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Monday, June 27, 2011

Crime Lab Testimony; no Substitute for Being There

By Tommy Eden, Attorney, Capell & Howard, P.C.

Donald Bullcoming was arrested on suspicion of driving while intoxicated and at his trial in New Mexico prosecutors presented a crime lab report showing that his blood-alcohol levels were elevated. However, prosecutors did not call the analyst who had prepared and signed the report. Rather, they told the trial court that he was on unpaid leave for unspecified reasons and presented a colleague who had neither observed nor reviewed the analysis.

In Bullcoming v. New Mexico, No. 09-10876 on June 23, the United States Supreme Court reversed holding that surrogate laboratory crime report testimony would not do. Crime reports may not be used against criminal defendants at trial unless the analysts responsible for creating them gives testimony and subject themselves to cross-examination. The High Court ruled that a substitute was unacceptable under the Sixth Amendment’s confrontation clause which gives a criminal defendant the right “to be confronted with the witnesses against him.”

Justice Kennedy wrote in his dissent: “Requiring the state to call the technician who filled out a form and recorded the results of a test is a hollow formality, and the cost of the requirement that the original analyst testify is enormous,” citing statics provided to the court in supporting briefs from prosecutors showing that each “blood-alcohol analyst in California processes an average of 3,220 cases annually and the Los Angeles Police Department’s 10 toxicologists spent 782 hours at 261 court appearances in a recent year.”

Justice Ginsburg countered the dissent and extolled the value of cross-examination in an area in which “the risk of human error is not so remote as to be negligible” and pointed to a report that a single crime lab in Colorado “produced at least 206 flawed blood-alcohol readings over a three-year span.” It was also noted that New Mexico may have solved the problem of the absent analyst by having the sample retested under the supervision of a colleague available to testify. Also substitute testimony may also be allowed from “a supervisor, reviewer or someone else with a personal, albeit limited, connection to the scientific test at issue.”

Common Sense Counsel: this case will have a far reaching impact in the presentation of evidence at trial in the field of criminal forensics. It is critical that the person who is to give live testimony have a personal connection to the scientific test at issue. The best practice, according to the Court, is to have the sample retested under the supervision of a colleague available to testify. I also believe that the impact of this case will bleed over onto the civil side or into benefits denials. According, the came “personal connection to the scientific test” steps should be taken when a surrogate must be used to give trial testimony.

Tommy Eden is a Lee County native, an attorney with the Capell & Howard, P.C. and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter and SAPAA Board Member. He can be contacted at or 334-501-1540.