While there is no shortage of folks willing to say that today’s SCOTUS opinion in Bullcoming v. New Mexico is a game-changer, we need look no further than Justice Sotomayor’s concurring opinion to see that Bullcoming will have very little, if any, effect on court-martial jurisprudence. “Emphasiz[ing] the limited reach of the Court’s opinion” in Bullcoming, Sotomayor makes four key points:

First, this is not a case in which the State suggested an alternate purpose [beyond criminal prosecution -zds], much less an alternate primary pur­pose, for the BAC report.

Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the  scientific test at issue …  It would be a different case if,  for example, a supervisor who ob­served an  analyst conducting a test testified about the results or a report about such results.

Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testi­monial reports that were not themselves  admitted into evidence … Here the State offered the BAC report, including Caylor’s testimonial statements, into evidence.

Finally, this is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph … Thus, we do not decide whether, as the New Mexico Supreme Court suggests, a State could introduce (assuming an ade­quate chain of custody foundation) raw data generated by a machine in conjunction with the testimony of an expert witness.

While Justice Sotomayor’s concurrence isn’t the majority opinion, it neatly tracks the significant differences between the use of laboratory reports at issue in Bullcoming and the use of similar reports in a garden-variety court-martial for violation of Article 112a.

For those who don’t remember, the Blazier cases contain similar discussion, presented here in the order of Justice Sotomayor’s four points:

First, Blazier I found only the drug lab reports cover memoranda to be testimonial hearsay because “the evidentiary purpose of those memoranda was apparent, as they not only summarize and digest voluminous data but were generated in direct response to a request from the command indicating they were needed for use at court-martial.” U.S. v. Blazier, 68 M.J. 439, 443 (CAAF, 2010) (Blazier I). There are many alternate purposes for military urinalysis, and, based on the high probability of alternative disposition, criminal prosecution is arguably not the primary purpose for military urinalysis.

Second, the expert in Blazier “was the certifying official for the drug testing reports and was recognized as an expert in ‘the field of pharmacology area of drug testing and forensic toxicology.'” 68 M.J. at 443 (Blazier I). Even though the Blazier expert “was not personally or directly involved in the substantive analyses,” he had a supervisory role at the laboratory. 69 M.J. at 224 (Blazier II). The use of a laboratory supervisor as an expert witness is common practice for the introduction of urinalysis tests at courts-martial.

Third, “an expert witness may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions. An expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test.” 69 M.J. at 224-225 (Blazier II). At courts-martial (pre- and post-Blazier),  government experts make in-court interpretations of machine-generated laboratory reports.

Finally, “it is well-settled that under both the Confrontation Clause and the rules of evidence, machine-generated data and printouts are not statements and thus not hearsay—machines are not declarants—and such data is therefore not ‘testimonial.'” 69 M.J. at 224 (Blazier II). While Bullcoming didn’t directly address this question, the admissibility of business records of this sort, whose assembly requires the “concurrence of persons, each of whom can contribute no more than a slight part,” is well-settled. Palmer v. Hoffman, 318 U.S. 109, 112 (1943).

Bullcoming is an interesting case, especially the dissent (“requiring the State to call the technician who filled  out a form and recorded the results of a test is a hollow formality”). However, military prosecutions already embrace the “formalities” absent in New Mexico, and Bullcoming won’t mandate any changes.

14 Responses to “Bullcoming is no Blazier”

  1. a concerned reader says:

    Although I appreciate he is trying to present a contrarian POV, Mr. Spillman is incorrect. Let’s remember Justice Sotomayor does not represent the opinion of the court. This case is simple, and simply stated by Justice Ginsbrg. At the end of part I the court here is clear, the testimonial statement of witness A cannot be entered into evidence by witness B.

    The statement by Mr. Spillman “The use of a laboratory supervisor as an expert witness is common practice for the introduction of urinalysis tests at courts-martial,” is at best inartfully worded, and at worst throws aside the rules of hearsay or simply misstates facts. Please tell us what cases show an expert witness…who did not handle the sample…has successfully been used to admit a UA?

    The court does indeed make new law in Part II A/B…please read it closely. The Court goes further than Blazier II…the accused has a right to confront the one who sets up the machine and the test itself. What did you do? What tests? Which machines? Did the paperwork match the sample? The numbers are not simply birthed into the trial counsel’s trial notebook.

  2. Zachary Spilman says:

    “concerned reader”:

    At a court-martial, “where scientific evidence provides the sole basis to prove the wrongful use of a controlled substance, ‘[e]xpert testimony interpreting the tests or some other lawful substitute in the record is required to provide a rational basis upon which the factfinder may draw an inference that [the controlled substance] was [wrongfully] used.'” U.S. v. Green, 55 M.J. 76, 80 (CAAF, 2001) (citing U.S. v. Murphy, 23 MJ 310, 312 (CMA, 1987)). This is commonly a supervisor from the lab where the testing occurred.

    At a court-martial, post-Blazier, machine-generated laboratory records are admissible as non-testimonial business records, but certifications, cover-memoranda, and other human-prepared records are not admissible because they contain testimonial statements that interpret the data. “The New Mexico Supreme Court stated that the number registered by the gas chromatograph machine called for no interpretation or exercise of independent judgment on Caylor’s part. We have already ex­plained that Caylor certified to more than a machine­-generated number. In any event, the comparative reliability of an analyst’s testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar.” Bullcoming v. New Mexico, 564 U.S. ___ (2011) (Slip op. at 11) (emphasis added).

    At a court-martial, the trial counsel does not rely on his “notebook” to determine if procedures were followed; he asks the expert to discuss the quality-control system in place at the lab, and the defense cross-examines him trying (often successfully) to show why that system is inadequate.

    At a court-martial, post-Blazier the Bullcoming fact pattern is impossible (without error).

