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Supreme Court: Test operator must testify at trial

Supreme Court: Test operator must testify at trial
The Supreme Court Justices of the United States most recently ruled that analysts in court must be present to provide evidence for facts. UPI/Roger L. Wollenberg | License Photo

WASHINGTON, June 23 (UPI) -- The U.S. Supreme Court ruled 5-4 Thursday that an analyst involved in a test to prove a criminal fact must testify in court, not a substitute.

The ruling has the potential to affect thousands of future cases in the United States.

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The Sixth Amendment's confrontation clause gives the accused in "all criminal prosecutions ... the right ... to be confronted with the witnesses against him." Supreme Court precedent says the clause permits admission of "testimonial statements of witnesses absent from trial" if the witness is unavailable and the defense had some earlier opportunity to cross-examine outside the courtroom.

But the prosecution cannot introduce a forensic laboratory report as evidence in a criminal proceeding without a live witness, unless both defense and prosecution agree beforehand.

In August 2005, a vehicle driven by Donald Bullcoming rear-ended a pickup truck at an intersection in Farmington, N.M. Bullcoming left the scene before the police arrived, but was soon arrested by an officer, and the suspect failed field sobriety tests.

The principal evidence at trial against him was a forensic laboratory report certifying that his blood-alcohol concentration was well above the threshold for aggravated DWI. Bullcoming's blood sample had been tested at a state lab by a forensic analyst who completed, signed and certified the report.

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However, the prosecution neither called the analyst to testify nor asserted he was unavailable; the record shows only that the analyst was placed on unpaid leave for an undisclosed reason. The prosecution called another analyst, who had not participated in the test, to validate the report.

A state judge overruled defense objections and Bullcoming was convicted. The New Mexico Supreme Court ruled that the admission of the report did not violate the confrontation clause because the original analyst merely transcribed machine-generated results, and the substitute also was an expert witness on the testing machine and procedures.

The state high court affirmed Bullcoming's convictions.

But the U.S. Supreme Court reversed. In the prevailing opinion by Justice Ruth Bader Ginsburg, a court majority said, "The analysts who write reports introduced as evidence must be made available for confrontation even if they have 'the scientific acumen of Mme. Curie and the veracity of Mother Teresa.'"

The certification of the original analyst "reported more than a machine-generated number: It represented that he received Bullcoming's blood sample intact with the seal unbroken; that he checked to make sure that the forensic report number and the sample number corresponded; that he performed a particular test on Bullcoming's sample, adhering to a precise protocol; and that he left the report's remarks section blank, indicating that no circumstance or condition affected the sample's integrity or the analysis' validity."

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The same reasoning applies when an officer uses a radar gun, the opinion said.

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