On June 23rd, the U.S. Supreme Court decided Bullcoming v. New Mexico. As anticipated, the case turned out to be a straightforward application of Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009) (forensic laboratory reports are testimonial; absent a stipulation, the prosecution may not introduce such a report without a live witness to testify to the truth of its contents), with the Court holding that substitute analyst testimony in an impaired driving case violated Crawford. Bullcoming involved an extreme example of substitute analyst testimony: the testifying expert had no independent opinion as to the matter in question (blood-alcohol level) and he neither participated in nor observed the test being done; as a result, he served as a mouthpiece for the non-testifying expert (something N.C. courts already have held is impermissible). For those dealing with more subtle substitute analyst cases (e.g., the testifying pathologist who did not perform the autopsy but has an independent opinion as to cause of death based on autopsy photographs, tests, and other documentation, all introduced as basis of the opinion), Bullcoming doesn’t advance the ball. It does, however, highlight a deep divide in the Court, with at least four Justices seeking to limit Crawford. In Bullcoming, the defendant was involved in a car accident. Because the defendant’s eyes were bloodshot and he smelled of alcohol, the police were called. After leaving the scene, being apprehended and failing field sobriety tests, the defendant was arrested for impaired driving. When he refused to take a breath [...]
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