September-October 2011

An unnecessary sequel: blood-alcohol analysis, the Confrontation Clause, and Bullcoming v. New Mexico

David C. Newell

Assistant District Attorney in Harris County

At the risk of pop culture apostasy, I wasn’t all that impressed with The Hangover II. The first movie was fresh and new, but the sequel was the same type of thing just applied to subtly different facts. The United States Supreme Court decision in Bullcoming v. New Mexico is actually kind of like that. Not in the sense that it features a chain-smoking monkey, of course, but as a sequel to the recent hit, Melendez-Diaz v. Massachusetts, Bullcoming carried with it such promise—only to reveal itself to be something we’d already seen before#.1 While Bullcoming does build upon the foundation laid by Melendez-Diaz, ultimately it still leaves enough unanswered questions that a third installment is guaranteed.

Where we left off

In 2009, the United States Supreme Court held in Melendez-Diaz v. Massachusetts that an affidavit from a lab analyst about a forensic analysis he performed was a testimonial statement and the defendant had a right to cross-examine that analyst under the Sixth Amendment.#2 Because the State introduced the certificate of analysis and never called the analyst to testify, Melendez-Diaz was denied his right to confront the witnesses against him. And, to make matters more interesting, Justice Scalia also explained that simply introducing the analysis as a business record may not satisfy the Confrontation Clause as re-imagined under Crawford v. Washington. According to Scalia, courts must look to whether the business record was prepared for the purpose of use at trial to determine whether it was testimonial. But notice-and-demand statutes that require a defendant to raise an objection to lab analysis prior to trial or waive his right of confrontation, such as articles 38.41 and 38.42 of the Texas Code of Criminal Procedure dealing with laboratory analysis of physical evidence, don’t violate the Sixth Amendment.#3

    After Melendez-Diaz, courts of appeals wrestled with situations where an expert’s analysis was introduced through a report even though the expert performing the analysis did not testify. In Cuadros-Fernandez v. State, the Dallas Court of Appeals held that an unsworn report on DNA analysis was testimonial and should not have been admitted without giving the defendant an opportunity to cross-examine the analyst.4# Similarly, in Wood v. State, the Austin Court of Appeals held that an autopsy report prepared by a non-testifying medical examiner violated the Confrontation Clause based upon Melendez-Diaz.5 However, the Austin Court of Appeals also held that the testimony of a second medical examiner was admissible because that second expert gave his own opinions based in part upon a review of the non-testifying medical examiner’s autopsy report.6# And finally, the Fort Worth Court of Appeals upheld in Settlemire v. State the introduction of breath-test results and Intoxilyzer maintenance logs through a technical supervisor even though she had not supervised the Intoxilyzer that had been used to test the defendant’s breath.7#

    So what you see after Melendez-Diaz is courts of appeals grappling with three issues. First and most obviously, can the State satisfy Melendez-Diaz by calling a witness to testify about a non-testifying expert’s analysis based solely upon that witness’s familiarity with the way such analysis is generally performed? Second, is machine-generated data testimonial? And finally, what if an expert testifies about his own opinion based upon the data collected and conclusions drawn by an non-testifying expert? These questions set the stage for the Supreme Court’s decision in Bullcoming, which could have answered all three questions but really only addressed the first.

Plus ça change, plus c’est la même chose#8

The facts of Bullcoming v. New Mexico are materially indistinguishable from those in Melendez-Diaz. New Mexico charged Bullcoming with DWI and took him to the hospital where a sample of his blood was drawn. The blood was tested at the Scientific Laboratory Division of the New Mexico Department of Health by a forensic analyst named Caylor. Caylor prepared a report that showed the results of the analysis, but it also related additional information from the analyst himself. For example, it stated that Caylor had received the untampered sample and that the number on the sample matched the number on the report. It also related that Caylor had performed a particular test under a particular protocol and that nothing in the test affected the integrity of the blood sample. Unfortunately, Caylor had been placed on unpaid leave for an undisclosed reason,9# so the State called another analyst, who had neither participated in nor observed the test, to validate the report.

