The background of the case is relatively straightforward. Bullcoming was sent to prison for felony aggravated OWI. After refusing a breath test, the state took a blood draw pursuant to a search warrant. The state introduced the results of the test by introduction of the lab report. Bullcoming argued that the lab report was testimonial evidence subject to the Confrontation Clause. The state appeals court affirmed the conviction on the grounds that it was a business record and as a public record, the report was non-testimonial and presented no issue under the Confrontation Clause. While the case was pending before the New Mexico Supreme Court, the US Supreme Court issued its decision in Melendez-Diaz v. Massachusetts. The New Mexico court then ruled that the report was testimonial but still admissible even though the analyst who performed the test did not testify because the defendant had the option of crossing a surrogate witness (lab supervisor) instead of the analyst.
Fisher began his argument by postulating that this case should be an easy decision in light of Melendez-Diaz. Justice Ginsburg however quickly intervened and began to question Fisher about the possibility of such lab analysts appearing by video conferencing or some other option ala the child witness under Maryland v. Craig. Justice Scalia indirectly undercut the suggestion by positing whether the police office who took the confession could appear by televideo. Much more time was spent on how does the Court handle the situation where one analyst conducts part of the testing and another does the remainder. Do both have to testify?
This case will either solidify the Court's ruling in Melendez-Diaz or give law enforcement some type of out. We await the Court's decision. It is important to remember that Melendez-Diaz was decided by a 5-4 decision. Two members of the majority, Justices Stevens and Souter, are no longer on the Court.