August 01, 2011
On June 23, 2011, the Supreme Court announced its decision in Bullcoming v. New Mexico. The question in this case was whether "the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification--made for the purpose of proving a particular fact--through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification."
Justice Ginsburg delivered the opinion of the Court, except with regard to Part IV and footnote 6. The Court by a vote of 5-4 held that surrogate testimony of the sort in the immediate case does not meet the requirements of the Confrontation Clause. The Court explained that "the accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist."
Justice Scalia joined Justice Ginsburg's opinion in full. Justices Sotomayor and Kagan joined all of Justice Ginsburg's opinion except for Part IV. Justice Sotomayor also filed an opinion concurring in part. Justice Thomas joined all of Justice Ginsburg’s opinion except for Part IV and footnote 6. Justice Kennedy filed a dissenting opinion, which Chief Justice Roberts and Justices Breyer and Alito joined.
To discuss the case, we have Stephanos Bibas, who is a Professor of Law and Criminology and Director of the Supreme Court Clinic at the University of Pennsylvania Law School.