    The United States Supreme Court held that the report was testimonial and that the surrogate testimony of a scientist who did not sign the certification or perform or observe the test did not meet the constitutional requirements of the Sixth Amendment.10# Justice Ginsberg, writing for the majority, explained first that the report contained more than computer-generated data; it also contained assertions by the non-testifying analyst that the sample came from the defendant and hadn’t been tampered with and that the test had been performed properly.

    According to Ginsberg, the laboratory report resembled those in Melendez-Diaz “in all material aspects.” The only difference seemed to be that the non-testifying expert in Bullcoming had not had his assertions notarized. Consequently, the defendant had a right to confront the non-testifying expert about the assertions contained in the report, and the State should not have been allowed to introduce the blood-alcohol analysis without calling that analyst to the stand.

    Justice Ginsberg went on to explain that allowing the defendant to cross-examine a surrogate expert did not satisfy his right of confrontation. The testifying expert didn’t know what the non-testifying expert had observed or what process had been used during the testing. Moreover, had the original analyst testified, the defendant could have cross-examined him about the reasons for his unpaid leave, such as whether it was incompetence, evasiveness, or dishonesty. Because he could not do that through cross-examination of the surrogate witness, the court held that Bullcoming’s right of confrontation had been violated.

    This portion of the holding would seem to validate the Dallas Court of Appeals’ opinion in Cuadros-Fernandez. While the State didn’t call a surrogate witness in that case, after Bullcoming it’s clear that such a distinction would not matter. Simply offering the report of analysis, even unsworn, runs afoul of both Bullcoming and Melendez-Diaz.

    Significantly, however, Justice Sotomayor wrote a concurring opinion that clarified what the court was not deciding. She acknowledged that this case was materially indistinguishable from the facts considered in Melendez-Diaz but went on to explain the factual circumstances not present. According to Justice Sotomayor, the State had never suggested an alternative purpose for the report, such as medical treatment. In making that point, Sotomayor cited to portions of Michigan v. Bryant, Giles v. California, and even Melendez-Diaz that noted medical reports and statements for medical purposes would not likely be testimonial. Additionally, she noted that this was not a case where a supervisor testified after having observed an analyst conducting a test, though she was quick to explain that the question of what degree of involvement was necessary to admit such a report was still open.

    Justice Sotomayor also reiterated that this was not a case where the State introduced raw data generated by a computer. Here, the State had introduced the non-testifying expert’s statement that included machine-generated data copied from a gas chromatograph printout along with other statements about the procedures used in handling the blood sample. Because the “other statements” were testimonial, there was no need to decide whether the State could introduce the computer generated data.

    Notably, this machine-generated data theory seems to be what allowed the admission of maintenance logs and breath test results of the Intoxilyzer in Settlemire mentioned above. On one hand, Settlemire seems to be distinguishable from Bullcoming in that the Intoxilyzer itself makes assertions about whether a proper breath specimen was taken and whether the test was performed properly. On the other hand, the officer administering the test must assert that the sample comes from the defendant by typing in the proper identification information, so it remains to be seen whether Bullcoming significantly undermines the holding of Settlemire. But clearly the better practice is to call the officer who administered the breath test (if possible) as well as the technical supervisor to completely avoid any potential confrontation clause issues.

    But back to Bullcoming. Justice Sotomayor noted that this was not a case where an expert witness was asked to give an independent opinion about underlying testimonial reports that were not admitted into evidence. The State had never asserted in Bullcoming that the testifying expert offered an independent, expert opinion about blood-alcohol concentration. Justice Sotomayor noted that they would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.

    This, of course, is the very situation that the Austin Court of Appeals faced in Wood regarding autopsies. The Wood court correctly anticipated one aspect of Bullcoming when it held that the non-testifying medical examiner’s report violated Melendez-Diaz. However, and perhaps fortunately for Texas, it went further to address whether a second expert’s independent opinion based upon that report would violate the Confrontation Clause. The Austin Court of Appeals held that it didn’t. As Justice Sotomayor’s concurrence makes clear, the United States Supreme Court has yet to say whether it does.

