DWI Forensic Laboratory Reports are “Testimonial” for Confrontation Clause Purposes
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
It is not often that a DWI case will find itself in the trenches of constitutional law before the Supreme Court of the United States. But that’s precisely what happened last month when the high court handed down Bullcoming v. New Mexico. The Donald Bullcoming case began in 2005 with a set of background facts similar to many other DWI cases.
Bullcoming’s vehicle rammed into the rear of a pickup truck at an intersection in Farmington, New Mexico. The pickup’s driver got out of his truck to exchange insurance information with Bullcoming, but upon noticing that Bullcoming’s eyes were bloodshot and he smelled of alcohol, the pickup’s driver instructed his wife to call the police.
Bullcoming fled the wreck scene but was quickly caught by a police officer who conducted a field sobriety test on him. Failing the test, Bullcoming was arrested for DWI after which he refused to take a breath test. The officer secured a warrant for a forced blood draw to determine the level of alcohol in Bullcoming’s system. The officer sent the blood sample to a lab maintained by the New Mexico Department of Health where a standard report was generated confirming Bullcoming’s intoxication. The “forensic analysis” of Bullcoming’s blood was conducted by an analyst named Curtis Caylor.
Bullcoming was tried in November 2005—one year after the Supreme Court decision in Crawford v. Washingtonwhich clearly defined the parameters of testimonial and non-testimonial evidence under the Sixth Amendment. Under the Crawford rule, a forensic report like the one prepared by Curtis Caylor is “testimonial” evidence that has to be personally verified in court by live testimony of the analyst who prepared it, subject to cross-examination by the criminal defendant. The constitutional problem in the Bullcoming case arose when Caylor was not available to testify at the defendant’s DWI trial. The prosecution was forced to use another forensic analyst who had performed similar blood alcohol concentration tests as Caylor had done on Bullcoming’s blood sample. The substitute analyst confirmed Caylor’s finding that Bullcoming’s level of alcohol exceeded the legal limits of intoxication.
Bullcoming was convicted and appealed his conviction to the New Mexico Supreme Court. While the appeal was pending, the Supreme Court handed down Melendez-Diaz v. Massachusetts which held that a forensic lab report on cocaine was testimonial and could not be offered into evidence without a live witness to very its authenticity. While the New Mexico Supreme Court held that Caylor’s report was testimonial evidence, the court reasoned that the Sixth Amendment did not require the certifying analyst to testify at trial. And that was the important question that worked its way to the U.S. Supreme Court: whether the live testimony of another analyst who did not conduct or write a forensic report satisfies the Sixth Amendment’s confrontation guarantee?
The Supreme Court essentially ruled that its long line of Sixth Amendment/confrontation guarantee cases necessitated a conclusion that any forensic report relied upon by the prosecution to prove an element of the offense charged must be supported with live testimony from the author of the report and no one else. The Court explained its reasoning this way:
“The New Mexico Supreme Court held surrogate testimony adequate to satisfy the Confrontation Clause in this case because Caylor ‘simply transcribed the result generated by the gas chromatograph machine,’ presenting no interpretation and exercising no independent judgment … Bullcoming’s ‘true accuser,’ the court said, was the machine, while testing analyst Caylor’s role was that of ‘mere scrivener’ … Caylor’s certification, however, reported more than a machine-generated number.
“Caylor certified that he received Bullcoming’s blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number ‘corresponded,’ and that he perform on Bullcoming’s sample a particular test, adhering to a precise protocol … He further represented, by leaving the ‘remarks’ section of the report blank, that no ‘circumstance or condition … affected the integrity of the sample or … the validity of the analysis’ … These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet [sic] for cross-examination.
“The potential ramifications of the New Mexico Supreme Court’s reasoning, furthermore, raise red flags. Most witnesses, after all, testify as to their observations of factual conditions or events, e.g., ‘the light was green,’ ‘the hour was noon.’ Such witnesses may record, on the spot, what they observed. Suppose a police report recorded an objective fact—Bullcoming’s counsel posited the address above the front of a house or the read-out of a radar gun … Could an officer other than the one who saw the number on the house or gun present the information in court—so long as that officer was equipped to testify about any technology the observing officer deployed and the police department’s standard operating procedures? As our precedent makes plain, the answer is emphatically ‘No.’
“The New Mexico Supreme Court stated that the number registered by the gas chromatograph machine called for no interpretation or exercise of independent judgment on Caylor’s part … We have already explained that Caylor certified to more than a machine-generated number … In any event, the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar. This Court settled in Crawford that the ‘obvious reliability’ of a testimonial statement does not dispense with the Confrontation Clause … Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.”
The Supreme Court discussed its own “red flags” raised by the New Mexico Supreme Court’s reasoning; namely, that a “machine” was Bullcoming’s “accuser,” not Caylor’s observations included in the report. Forgive us if we tend to live on the dark side of human behavior, but we find the New Mexico Supreme Court’s reasoning far more than a “red flag” about the ramifications of its decision-making. It would logically follow that this state court would permit prosecution-produced robots and/or computers to testify in court. Apparently New Mexico prosecutors, and the state’s highest court, would have no problem if IBM’s “Watson,” the computer that won Jeopardy this past February over his human counterpart, testified in open court against a criminal defendant.
That’s some scary logic. While we understand that we live in a world in which technology has had a rapid and compelling impact on our criminal trial system, it is simply disturbing, to say the least, that a state supreme court would label a machine as the real “accuser” in a criminal case. Fortunately, the U.S. Supreme Court refused to lead us down that “yellow brick road”—at least for the time being. However, we find little reason to celebrate considering three of the Supreme Court’s justices—one liberal and two conservatives—would have led us down that same road, just as the New Mexico Supreme Court was prepared to do. Scary stuff!
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair