Thursday, April 9, 2015
Confrontation Clause aficionados will recall the Supreme Court's decision in Bullcoming v. New Mexico (2011), in which the Court deemed a "forensic laboratory report certifying that [defendant] Bullcoming’s blood-alcohol concentration was well above the threshold for aggravated DWI" to be testimonial hearsay. The Court held that admission of the lab report against Bullcoming, absent an opportunity to cross-examine the report's author, violated the defendant's rights under the Sixth Amendment.
According to the Court, "On the day of trial, the State announced that it would not be calling SLD analyst Curtis Caylor as a witness because he had 'very recently [been] put on unpaid leave' for a reason not revealed."
With Caylor absent, the prosecution introduced (over the defense's objection) the lab report as a business record, using the testimony of another lab employee (Gerasimos Razatos, who did not conduct the test at issue) to authenticate the report and to explain the lab's usual procedures.
The Court identified a significant problem with use of a substitute lab witness: "Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station." Also, Razatos simply could not testify about what Caylor actually did (or did not do) that was relevant to Bullcoming's criminal case.
Before discussing Bullcoming the other day with my Evidence class, I spent a few minutes investigating what happened to Caylor. It turns out that he was sentenced to prison last year after pleading guilty to receipt of child pornography. (I have confirmed with an employee of the New Mexico state lab at which Caylor once worked that the person who pleaded guilty is the same Curtis Caylor.) Because the child porn arrest came some years after Caylor left his lab job, it doesn't look like he was suddenly put on leave for anything related to this particular crime. But it does add further credibility to the argument that Caylor left his job under fishy circumstances about which the Bullcoming defense team might well have wished to inquire.
So for those who stress the importance of cross-examination in the context of lab reports offered against criminal defendants, there is another anecdote that would seem to bolster that cause.
The story of Annie Dookhan, who once worked as an analyst at the Massachusetts lab at issue in Melendez-Diaz v. Massachusetts (U.S. 2009), is probably the most famous such anecdote. Dookhan pleaded guilty in 2013 to dozens of crimes related to tampering with evidence at the state drug lab and was sentenced to three-to-five years' imprisonment. Massachusetts officials, as well as defense lawyers, are still dealing with the aftermath of the ensuing scandal.
- Ben Trachtenberg