Bullcoming v. New Mexico - Oral Argument - March 02, 2011

Bullcoming v. New Mexico

Media for Bullcoming v. New Mexico

Audio Transcription for Opinion Announcement - June 23, 2011 in Bullcoming v. New Mexico

Audio Transcription for Oral Argument - March 02, 2011 in Bullcoming v. New Mexico

John G. Roberts, Jr.:

We will hear argument first this morning in Case 09-10876, Bullcoming v. New Mexico.

Mr. Fisher.

Jeffrey L. Fisher:

Mr. Chief Justice, and may it please the Court:

The text, purpose, and history of the Confrontation Clause make it clear that the prosecution cannot introduce one person's testimonial statements through the in-court testimony of someone else.

Thus, having held in Melendez-Diaz that a lab analyst's statements in a forensic lab report are testimonial, this is an easy case.

The State violated the Confrontation Clause by introducing lab analyst Curtis Caylor's statements in a forensic lab report without putting him on the stand.

The New Mexico Supreme Court resisted this analysis, straightforward as it is, on the ground that Mr. Bullcoming, as the defendant, had the opportunity to cross-examine a substitute or a surrogate witness, Mr. Razatos.

But a surrogate witness procedure violates all four components of the right to confrontation.

It quite obviously violates the defendant's right to have the witness testify in his presence, in the presence of the jury so the jury can observe it, and under oath, as happened in this case.

Ruth Bader Ginsburg:

Mr. Fisher, when you say "in the presence", do you -- do you mean it necessarily must be in the courtroom, or would a video-conferencing set-up be permissible so that the technician or the analyst could testify from the lab, rather -- but it would be screened in -- in the courthouse?

Jeffrey L. Fisher:

Well, the default rule under the Confrontation Clause is in presence, in the courtroom.

Now, in Maryland v. Craig, this Court held in a child witness setting -- of course, very different than this case -- that closed-circuit TV would be permissible, and I believe, you know, in a future case, if the State perhaps made some sort of showing that the lab analyst couldn't come to court for some reason, and certainly if the defendant stipulated, and maybe even if the defendant didn't stipulate, a court could accommodate--

Ruth Bader Ginsburg:

The defendant didn't give his consent, so we don't -- that's not a concern, but let's -- let's suppose defendant doesn't stipulate.

Is this adequate to meet the Confrontation Clause?

Jeffrey L. Fisher:

--I don't think it would be adequate, Justice Ginsburg, with at least some -- absent at least some showing of unavailability of the witness or -- making the witness unable to come to court.

Now -- now, there is an amicus brief in the case, I believe, that suggests some flexibility that trial judges might employ in -- in accommodating lab analysts' schedules.

Antonin Scalia:

What about police witnesses?

What about not requiring the officer who -- who took the confession or who witnessed the alleged crime -- not requiring him to appear because he's busy?

Jeffrey L. Fisher:

Well, that's never been--

Antonin Scalia:

Can't make it.

He's out on the beat.

So can we have him appear by television?

Jeffrey L. Fisher:

--That's never been the rule, Justice Scalia, and I don't think there would be a need to--

Antonin Scalia:

Why -- why is a lab technician different?

Jeffrey L. Fisher:

--I don't think -- I don't think one is, and you don't have to reach that in this case, because the State never attempted to make any showing that Mr. Caylor was unavailable for any reason.

This--

John G. Roberts, Jr.:

Mr. Fisher, what if you had two people doing this procedure?

They're sitting in, you know, chairs right next to the other.

The one, you know, takes the blood samples from the vials, puts them in another vial, and puts the aluminum stuff on and crimps it.

The other one then takes the vials and puts them in the machine and runs it.