  3. Peanut Gallery says:

    At a court-martial, the trial counsel does not rely on his “notebook” to determine if procedures were followed; he asks the expert to discuss the quality-control system in place at the lab, and the defense cross-examines him trying (often successfully) to show why that system is inadequate.

    Zack, I think concerned reader’s point is that the expert can discuss the quality-control system in place as much as he/she wants. But if that expert did not actually calibrate the machines, set up, and perform the tests — as is typically the case — then he/she is not the expert that the Confrontation Clause is concerned with. The accused has a right to confront the lab technician who actually performed the tests being used against him/her.

  4. a concerned reader says:

    Absolutely Peanut Gallery.

  5. stewie says:

    The problem is, the machine only spits out what goes in. The testing is what matters Zachary, and it seems clear that the majority in Bullcoming think that’s the case and that you have to have the person doing the testing.

    Which makes sense. The whole point of confrontation is to ferret out lies/flaws/errors and having an expert come along and basically say, yep, the computer printout says cocaine metabolytes so he’s guilty is no better qualitatively then having any old Joe come from the facility to say effectively the same thing.

    Now, I could be persuaded that your exception for a supervisor who actually observed the testing being done might hold.

  6. WestCoastDefense says:

    Zach I have to add my voice to those that disagree with your view of the limited impact of Bullcoming. I think it’s important to note that between Kagan, Thomas and Sotomayor – all of whom concurred with respect to Part IV (and Thomas as to footnote 6 … I’d be curious to hear what others think about what Thomas’s reason to abstain from footnote 6 could have been … I’ve read footnote 6 five times and seems pretty innocuous to me .. I’m at a complete loss what his reasoning behind that might have been) it is only Sotomayor of those three who felt the need to draft or join a concurring opinion. And, as has so eloquently been put, at the end of the day the court’s opinion is the court’s opinion.

    Also of note Sotomayor in her concurrence, when discussing the possibility of a supervisor states “It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results.” At least in my service branch our government experts are almost always NEVER involved in the testing of the samples in question in any way shape or form. Even Sotomayor indicates there would have to be SOME type of involvement with the testing merely beyond being an expert employed at or by the lab.

  7. Zachary Spilman says:

    The accused has a right to confront the lab technician who actually performed the tests being used against him/her.

    No, the accused has the right to confront “witnesses against the accused – in other words, those who bear testimony.” Crawford v. Washington, 541 U.S. 36, 51 (2004). This includes ex-parte testimonial statements introduced at trial.

    Machine-generated reports are not testimonial.

    Bullcoming stands for the proposition that when a testimonial report consisting of transcribed machine-generated data and additional, non-machine-generated information is admitted, the author must be subject to cross examination. This isn’t what happens at a court-martial.

  8. stewie says:

    yes machine generated information is not testimonial. Thus, for example, provided it is properly calibrated and used, a breathalyzer is good to go because you breathe into it, and it spits out a number.

    But that isn’t what happens when you do most drug testing, actual humans do actual stuff, enter that information into a computer and then a report comes out.

    And it’s difficult to separate those two things out as drug tests are currently conducted.

    You seem to think that USACIL can do all the testing, then print out a report from a computer, and all the TC needs to do is find any expert who knows what the numbers mean on the paper (with no additional testimony from the actual testers in the printout) and we are good to go.

    Clearly, that isn’t going to fly anymore. Maybe if we just dumped urine into a machine and it spit out a number/drug it might, but that ain’t how it works.

  9. Dwight Sullivan says:

    Zack, at least in Air Force courts-martial, the government does seek to admit non-machine generated information in conjunction with machine-generated data. Even after Blazier, the government has offered into evidence DD Form 2624s with handwritten results and the following signed certification: “CERTIFICATION: I certify that I am a laboratory official, that the laboratory results indicated on this form were correctly determined by proper laboratory procedures, and they are correctly annotated.” The government has also offered numerous pages of drug testing reports bearing signatures of lab officials who aren’t present at trial.

  10. pv says:

    WestCoastDefense, Thomas didn’t join footnote 6 because he doesn’t believe that the “primary purpose” test (set forth in Davis, in Bryant, and in Bullcoming (most emphatically by Sotomayor)) is the proper test to determine the scope of the term “witness” in the Confrontation Clause. Rather, Thomas’s test (first set forth in White v. Illinois, and repeated most recently in Bryant) focuses primarily on the “formality” attending the creation of the out-of-court statement and, with respect to “informal” statements, whether the government was attempting to evade confrontation . Thomas has become the deciding vote in forensic evidence hearsay cases like Melendez-Diaz & Bullcoming. With respect to conventional eyewitness hearsay statements, it looks like the “primary purpose” test (as set forth in Bryant) has the support of at least 6 justices, at least where the hearsay was created by government questioning.

    pv

  11. Bean says:

    A machine generated report wouldn’t be relevant without some sort of testimonial statement showing chain of custody and that the samples tested were the accused’s. So I don’t see how a machine generated report without more will get you there at cm.

  12. Peanut Gallery says:

    A machine generated report wouldn’t be relevant without some sort of testimonial statement showing chain of custody and that the samples tested were the accused’s.So I don’t see how a machine generated report without more will get you there at cm.

    Bingo. The macine-generated, non-testimonial stuff means nothing without somebody’s testimony. Do you trust members to Accurately decipher all those numbers and graphs?

  13. Dew_Process says:

    For a good analysis by veteran SCOTUS reporter, Lyle Denniston, see:
    http://www.scotusblog.com/2011/06/opinion-analysis-new-curb-on-crime-lab-reports/

  14. Phil Cave says:

    I follow these guys a lot on federal evidence issues, here’s their ‘take.’

    http://goo.gl/453c5