Avoiding confrontation 101

Last Thursday I wrote about what the Supreme Court had to say about confrontation and scientific reports in the Bullcoming opinion. The Court's decision does not mean, however, that the only person who can testify about the results of a lab report is the analyst who authored it.

In Bullcoming, the lab report included observations about the condition of the blood tubes and the procedures followed in testing the blood sample. The analyst who testified (not the author of the report) was not asked whether he had developed an independent opinion of the underlying test.

First let's assume that the report does not contain any personal observations of the analyst but consists merely of the results of the test. In that case, another analyst can testify as to the results of the test - but not to the manner in which the test was conducted. Whether such a scenario actually affords a defendant the opportunity to confront the witnesses against him is another story, however.

Now let's say that the analyst's supervisor had observed the analyst conduct the blood test. Then let's say that, just as in Bullcoming, the analyst was not called to testify. The supervisor could have testified to the contents of the report that he observed.

Now let's assume the other analyst conducted a second test on the blood sample. If the results of his test and the result of the test referenced in the lab report were consistent, the other analyst could have testified to his independent opinion about whether the driver was intoxicated at the time of the test (or driving).

Finally, let's not forget that the original analyst was on unpaid leave for an undisclosed infraction at the time of trial. The defendant was entitled to explore the reason for his being placed on leave as it might be relevant as to the trustworthiness of his testimony or the test results.

As a colleague of mine pointed out last week, the Court's opinion in this matter - particularly Justice Sotomayor's concurring opinion - is a primer in how the state can get lab reports (or at least the results of lab tests) into evidence in the absence of the analyst who either conducted the tests or wrote the report.

So while the Bullcoming decision is a victory for the right of confrontation, it's also a blueprint for the state in how to get around it.