EvidenceProf Blog

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


June 24, 2011 | Permalink | Comments (2) | TrackBack (0)

Thursday, June 23, 2011

No End-Run Allowed under the Confrontation Clause (9th Circuit)

An interesting Confrontation Clause case was decided by the Ninth Circuit on June 9, 2011, Ocampo v. Vail, 2011 WL 2275798 (9th Cir – WA).  The case was an appeal of the denial of a  petition for a federal writ of habeas corpus by the U.S. District Court for the Western District of Washington. The key issue in the case was whether two police officers’ statements generally “outlining” what was said by an alleged witness to a shooting violated Ocampo’s constitutional right to confront his accuser. 

Julio Morales-Castro was fatally shot in the head on the evening of August 9, 2003 outside of a pool hall in Tacoma, Washington. Santana Ocampo was charged with first-degree murder and was found guilty by a jury. He appealed (on the confrontation issue as well as other issues) and the Washington State Court of Appeals affirmed his conviction. The Washington Supreme Court denied review, and Ocampo then sought habeas corpus relief at the federal level.  

His petition for a writ was filed after the U.S. Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA)) and accordingly Ocampo was required to show either an “unreasonable determination” (if the last reasoned state decision was based on an unreasonable determination of the facts in light of the evidence presented); or an “unreasonable application” (a legal determination that was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States).

The Ninth Circuit determined that Ocampo met his burden and it specifically found that the Washington State Court of Appeals unreasonably applied “clearly established Supreme Court Confrontation Clause jurisprudence.” The Court remanded the case with instructions for the District Court to grant the writ unless the State of Washington elects to retry him within a reasonable amount of time.

The confrontation clause was triggered by the absence of an alleged witness Mesial Vasquez, who had reportedly moved to Mexico.

After the shooting, the police showed witnesses at the scene a number of pictures of members of the Hispanic gang Surreno 13, who frequently “hung out” in the area. The witnesses identified Jose Hernandez from the photos. When located by the police, he implicated Ocampo, Vasquez, and another man, Baldemar Vela. According to Hernandez, all four men (Hernandez, Ocampo, Vasquez, and Vela) were in a van the evening of the shooting and stopped to purchase beer. Hernandez told police (and later testified at Ocampo’s trial) that he and Ocampo attempted to steal Morales-Castro’s car and when Morales-Castro came out of the pool hall, Ocampo shot him.

Hernandez was not a particularly good witness at trial. He was an admitted accomplice to the shooting, he reached a plea agreement with the government to testify against Ocampo, his testimony was “inconsistent in several respects with his pre-trial version of events,” his testimony of the facts was inconsistent with other witnesses’ testimony, and most striking, he told two juvenile detention officers as well as his ex-girlfriend that he (and not Ocampo) was the shooter. 

Vela was not a very effective witness either. He was the only other witness who claimed to have seen Ocampo at the scene of the crime. He did so only after being shown a single color Polaroid picture of Ocampo and after having been told that Ocampo had already confessed (which had in fact not happened). At trial, Vela testified that he did not know who the other passengers in the van had been.

The prosecutor called two police officers to testify about the absent Vasquez – only one of whom had ever actually talked to him. Officer Ringer testified that Vasquez corroborated that Ocampo was in the van that evening – despite the fact that Officer Ringer never spoke with Vasquez. Immediately after Officer Ringer’s testimony, Hernandez named Ocampo as the shooter. The other police officer, Detective Webb had spoken with Vasquez. He testified that Vasquez identified Ocampo as being present at the shooting. Defense counsel objected to the testimony of both officers as violative of Ocampo’s right to confrontation.

The prosecution referred to the two officers’ testimony in its closing argument. And the Ninth Circuit found that the prosecution “emphasized Vasquez’s statements.”

The State’s primary argument before the Ninth Circuit was that the confrontation clause was not implicated, because Officer Ringer only “implied the outlines” of Vasquez’s statements, and Detective Webb “did not testify to the substance of any statements Vasquez made.” In other words, the State argued that there was no testimony offered against Ocampo – no statements made by Vasquez had been admitted at trial. 

The Ninth Circuit disagreed and determined that although the State characterized the testimony as an “outline” and not “substance,” the State had indeed introduced statements of Vasquez against Ocampo. A very nice review of Crawford v. Washington, 541 U.S. 36 (2004) as well as several Circuit Court opinions are contained in the opinion. The Court said that descriptions of out of court statements are statements, according to the Supreme Court – the statements need not be verbatim. 

