The Particular Witness Rule as established in Bullcoming v. New Mexico


[Full Disclosure: I was one of the co-authors on the NACDL/NCDD amicus curiae briefs in the case of Bullcoming v. New Mexico. You can hear the audio of the oral argument here. I have waited several hours on purpose to post here in order to try to remain objective.]

On September 28, 2010, the Supreme Court of the United States accepted an obscure Public Defender case out of New Mexico captioned Bullcoming v. New Mexico for consideration. In doing so, the pitched battle of the constraints and dictations of the US Constitution and the Confrontation Clause were  yet again visited by the highest court in the land. The certified question before the Court was as follows:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

A factual review of this case provided for some interesting uncontested facts:

  • Donald Bullcoming drove his truck.
  • He hit the vehicle in front of him.
  • He was arrested for DWI.
  • His blood was analyzed by an analyst.
  • The analyst used a particular technique called Gas Chromatography with Flame Ionization Detector.
  • The reported result was in the Aggravated DWI range.
  • The trial came to be.
  • The particular analyst was not called by the prosecution.
  • The particular analyst was on unpaid leave for an unspecified reason.
  • This status of the particular witness was not revealed to the defense until the commencement of trial.
  • Instead the prosecution offered the testimony of a co-worker (not a supervisor).
  • The co-worker was generally aware of the protocol used.
  • The co-worker had no personal knowledge of the actual analysis performed in this particular case.
  • The co-worker admitted that he had no knowledge of whether or not the particular analyst followed the protocol in this particular case.
  • The defense objected.
  • The trial court overruled.
  • No underlying data or chromatograms were offered at trial.
  • No independent opinion was offered by the surrogate witness.
  • The surrogate witness acted as a simple conduit for the report.
  • Later the New Mexico Supreme Court found that although the report contained clearly testimonial aspects, the report did not violate Confrontation Clause rights as the particular analyst was a “mere scrivener” of the machine generated results.

Today, the United States Supreme Court in a 5-4 decision decided and firmly established the Particular Witness Rule as articulated and argued by Professor Jeffrey Fisher of Stanford.

GINSBURG, J., delivered the opinion of the Court, except as to Part IV and footnote 6. SCALIA, J., joined that opinion in full, SOTOMAYOR and KAGAN, JJ., joined as to all but Part IV, and THOMAS, J., joined as to all but Part IV and footnote 6. SOTOMAYOR, J., filed an opinion concurring in part. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined.

As you will recall, Professor Fisher is a former clerk for Justice Stevens and was on the prevailing side of such important cases as Blakely v. Washington (sentencing guidelines), Kennedy v. Louisiana (capital punishment), and the Confrontation Clause cases as Crawford v. Washington, Melendez-Diaz v. Massachusetts, and today Bullcoming v. New Mexico.

Professor Jeff Fisher argues beofre the United States Supreme Court
Professor Jeff Fisher argues before the United States Supreme Court

Boiled down to its foundational essence, this case involves the Particular Witness Rule of the Confrontation Clause. Per the United States Bill of Rights Sixth Amendment, the Particular Witness Rule of the Confrontation Clause imposes an affirmative duty on the prosecution if it desires to introduce a witness’s testimonial statements that the accused be given an opportunity to meaningfully confront that particular witness under oath.

Here is the one sentence from the majority opinion that entrenches the particular witness rule:

The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

But as Professor Fisher argued, this result in the Bullcoming case is simple and not revolutionary as we see that all it is is a logical application of stare decisis and the precedence of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527, 2540 (2009). (“The Confrontation Clause imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.”)

The requirement that the accused be allowed to address the particular witness who generated the testimonial statement is intended to serve four primary functions: (1) it enables meaningful cross-examination of the particular witness’s factual allegations that give rise to the testimonial assertions; (2) it guarantees that the particular witness who generated the testimonial assertions sought to be admitted gives his or her testimony under oath; (3) it allows the fact-finder to observe that witness’s demeanor and responses to questions posed by the accused; and (4) it ensures that the particular witness testifies in the presence of the accused.

The Court wrote:

These rep­re­sen­ta­tions, relat­ing to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination.

Specifically, the Court held:

[The Particular Witnesses] certification 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 in-tegrity or the analysis’ validity. These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination.

The United States Supreme Court once again emphatically and explicitly held that there is no “forensic evidence exception” to the US Constitution and the Confrontation Clause.

The court in footnote one adopted our amicus point of view when it wrote:

Gas chromatography is a widely used scientific method of quantitatively analyzing the constituents of a mixture. See generally H.McNair & J. Miller, Basic Gas Chromatography (2d ed. 2009) (hereinafter McNair). Under SLD’s standard testing protocol, the analyst extracts two blood samples and inserts them into vials containing an “internal standard”—a chemical additive. App. 53. See McNair 141–142. The analyst then “cap[s] the [two] sample[s],” “crimp[s] them withan aluminum top,” and places the vials into the gas chromatograph machine. App. 53–54. Within a few hours, this device produces aprinted graph—a chromatogram—along with calculations representinga software-generated interpretation of the data. See Brief for State of New Mexico Dept. of Health, SLD as Amicus Curiae 16–17.

Although the State presented testimony that obtaining an accurateBAC measurement merely entails “look[ing] at the [gas chromatograph]machine and record[ing] the results,” App. 54, authoritative sources reveal that the matter is not so simple or certain. “In order to perform quantitative analyses satisfactorily and . . . support the results under rigorous examination in court, the analyst must be aware of, and adhere to, good analytical practices and understand what is being doneand why.” Stafford, Chromatography, in Principles of Forensic Toxicology 92, 114 (B. Levine 2d ed. 2006). See also McNair 137 (“Errors thatoccur in any step can invalidate the best chromatographic analysis, soattention must be paid to all steps.”); D. Bartell, M. McMurray, & A. ImObersteg, Attacking and Defending Drunk Driving Tests §16:80 (2d revision 2010) (stating that 93% of errors in laboratory tests for BAC levels are human errors that occur either before or after machines analyze samples). Even after the machine has produced its printedresult, a review of the chromatogram may indicate that the test was not valid. See McNair 207–214.

Nor is the risk of human error so remote as to be negligible. Amici inform us, for example, that in neighboring Colorado, a single forensic laboratory produced at least 206 flawed blood-alcohol readings over a three-year span, prompting the dismissal of several criminal prosecutions. See Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 32–33. An analyst had used improper amountsof the internal standard, causing the chromatograph machine systematically to inflate BAC measurements. The analyst’s error, a supervisor said, was “fairly complex.” Ensslin, Final Tally on Flawed DUI: 206 Errors, 9 Tossed or Reduced, Colorado Springs Gazette, Apr. 19,2010, p. 1 (internal quotation marks omitted), available at http:// (All Internet materials as visited June 21, 2011, and included in Clerk of Court’s case file).

Here is the full opinion of the United States Supreme Court in the case of Bullcoming v. New Mexico.

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