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Justin McShane on the state's Bullcoming brief

By Richard D. Friedman

Justin McShane of Harrisburg, PA, has attempted to comment on the State's brief, but each comment is limited to about 4000 characters, and he had more to say than that, so I'll post his comments here. I hope to add my own comments tomorrow, but meanwhile here is what Justin has to say:

Disclosure: I was one of the amici that filed a brief in support of Bullcoming with NACDL/NCDD.

Here is my analysis of the Respondent?s brief:

1. They spend in an inordinate amount of time trying to explain how GC EtOH determination is non-testimonial. (This is an argument that at least a majority (if not all) of the sitting justices at the time of M-D rejected in the case of GC-MS. For example, the least favorite fan of M-D in J. Breyer even states that such analysis is testimonial, he just believes that the application of the Confrontation Clause is situational? that lab reports are sufficiently reliable? and if the Confrontation Clause does not yield to ?practical realities,? then the system may be over-taxed.)

1.1 They try to rationalize that this method of analytical measurement and testing was not made for the primary purpose of litigation in criminal court. (Why else was it analyzed?)

1.2 Failing that they try to say somehow that if it is unsworn and not in an affidavit that somehow it being ?less formal? that the right to Confrontation based upon its contained assertions is not guaranteed. (Perhaps this meant to appeal to Thomas?s opinion of concurrence in M-D.)

1.3 If that fails, then they urge the Court to roll back to 1986 in Inadi (and really back to Roberts in 1980) in favor of the subjective ?sufficient reliability? test and abandon the Davis rule (which they may do any way in Bryant), in favor instead of a notion that the applicable test should be whether or not it was generated in substitution of live testimony, then it would be testimonial (which begs the question that how does the particular facts in Bullcoming dictate a result of it being anything other than testimonial even if we now use this rationale which they urge to be adopted?)

1.4 But why stop to 1986 or even 1980, they next argue. Let?s go all the way back to the bail statute of 1554 and argue that Confrontation only applies to pre-trial ex pate judicial examinations of a witness in lieu of the witness?s appearance at trial. Confrontation doesn?t apply at trial at all. (Maybe trying to appeal to Scalia?s originalism, but forgetting he put together Crawford, Davis, M-D, and held the majority together with Briscoe)

1.5 Failing that that somehow the mere fact that the analysts are ?public officials? and the computer is ?non-adversarial,? and the mistaken belief that the analysis requires no interpretation whatsoever, then Confrontation is excused.

1.6 Failing that (perhaps attempting to seize upon the Scalia?s and Thomas?s perceived desire to narrow the Exclusionary Rule in modern 4th Amendment analysis), they argue that the right to Confrontation should be seen as a prophylactic rule (which is really amazing to me, because a classic definition of a prophylactic rule is one that gives more protection than such right might abstractly seem to require on its face, in order to safeguard that constitutional right or improve detection of violations of that right). Clearly, it is not prophylactic even as applied in the case of M-D or even Briscoe.

2. It is not until page 52 of the 59 page brief that we get to anything that remotely addresses the question presented and certified by the SCOTUS which is ?Whether the Confrontation Clause permits the prosecution to introduce *****testimonial statements***** of a non testifying 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.? Note that contained within the certified question itself from the SCOTUS that the SCOTUS itself even states that it is a ?testimonial statement.? In sum, they argue:

2.1 Retesting (by the same lab and probably the same analyst) is the same as cross-examination (which is really admirably ignorant of the process). In fact, they assert that retesting (by the same lab and probably the same analyst) is actually better and more effective than Confrontation of the particular witness, meaning the actual analyst who did the testing.

2.2 The sky will fall and evil doers will run amuck. Bullcoming, if decided in accordance with Crawford and M-D, will be an extinction level event just like the solar flare in the movie ?Knowing.? (I am being facetious, but you argue the absurd with the absurd, I suppose)

2.3 Any old analyst is just as good as the particular analyst who performed the test even if that surrogate has no idea what actually happened in the testing itself.

2.4 It was all harmless error because let's face it he was drunk. If they finally fail, they ask that it be remanded for the state court to determine whether or not it was all harmless beyond a reasonable doubt given these facts.

That's my take on it.

[As an aside, I really appreciate the blog and your efforts to bring Confrontation and other important and timely issues to the forefront.]

Justin J. McShane
www.TheTruthAboutForensicScience.com
www.TheMcShaneFirm.com
www.PADUIBlog.com

Full post as published by The Confrontation Blog on January 11, 2011 (boomark / email).