The Circuit Court stated the following, “it would be an unreasonable application of the core Confrontation Clause principle underlying Crawford to allow police officers to testify to the substance of an unavailable witness’s testimonial statements as long as they do so descriptively rather than verbatim or in detail.” The Court also cites to a recent First Circuit case, U.S. v. Meises, 2011 WL 1817855 (1st Cir., May 13, 2011) for a similar proposition. It also stated that if there had been any doubt of what was being offered through Officer Ringer and Detective Webb, the prosecution’s closing argument dispelled any doubt – they were offering statements of Vasquez in his absence and without any prior opportunity for Ocampo to cross-examine him. These statements “had a substantial and injurious effect or influence in determining the jury’s verdict.”

The prosecution’s case had “considerable weaknesses” without Vasquez’s testimonial statements. The Court dismissed the State’s argument that because Ocampo had the opportunity to cross-examine the police officers, he effectively had the opportunity to cross-examine Vasquez. The Court even referred back to Sir Walter Raleigh, and cited Davis v. Washington, 547 U.S. 813 (2006) for the proposition that “having a police officer stand in for an absent witness is not “conceivable”” for confrontation purposes.

It is a well written opinion and should put to rest any government attempt to enter testimonial statements of witnesses through police officers, even if those statements are summarized or in “outline” form. The error below was prejudicial and the case was reversed and remanded.

Ann Murphy

June 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

The Future is Now for FRE 502

I happened to notice a couple of interesting recent articles in the New York Law Journal. The first is entitled Broad Federal Court Powers Under Evidence Rule 502(d) (H. Christopher Boehning and Daniel J. Toal, New York Law Journal, April 8, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202489354099; and the other is entitled Can Technology ‘De-Commoditize’ Document Review? (Robert W. Trenchard and Steven Berrent, New York Law Journal, April 28, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202491954188&slreturn=1&hbxlogin=1.  Both articles address the changing legal market and litigation strategies due to technological advances and the vast proliferation of computer data.

The e-discovery amendments to the Federal Rules of Civil Procedure were passed in 2006 and were followed by Federal Rule of Evidence 502 “Attorney-Client Privilege and Work Product; Limitations on Waiver.”  Rule 502 is available at: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Evidence.pdf. The purposes behind the passage of Rule 502 were two-fold. First, it was meant to resolve disputes about the effect of inadvertent disclosure of privileged or protected information, and second, it was meant to “respond to widespread complaints about litigation costs.”

In the “Broad Federal Court Powers” article referenced above, the authors discuss two cases, Rajala v. McGuire Woods, 2010 WL 2949582 (D. Kan. July 22, 2010); and Radian Asset Assurance Inc. v. College of the Christian Brothers of New Mexico, 2010 WL 4928866 (D. N.M. Oct. 22, 2010). In both cases, the Courts imposed nonwaiver agreements despite the lack of party agreements. In other words, the Courts determined they were authorized to issue nonwaiver orders despite the objection by one of the parties to the litigation. 

In a recent law journal article, Magistrate Judge Paul Grimm (a leader in the field of electronically stored information (ESI)), along with two of his law clerks, Lisa Yurwit Bergstrom and Matthew P. Kraeuter, indicated that a court may issue a nonwaiver order sua sponte - in the absence of a motion by one of the parties. See Federal Rule of Evidence 502: Has it Lived Up to its Potential?, Richmond Journal of Law and Technology, Vol. XVII, Issue 3, Spring 2011. available at http://jolt.richmond.edu/v17i3/article8.pdf, at p. 59.  The entire Journal issue is devoted to ESI and is an excellent source of information in this area.

Boehning and Toal warn counsel that if they are unable to agree to claw back or quick peek agreements, the courts may well do it for them. 

The second article, “Can Technology ‘De-Commoditize’” appears to have its genesis in a New York Times article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software, John Markoff, March 4, 2011, available at:

http://www.nytimes.com/2011/03/05/science/05legal.html. Markoff highlights the problem that formed one of the bases for Rule 502 – the expense of e-discovery. According to authors Trenchard and Berrent, e-discovery costs “can make up to 50 to 90 percent of a case’s budget, and document review is often the lion’s share of that amount.” According to the New York Times article, “e-discovery software can analyze documents in a fraction of the time for a fraction of the cost.” The “exclusive province of human decision makers” and the cost of paying those decision makers will soon become a thing of the past, according to these articles. This will affect lawyers, clients and the legal system in general. The authors believe there will be a resultant need for change in discovery and evidentiary rules. 

In the area of e-discovery and Rule 502, change is happening at a rapid fire pace. Lawyers, law firms, judges, and of course law professors will need to keep up with these changes. One area of change may well be a “manpower reduction” for lawyers. The future of e-discovery should be fascinating and no one can afford to be left behind. 

Ann Murphy


June 20, 2011 | Permalink | Comments (0) | TrackBack (0)