Yesterday, the Supreme Court released its opinion in Bullcoming v. New Mexico, holding that the Confrontation Clause of the Sixth Amendment to the Constitution requires that the forensic analyst who prepares a report, or someone with personal knowledge of the test, be present in court in order for the evidence to be admitted. In Bullcoming, the prosecution introduced a report on a blood alcohol level test that had prepared by one analyst, but was presented in court by another. The analyst who appeared in court did not oversee the test or conduct a re-test. By a narrow margin, the majority of the Court held that the report was improperly admitted into evidence as the defense did not have an opportunity to cross-examine the person who prepared it.
For ISPs who are frequently called as witnesses to authenticate business records produced in criminal investigations, this new decision may raise concerns about whether the practice of sending someone other than the person who assembled the records in response to the government’s request will continue to be viable. Justice Ginsburg, who wrote the opinion for the majority, noted in a footnote that business records and statements on the public record may be treated differently; however,the footnote (footnote 6) is not part of the majority opinion. In her concurrence, Justice Sotomayor suggested that if a machine simply spits out results that it is sufficient to have someone who is familiar with the technology testify.
There are strong arguments that the facts of this case and the processing of a BAC test are substantially different than gathering business records in response to a search warrant or court order. However, defense counsel may look to use this new ruling as a way to keep out electronic records that are unhelpful to the defense’s case. Prosecutors may start specifically subpoenaing testimony from individuals who prepare subpoena productions. If this should happen, it may be wise to look to the practical advice offered separately by Justices Ginsburg and Sotomayor, who suggest, respectively, that practical ways to avoid a problem is to have the evidence re-tested by the person who will testify or to send a supervisor who may have observed the process.
