The U.S. Constitution's confrontation clause is not as well known as some of the other rights afforded criminal defendants, such as the right to counsel, but it plays an essential role in making trials fair. This Sixth Amendment protection gives criminal defendants the right to be confronted with the witnesses against them at trial, so they can be cross-examined. It sounds straightforward, but questions have arisen over whether crime lab reports can be submitted into evidence without calling the analyst who prepared them. The U.S. Supreme Court's correct answer last month was no.
The case of Bullcoming vs. New Mexico is essentially the second part of an acknowledgement by the high court that the confrontation clause is relevant in an age when forensic science plays a powerful role in convictions yet can be fallible.
Two years ago, in a Massachusetts case, the court ruled 5-4 that crime lab reports could not be used at trial without the testimony of a lab analyst who could be cross-examined by the defense. This was a major victory for due process, giving criminal defendants the opportunity to directly question the validity of a lab's methods, the expertise of the technician and other variables.
Interestingly, the court in that case didn't divide along traditional conservative and liberal lines. Conservative Justices Antonin Scalia and Clarence Thomas, holding fast to the original meaning of the confrontation clause, joined three of the court's liberals to make up the majority. In Bullcoming, too, Scalia and Thomas rounded out the majority with liberal Justices Ruth Bader Ginsburg, who wrote the court's opinion, and the court's two newcomers, Sonia Sotomayor and Elena Kagan.
The extra step taken in the Bullcoming case is to require that the forensic analyst who certified the lab report be the one to testify, not a substitute from the facility.
Donald Bullcoming was convicted of aggravated driving while intoxicated in part on the basis of a report finding that his blood-alcohol content was above the legal threshold. The analyst who had conducted the test on the blood sample had been placed on unpaid leave for an undisclosed reason, and prosecutors brought in another analyst — one who had not participated in or observed the test — to validate the report at trial.
The court found this insufficient to satisfy the confrontation clause's requirements. Beyond the legal arguments, the dissent by Justice Anthony Kennedy complained about the burden this rule will put on prosecutors and crime labs to get personnel to trial. But there is no basis for diminishing constitutional rights because they are costly to administer. For instance, it's costly to provide indigent defendants counsel. A fair trial also includes the ability to cross-examine those who are responsible for the forensic evidence — a right that will only grow more important as technology advances.