrogate” witness did not meet the constitutional requirements of the Confrontation Clause.

Donald Bullcoming hit the back of another driver’s truck with his car in August 2005. When the owner of the truck spoke with Bullcoming, he noticed that Bullcoming’s eyes were bloodshot and he smelled of alcohol. The driver of the truck had his spouse call the police. Bullcoming left the scene, but was apprehended a short time later. The arresting officer performed a “field sobriety test” on Bullcoming and he failed. He was arrested for DWI. Bullcoming refused a breath test, and the police obtained a warrant for a blood-alcohol test. His blood was drawn at the hospital and it sent a sample to the New Mexico Department of Health, Scientific Laboratory Division (SLD). The SLD issued its standard form entitled “Report of Blood Alcohol Analysis” and it was completed and signed by Curtis Caylor, a SLD analyst.

Caylor used a “gas chromatography” machine (a widely used scientific method of quantitatively analyzing the constituents of a mixture”) to measure Bullcoming’s blood-alcohol level and the report indicated that his alcohol level was 0.21. Bullcoming was charged with aggravated DWI.

During Bullcoming’s trial, to the surprise of defense counsel, the prosecution announced that Caylor would not be testifying and instead Gerasimos Razatos, another SLD analyst would testify about the report. The prosecutor stated that Caylor had “very recently been put on unpaid leave.” Defense counsel objected on Confrontation Clause grounds, but the trial court overruled the objection. [Interestingly, the trial judge “noted that, when he started out in law practice, “there were no breath tests or blood tests. They just brought in the cop, and the cop said “Yeah, he was drunk’””]. Bullcoming was found guilty of aggravated DWI by the jury. 

The New Mexico Court of Appeals affirmed his conviction and concluded that that report was not testimonial and was routine “with guarantees of trustworthiness.” The Supreme Court decided Melendez-Diaz while Bullcoming’s appeal was pending before the New Mexico Supreme Court. After Melendez-Diaz was decided, the New Mexico Supreme Court accordingly determined the lab report was indeed testimonial, but it affirmed Bullcoming’s conviction because it determined that 1) Caylor was a “mere scrivener” who only transcribed the results of a machine test; and 2) Razatos provided live in-court testimony and was a qualified surrogate for Caylor.

Justice Ginsburg delivered the opinion of the Supreme Court, joined by Justices Scalia, Sotomayor, Kagan, and Thomas. Justices Sotomayor, Kagan and Thomas did not join Part IV of Justice Ginsburg’s opinion, and Justice Thomas also did not join in footnote 6. Justice Ginsburg stated the following in her majority opinion, “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” The case was reversed and remanded, although the Court expressed no view on whether the error was harmless. 

The majority compared the New Mexico Supreme Court’s “mere scrivener” finding to that of a witness testifying that a light was green. Witnesses many times record what they observed. This does not mean the statements are beyond the reach of the Confrontation Clause. The report was more than a mere reading of a machine – the Court found that there was opportunity for human error – in fact, in a footnote it noted that in Colorado a single laboratory “produced at least 206 flawed blood-alcohol readings over a three-year span.” The Court stated that “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront.” The right to confront Razatos, a surrogate, was not enough.

Part IV of the opinion is interesting. This is the part of the opinion that Justices Sotomayor, Kagan, and Thomas did not join. Justice Ginsburg relates that New Mexico and its amici pointed out the “undue burden on the prosecution” in these cases (a point accepted by the dissenting justices in this case). In New Mexico, the State offered defendants free retesting of samples. Justice Ginsburg wrote that this is the burden of the State, and not of the defendant.

Her comments bring to mind the Briscoe v. Virginia case, in which the Supreme Court granted certiorari, received full briefing and heard oral arguments but then filed a GVR (grant, vacate, and remand).

Justice Sotomayor wrote a concurring opinion and indicated several situations the Court did not have before it – she indicated that the reasoning of the Court may differ under those circumstances, such as a situation where a supervisor was the surrogate witness. In Bullcoming, Razatos was not in any way associated with the Caylor report – he had not supervised the report, and he was not present when the report was written.

The same four justices who dissented in Melendez-Diaz dissented again in Bullcoming – Justices Kennedy, Roberts, Breyer, and Alito.  Justice Kennedy, who wrote the dissenting opinion, stated that “the Court today takes the new and serious misstep of extending [Melendez-Diaz]…Here a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation.”

States that had hopes that the Supreme Court might back off of its Melendez-Diaz opinion must be disappointed. Clearly Justices Sotomayor and Kagen have followed in the footsteps of those they succeeded – Justices Stevens and Souter. The finding that lab reports are testimonial and require live testimony is on solid ground and now the prosecutors must present the testimony of the authors of the reports and not surrogates. There is a little room for doubt when the surrogate is a supervisor, reviewer or someone with a connection with the test – that may be a different situation, at least for Justice Sotomayor. 

Ann Murphy



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The amici briefs are very interesting. It seems that extremists on neither side got what they wanted; those who sought application and clarification of Melendez-Diaz should be well pleased.

Posted by: Alan Barbour | Jun 24, 2011 6:58:47 PM

Assume Bullcoming was charged with passing a red light resulting in a fatal accident. Assume a police officer was in her patrol car waiting for the light to turn and witnessed the accident. Assume the officer wrote an accident report which included her observation of the color of Bullcoming's light ("It was red.") Assume at the time of Bullcoming's criminal trial for vehicular homicide, the police officer/eyewitness has moved to Australia, and her supervisor, looks at the report and states that it appears that the officer followed all correct procedures in investigating the accident, and that including her observation of the color of the light was proper.

Could the eyewitness report get into evidence and not be subject to the CC? Of course not. Is the dissent saying that it could? If so, I just don't get their view of the CC.


Posted by: Fred Moss | Jun 26, 2011 10:53:56 AM

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