The highest court just expanded the right of confrontation on 6/23/11 in Bullcoming v. New Mexico which clarified and expanded the right of the defense to cross examine the witnesses against him. In this context, the state court had allowed the testimony of another analyst to validate the blood test report after the prosecution did not call the forensic analyst who completed, signed, and certified the report. The lower courts had reasoned that the report’s admission did not violate the Confrontation Clause because the analyst was just a scrivener that just transcribed machine-generated test results and the analyst that did testify qualified as an expert witness with respect to the machine and the procedures.
The U.S. Supreme Ct. concluded that the Confrontation Clause does not permit the prosecution to introduce a forensic lab report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of another analyst that did not personally observe the test. The certification was more than a machine-generated number. The report involved other representations relating to past events and human actions that the defense should be able to confront, e.g the sample was intact, the report number and sample number, corresponded, that he performed the test according to a precise protocol, and the blank in the report’s section was because there was no circumstance or condition affecting the integrity of the sample or the validity of the analysis.
The reliability of the report does not dispense with the protection. Nor was the other expert witness sufficient to convey what the percipient analyst knew or observed, nor expose any lapses or lies of that person. The Confrontation Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another’s testimonial statement provides a fair enough opportunity for cross-examination. If a “particular guarantee” is violated, no substitute procedure can cure the violation. Like the certificate in Melendez-Diaz, the lab report is undoubtedly an “affirmation made for the purpose of establishing or proving some fact” in a criminal proceeding. The report is testimonial. This means in California that “supervisors” or glib, trained, seasoned witnesses from a lab can not testify to the testing of the blood sample and that the person that did the test will have to appear. It also creates other pitfalls for the prosecution on the most critical piece of evidence–the chemical test results.