Form Over Substance Abuse

In Bullcoming v. New Mexico (June 2011) the U.S. Supreme Court continued to use the Confrontation Clause as a hammer to make life miserable for prosecutors and forensic lab technicians.  The Court decided (by a 5-4 margin) that a lab report indicating a driver’s blood alcohol content was inadmissible in evidence because the technician who prepared the report did not testify at trial.  The prosecutor did call a lab technician to explain lab testing procedures, and the defense had a chance to cross examine the technician.  But that wasn’t good enough for Confrontation Clause purposes because the testifying techie knew nothing about Bullcoming’s specific test.

The justices who uphold defendants’ Confrontation Clause challenges to routine lab reports insist that they are not burdening the states.  But statistics suggest otherwise.  New Mexico has ten lab techs for the entire state, and apparently they are run ragged trying to respond to subpoenas while trying to run the tests they are hired to perform.  California sent in a brief summarizing the huge burdens and costs that the Confrontation Clause decisions prior to Bullcoming have created.  And all over reports that are machine-generated and virtually always correct.  (Bullcoming could have asked to have his sample retrested, but he didn’t.)

As the 4 dissenters in Bullcoming warned, the Court’s Confrontation Clause Cabal might do more damage yet.  Probably 2-4 people contribute to most lab reports if you include the clerks who check lab specimens in and out.  If they all have to testify, the Confontation Clause will become All-Powerful.