Bullcoming v. New Mexico (June 23, 2011, No. 09-10876)



            In a New Mexico DUI trial, the “principle evidence” against the defendant was a laboratory blood alcohol concentration (BAC) report generated by an analyst who had been placed on unpaid leave before trial and did not testify.  His BAC report was admitted as a business record.  The trial witness was a lab colleague who had not participated in or observed the testing.  The New Mexico Supreme Court held that an analyst who had no involvement in the preparation of a forensic alcohol report could testify to the standard procedures used at the lab to record blood-alcohol levels, the testing methods, and defendant’s blood-alcohol level at the time of the test, without violating the confrontation clause.  The United States Supreme Court disagreed and reversed in a 5-4 opinion.

Breakdown of Justices

Parts I, II, III
Ginsburg, Scalia, Kagan, Sotomayor, Thomas

Part II, fn. 6 (“primary purpose” test)
Ginsburg, Scalia, Kagan, Sotomayor


Kennedy, Roberts, Breyer, Alito

Majority Opinion

            The Court held that the lab report was the testimonial statement of the original analyst within the meaning of Crawford v. Washington (2004) 541 U.S. 36; thus its admission into evidence in his absence—where there was no showing that the analyst was unavailable or that the defense had a prior opportunity to cross-examine him—violated the defendant’s confrontation clause rights.  The analyst who prepared the report, observed the Court, was not a “mere scrivener” who simply transcribed machine data.  He also made a number of representations about how the test was conducted that were ripe for exploration through cross-examination.  In any event, any inherent reliability of transcribed instrument data is still subject to testing in the “crucible of cross-examination.”  Significantly, however, only four justices signed on to footnote 6, which reiterated that the defining characteristic of a testimonial statement is its “‘primary purpose’ of ‘establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.’”  (Quoting Davis v. Washington (2006) 547 U.S. 813, 822.) 
            The Court also pointed out that the trial witness in this case was not able to “convey what [the original analyst] knew or observed about . . . the particular test and the testing process he employed,” or identify failures or fraud on the part of the original analyst.  The Court noted, moreover, that the state did not “assert that [the testifying witness] had any “‘independent opinion’ concerning Bullcoming’s BAC.”  The Court thus drew a distinction between questioning an expert offering an independent opinion, and “questioning one witness about another’s testimonial statements . . . .”  The opinion hinged, therefore, on the fact that the prosecution relied on the original analyst’s report as evidence:  “In short, when the State elected to introduce [the original analyst’s] certification, [the original analyst] became a witness Bullcoming had the right to confront.”     
            Finally, the Bullcoming Court rejected the argument that BAC reports are non-testimonial documents, finding that the report at issue resembled “[i]n all material respects” the drug analysis certificate deemed testimonial in Melendez-Diaz.  The fact that the report in Bullcoming was not sworn or notarized was considered immaterial. 

Concurring Opinion

            Justice Sotomayor filed a concurring opinion in part “to emphasize the limited reach of the Court’s opinion.”  She highlighted four factual scenarios not presented for consideration nor resolved by the majority’s opinion:

  1. Where the state contends that an alternate, or even primary, purpose for a report is unrelated to generating evidence for a subsequent prosecution;


  1. Where the trial witness actually played a role in the forensic analysis, whether as an observer or supervisor;
  1. Where the trial witness provides an independent expert opinion concerning another analyst’s reports not admitted into evidence.  Justice Sotomayor cited rule 703 of the Federal Rules of Evidence, analogous to rule 801(b) of the California Evidence Code, as authority for this circumstance, while noting that in Bullcoming “the State does not assert that [the trial witness] offered an independent, expert opinion about Bullcoming’s blood alcohol concentration.”  “We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence,” stated Justice Sotomayor; and


  1. Where a machine generated printout of results, such as that from a gas chromatograph, is introduced by itself without a related report. 


            The dissent, written by Justice Kennedy and joined by Chief Justice Roberts and Justices Breyer and Alito, pointed to the in-court testimony as the factor distinguishing Bullcoming from Melendez-Diaz, and satisfying the confrontation clause in the present case.  According to the dissenters, it should be sufficient that “an employee of the testing laboratory authenticates the findings, testifies to the laboratory’s methods and practices, and is cross-examined at trial.”  Because of the highly automated batch processing of alcohol evidence samples, argued the dissent, any knowledgeable laboratory analyst could discharge that role at trial.  Insisting that the prosecution call the original analyst “is a hollow formality.”   The defense remains free to call rebuttal experts and otherwise point out to the jury that the absence of the original analyst means that the in-court opinion should be accorded less weight.   


            Bullcoming reveals a Court divided on the future of its Crawford jurisprudence.  With only four justices agreeing to the continuing viability of the “primary purpose” test for testimonial statements, for example, that concept is very much in play.    

            With respect to forensic science testimony, the five-justice majority opinion is, as Justice Sotomayor described, limited in reach.  Bullcoming does not categorically foreclose the admissibility of forensic science opinion testimony by an expert who did not perform the laboratory analysis.  More importantly, given that Sotomayor was the fifth vote in Bullcoming, her concurring opinion strongly indicates that she, in conjunction with the 4 dissenters, would find such evidence remains admissible where the original lab report is not offered into evidence, and where the in-court witness provides an independent opinion about the meaning of the data and can adequately describe the testing process, methods, and the quality of the original analyst’s work.  If the testifying witness either observed or participated in the testing as a supervisor or reviewer, it is all the more likely that the confrontation clause is satisfied. 

            In this respect, Bullcoming is not inconsistent with People v. Geier (2007) 41 Cal.4th 555.  In Geier, a lab supervisor who had not performed the testing but who had reviewed the original analyst’s report testified at trial.  The court noted that the accusatory DNA match evidence was “reached and conveyed not through the nontestifying technician’s laboratory notes and report, but by the testifying witness, [the lab director].”  (41 Cal.4th at p. 607.)

            In sum, Bullcoming likely is not the last word of the Supreme Court on the admissibility of forensic science evidence through a witness other than the original analyst(s).  The factual scenarios set forth in Justice Sotomayor’s concurrence will present new contexts in which the Court can revisit this topic.  Meanwhile, there continues to be no Supreme Court authority that bars expert opinion testimony about forensic science testing conducted by another criminalist or pathologist, as long as the original analyst’s report is not received into evidence and the testifying witness offers independent opinions rather than acting as a conduit for the conclusions of the original analyst.


Michael Chamberlain
Deputy Attorney General
AWT / San Francisco