Schedule a Free Consultation

Bullcoming and Excessive Speeding

Today the Supreme Court of the United States of America handed down a decision that included Justice Scalia and Justice Ginsburg in a 5-4 majority. In the case of Bullcoming v. New Mexico, the State of New Mexico wanted to put testimony before the jury by having a lab analyst testify to results another lab analyst completed before. This case is not going to have a huge impact on Oahu for drug and DUI cases, as Oahu already generally follows this law. But this case may have ramifications for the charge of Excessive Speeding.

First, the problem with Bullcoming is that the State of New Mexico attempted to substitute the witness without:

  • Telling the Defense Attorney in advance.
  • Telling the Defense Attorney where the actual lab analyst was (even assuming there’s no continuing duty to disclose witness addresses, as there is in Hawaii).
  • Telling the Defense Attorney WHY the Lab Analyst was on unpaid leave.

Now there are about a hundred different reasons to talk about this case. The perfect case choice by the Defense Attorneys. The horrible mischaracterization of statistics by New Mexico:

We note also the “small fraction of . . . cases” that “actually proceed to trial.” Melendez-Diaz, (citing estimate that “nearly 95% of convictions in state and federal courts are obtained via guilty plea”). (all quotes edited for blog ease of reading)

There’s the whole part about the Gas Chromatograph that the State consistently misrepresents how it gives results, (Footnote 1 in the opinion.)

I spoke to a friend of mine who is an ex-prosecutor today and, while admittedly he hadn’t read the case, he mentioned he thought this case simply meant that the Hawaii Supreme Court had decided State v. Fitzwater correctly. While I agree it does mean that, I think it might go deeper. The United States said this:

We granted certiorari to address this question: Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification.

The court reversed, and the main issue is this:

[The substitute witness testified that the unavailable witness] certified that he received Bullcoming’s blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number “correspond[ed],” and that he performed on Bull- coming’s sample a particular test, adhering to a precise protocol. He further represented, by leaving the “[r]emarks” section of the report blank, that no “circumstance or condition . . . affect[ed] the integrity of the sample or . . . the validity of the analysis.” These representations, relating to past events and human actions not revealed in raw, machine-produced data, are meet for cross-examination.

What does that mean for us here in Hawaii? Well, it potentially could have ramifications when employees of the police department use forensic tools.

Excessive Speeding

While this case discusses “Forensic Laboratory”. Clearly, the laser gun they use to give you an excessive speeding ticket in Hawaii is a forensic instrument. Like a microscope looks at microbes, or a ruler measures, The laser gun (generally the LTI 20/20 ultralight, the modern version of the radar) is strictly used for forensic purposes: to measure speed. These laser guns produce “raw, machine-produced data”. That’s how they get your excessive speeding case in the first place.

Is it a stretch to argue to the court that forensic instruments in the field must be held to a much higher standard, the same standard that instruments such as the Gas Spectrometer Chromatograph are held to? Maybe…

But I think it's going to be important to litigate.