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.