Just this last term, the Supreme Court was presented with the opportunity to tackle one of these issues in a case styled Bullcoming v. New Mexico. In Bullcoming the Court was specifically asked to determine: “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.” Melendez-Diaz left that issue untouched, since no attempt was made by the prosecution to use an in-court substitute witness for the analyst. The evidence at issue in Melendez-Diaz was an affidavit or report of the testing analyst. Only this somewhat narrow question was presented to the Supreme Court in Bullcoming. But the opportunity was there to address many of the other nine issues we have identified. Although prosecutors, crime labs, law enforcement officials, defense lawyers, judges, and Evidence and Confrontation Clause scholars would have dearly loved—indeed, needed—to see the Court tackle all of these broader issues, there is an argument of judicial restraint that counsels against a court taking on issues unnecessary to the particular decision— issues that are not specifically raised, briefed, and argued in the case before it—on the grounds that such excursions are likely to be poorly thought out. It is not the purpose of this Article to weigh in on whether the Bullcoming Court should have tackled these broader issues. There are benefits to both views. Rather, our purpose is to set out the nine issues regarding Confrontation law as applied to scientific reports that arise after Melendez-Diaz, and examine what, if anything, the Court said or implied about such issues in Bullcoming. We will also venture some tentative thoughts of our own on each of these issues, and some consequences of the various possible views. Part II provides some case law history of Confrontation Clause jurisprudence so that the issues may be placed in their historical and analytical context. Part III sets forth the facts, the lower court proceedings, and the Supreme Court decision, in Bullcoming. Part IV identifies the nine important issues that arose prior to Bullcoming and discusses where they stand after that decision. Also considered in that Part are some consequences to law enforcement policy. Finally, Part V presents our conclusions. Even though the Supreme Court in Bullcoming chose to refrain from laying to rest most of the issues we identify, we hope that this paper will, at least, add to the ongoing dialogue on forensics and confrontation rights, and encourage more work in this important and developing area of law.
Ronald J. Coleman and Paul F. Rothstein,
Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-type Reports,
90 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol90/iss2/2