By on June 24, 2011

In a decision that has wide-ranging implications for photo enforcement, speeding tickets and driving under the influence of alcohol (DUI) charges, the US Supreme Court yesterday reconfirmed the Sixth Amendment right to confront one’s accuser applies to analysts who claim to have certified evidence from a machine. The 5-4 decision concluded that “stand-in” expert witnesses are not a substitute for the individuals who actually conducted the tests. The decision broadens the applicability of the landmark Melendez-Diaz ruling from 2009, which has already led to appellate division cases in four California counties to throw out red light camera evidence.

The high court examined the case of Donald Bullcoming whose vehicle rear-ended a truck belonging to Dennis Jackson in Farmington, New Mexico on August 14, 2005. Jackson went to exchange insurance information with Bullcoming and noticed that the man smelled of alcohol. Bullcoming fled the scene on foot before police arrived, but Officer Marty Snowbarger caught up to him and arrested him for DUI. After a breath test was refused, Snowbarger obtained a warrant to take Bullcoming’s blood. Forensic analyst Curtis Caylor’s test of this sample showed a blood alcohol content (BAC) of 0.21, a result that served as the primary evidence against Bullcoming at trial.

The blood testing process is performed by a gas chromatograph machine but remains subject to human error. The court noted a “fairly complex” Colorado lab mistake systematically produced high BAC readings for 206 defendants. Caylor did not testify at trial because he had been put on unpaid leave from his job for an unspecified reason. Instead, Gerasimos Razatos testified regarding the results which he had neither observed nor reviewed.

The high court examined the question of whether a lab report could be introduced as evidence by an “expert” who did not actually conduct the tests in question. The prosecution argued that the gas chromatograph machine was the accuser in the case and that Caylor simply wrote down the result without exercising independent judgment. For that reason, Razatos was an equivalent substitute. The court disagreed.

“Suppose a police report recorded an objective fact — Bullcoming’s counsel posited the address above the front door of a house or the read-out of a radar gun,” Justice Ruth Bader Ginsburg wrote for the majority. “Could an officer other than the one who saw the number on the house or gun present the information in court — so long as that officer was equipped to testify about any technology the observing officer deployed and the police department’s standard operating procedures? As our precedent makes plain, the answer is emphatically ‘No.'”

The court majority noted that using a surrogate witness would conceal any lapses or lies on the part of the certifying analyst. It also noted that the burden on the prosecution from the requirement of live testimony could have been cured by having Razatos retest the blood sample, which was preserved in accordance with New Mexico law.

“As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness,” Ginsburg concluded.

The decision represented a rare coalition of the most liberal and most conservative members of the court. Ginsburg and President Obama’s nominees to the court, Justices Sonia Sotomayor and Elena Kagan, were joined by Justices Antonin Scalia and Clarence Thomas.

A copy of the decision is available in a 275k PDF file at the source link below.

Source: PDF File Bullcoming v. New Mexico (US Supreme Court, 6/23/2011)


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12 Comments on “US Supreme Court Confirms Confrontation Right in Radar, DUI Cases...”

  • avatar

    The system works: a loser gets off on a technicality, but the technicality is protecting all of us.

  • avatar
    DC Bruce

    Well, this is not really a technicality; it is a basic feature of our justice system: the right of the accused to confront any witness testifying against him and the fact that only certain, limited kinds of documentary evidence (which is what this lab report was) are considered self-authenticating and do not require a witness (who created the document or report) to sponsor it in evidence. In my own personal experience in The Capital of the Free World with a speed camera, I received a citation identified to the license plate of one of the cars that I own, a blue 1992 Volvo 740. Unfortunately, the car in the photo — while it appeared to have my license plate — was a white Toyota Tercel wagon from the 1980s. Assuming the intrepid DC government is not issuing duplicate license plates, the availability of a sponsoring witness for that speed camera and the chain of custody of the evidence it produced (i.e. the photograph) to explain how it was that the device produced a photograph of a vehicle that obviously was not my car with my license plate on the rear.

    Of course, the “speed demons” immediately dismissed the ticket when I pointed out to them that the car in the photograph did not match the make and model of the vehicle printed on the citation.

    Which also says a lot about the so-called human quality control of these things.

  • avatar
    Sgt Beavis

    I agree that a loser is getting away with his crime but this ruling is full of WIN for the rest of us..

  • avatar

    It is exactly a technicality: a strict reading of the law allowed someone to get away with something they actually did (he WAS drunk). I’m OK with that.

    • 0 avatar

      If you’re basing the “he WAS drunk” statement off of the blood test results, the very point of the ruling is that you can’t definitively say that without the right to cross examine the person who certified the test results. Maybe he performed the test incorrectly. Maybe he used the wrong blood. Maybe he fudged the results.

  • avatar

    Every now and then we see an alignment of Supreme Court stars that renews my faith in our judicial system.

  • avatar

    I agree with this ruling. In the example, the officer should have been at the courthouse even if he was on unpaid leave. He was a witness, and if he didn’t show up, arrest him.

    • 0 avatar


      • 0 avatar

        He isn’t an officer but is more along the lines of a crime scene technician. Contracted to follow law enforcement policy and state procedures.

        Arrest him? The prosecution dropped the ball here and should have worked more to ensure witnesses assist with the case. If they are going to blindly follow a machine readout they need to test with two different labs if justice is going to be served.

  • avatar

    As interesting as the legal argument and precedent is that the two extremes of the court formed the majority opinion. As a good friend of mine often notes, the political spectrum is actually a mobius strip.

  • avatar

    The net effect of this will be that the red light camera thieves…whoops, I mean the dedicated enforcement personnel keeping us all from dying suddenly…will have a more difficult time proving these cases. They’ll have to show up and testify. Guess what that means? It’ll cost more.

    Good…that’ll cut these companies’ profits, meaning they’ll raise prices…and the municipalities will raise the penalties, increasing public resistance to these abominable devices.

    A good piece of news.

    • 0 avatar

      I’m not so sure about that FreedMike.

      We recently had elections here a few months ago. There were 2 independents and 3 in the “abolishtheredlightcamera” party. voter turnout was 14%.

      The 2 independents finished 1 & 2. The anti-red-light-camera people finished 3-5. I really wanted to cry when I saw that…

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