    It is, of course, very tempting to regard these limitations of the opinion’s scope as an implicit endorsement of the introduction of computer-generated data or independent expert opinions based upon non-testifying expert observations and opinions. And the vote breakdown makes it even more tempting, with four justices dissenting and Justice Sotomayor (the swing vote and author of the court’s earlier opinion in Michigan v. Bryant) concurring. However, Sotomayor does not point to any legal authority to suggest what her opinion might be on those unresolved issues. So, just like at the end of Back to the Future II, we have to wait until next summer to see what happens next (spoiler in the footnote).#11

To be continued …

So Bullcoming v. New Mexico leaves us pretty much exactly where we were at the end of Melendez-Diaz. When a prosecutor finds that she wants to introduce a lab analysis but the person who performed the analysis is unavailable, the first question should always be whether the analysis can be redone. If not, testimony from a person who has some knowledge of how the test was performed is the next best option. Finally, seeing if an expert could give an independent opinion about the analysis without merely being a surrogate for the non-testifying expert’s opinion may work as a last resort. Fortunately, the United States Supreme Court recently granted certiorari in Williams v. Illinois, where the State’s DNA expert gave an independent opinion regarding DNA analysis performed by a non-testifying expert based upon that non-testifying expert’s report.12# I hope a decision on that case in the upcoming term will provide a satisfying end to the trilogy and cure the hangover (II) left from Melendez-Diaz and Bullcoming.


1 Well, and both Melendez-Diaz and Bullcoming were summer releases, just like The Hangover I and II.
2 Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
3 Again, make sure you thank Ken Sparks, County and District Attorney in Colorado County, and Jay Johannes, an Assistant County and District Attorney in Colorado County, for coming up with the idea for these statutes. These laws were noted favorably by the United States Supreme Court in Melendez-Diaz and have been upheld against a constitutional challenge in Texas. See e.g. Deener v. State, 214 S.W.3d 522, 527-28 (Tex. App.—Dallas 2007, pet. ref’d) .
4 Cuadros-Fernandez v. State, 316 S.W.3d 645, 658 (Tex. App.—Dallas, no pet.).
5 Wood v. State, 299 S.W.3d 200, 209-10 (Tex. App.—Austin 2009, pet. ref’d).
6 Id.; See also David C. Newell, “Strange Things Are Afoot At The Circle K . . . mart?: An examination of the United States Supreme Court’s decision in Melendez-Diaz v. Massachusetts,”  The Texas Prosecutor, September–October 2009, volume 39, No. 5 (2009)(noting that a second medical examiner should be able to testify about his own opinion regarding an autopsy in reliance upon a non-testifying medical’s autopsy report). But I’d be wary of trusting that author; his picture looks kind of sketchy.
7 Settlemire v. State, 323 S.W.3d 520, 522 (Tex. App.—Fort Worth 2010, pet. ref’d).
8 This is an epigram from Jean-Baptiste Alphonse Karr that roughly translates to “The more things change, the more they stay the same.” I’m sure he was way hotter than Bradley Cooper. See e.g.
9 I personally think it had something to do with Walter White and Jesse Pinkman. See Breaking Bad (AMC television broadcast, January 20, 2008). Better call Saul.
10 Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).
11 Doc Brown is rescued in the Old West, falls in love with Ted Danson’s future wife, and totally pimps out a train. Back to the Future Part III (Universal Pictures 1990). Teen Wolf Too (or as I like to call it Teen Wolf As Well) was not fortunate enough to merit a triologic end.
12 People v. Williams, 939 N.E.2d 268 (Illinois 2010), cert. granted, 2011 WL 2535081 (June 28, 2011). Of course, there’s already a Supreme Court case entitled Williams v. Illinois, but that’s to be expected when you give people common names like Illinois.