©2011 Jack Ryan, Attorney, PATC Legal & Liability Risk Management Institute (www.llrmi.com)2011 U.S. Supreme Court Bullcoming v. New Mexico

Confrontation Clause Gives Defendant Right to Confront the Analyst who analyzed his Blood in Operating while Intoxicated Case.

Over the last several years the United States Supreme Court has decided a number of cases dealing with the Sixth Amendment’s confrontation clause of the United States Constitution.  While many of these cases have focused on statements that the prosecution has sought to introduce when the person who made the statement was unavailable to testify at trial.  The theory of the defense is that the introduction of such statements violates the right of the defendant to confront and cross-examine his or her accuser.  Another group of cases has challenged the introduction of results of forensic testing unless the person who conducted the testing testifies and is subject to cross-examination.  Over the years it had been routine practice for courts to accept forensic testing results through documents provided by the testing agency without the need to bring the forensic examiner into court to testify.

In Bullcoming v. New Mexico, [i] the United States Supreme Court made clear that defendants, have the right under the 6th Amendment’s Confrontation Clause to confront and cross-examiner the actual forensic examiner who did the forensic testing on the evidence being used against the defendant.

In its analysis the Court began by a discussion of precedent set forth in the Melendez case and reciting the facts related to the defendant Bullcoming:

In Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), this Court held that a forensic laboratory report stating that a suspect substance was cocaine ranked as testimonial for purposes of the Sixth Amendment’s Confrontation Clause. The report had been created specifically to serve as evidence in a criminal proceeding. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements made in the report.

In the case before us, petitioner Donald Bullcoming was arrested on charges of driving while intoxicated (DWI). Principal evidence against Bullcoming was a forensic laboratory report certifying that Bullcoming’s blood-alcohol concentration was well above the threshold for aggravated DWI. At trial, the prosecution did not call as a witness the analyst who signed the certification. Instead, the State called another analyst who was familiar with the laboratory’s testing procedures, but had neither participated in nor observed the test on Bullcoming’s blood sample. The New Mexico Supreme Court determined that, although the blood-alcohol analysis was “testimonial,” the Confrontation Clause did not require the certifying analyst’s in-court testimony. Instead, New Mexico’s high court held, live testimony of another analyst satisfied the constitutional requirements.

The Court concluded:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Thus, law enforcement and prosecutors must be aware that in order to present the results of forensic testing in any criminal trial, the actual forensic analyst will have to be presented as a witness in the prosecution’s case unless:

  • The defense stipulates to the results of the forensic testing; or
  • The analyst is “unavailable” AND the defendant has had a previous opportunity before the trial to cross examine the particular scientist.


NOTE:    Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.


[i] Bullcoming v. New Mexico, 2011 U.S. LEXIS 4790; slip op. No. 09-10876 (June 23, 2011).

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