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''Read the full article for details about the following new cases:''
* Confrontation Clause Bars "Surrogate" Forensic Lab Certifications

In [http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf ''Bullcoming v. New Mexico''], the defendant sought certiorari on whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or personally observe the laboratory analysis described in the statements. In a 5-4 decision, the Court answers no:

<blockquote>

''"We hold that surrogate testimony of that order does not meet the constitutional requirement. 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."''

</blockquote>

As an initial matter, a majority of the Court (5) first disposes of the notion that the lab analyst certification at issue here merely transcribed a "machine-generated" number. Rather, the certification involved a series of representations "relating to past events and human actions not revealed in raw, machine-produced data:"

# [The non-testifying analyst] 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 "corresponded;"
# That he performed on Bullcoming's sample a particular test, adhering to a precise protocol; and
# By leaving the "remarks" section of the report blank, that no "circumstance or condition affected the integrity of the sample or the validity of the analysis."

Under ''Melendez-Diaz'', these representations are "testimonial" even despite the purported "obvious reliability" of the test result. The Court bluntly explains that "the comparative reliability of an analyst's testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar." In arriving at this conclusion, the Court rejects the State's argument that the fact that the lab tech certifications at issue was "unsworn" was enough to distinguish ''Melendez-Diaz''. The Court rules that the attendant formalities were sufficiently testimonial, and that "in Crawford, this Court rejected as untenable any construction of the Confrontation Clause that would render inadmissible only sworn ''ex parte affidavits'', while leaving admission of formal, but unsworn statements 'perfectly OK.'

Next, the Court explains that the "surrogate" testimony of a non-observing lab tech offered by the state fails to meet the constitutional muster for two main reasons. First, that testimony "could not convey what [the certifying analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed." This fact is crucial even despite the probability that the certifying analyst may not remember all pertinent details. Second, "[n]or could such surrogate testimony expose any lapses or lies on the certifying analyst's part." The fact that the analyst at issue here had been dismissed for unspecified reasons was crucial.

These considerations lead the Court to the "fundamental" observation that the text of the Sixth Amendment does not allow courts to develop "open-ended exceptions" for "reliable" surrogate witnesses. As the Court explains,

<blockquote>

''"the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination."''

</blockquote>

Dissents and concurrences are worth reading. Also, note that only a plurality accepted Justice Ginsburg's effort to craft a slightly more specific definition of "testimonial" in footnote 6 of the opinion that incorporates the ''Davis ''"primary purpose" test. Justice Thomas declined to join that endeavor. More information on ''Bullcoming v. New Mexico'' can be found at the SCOTUSblog case page, [http://www.scotusblog.com/case-files/cases/bullcoming-v-new-mexico?wpmp_switcher=desktop available here].

[http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf ''Bullcoming v. New Mexico'']

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@@ Line 1: / Line 1: @@
 ''Read the full article for details about the following new cases:''
-* Confrontation Clause Bars "Surrogate" Forensic Lab Certifications
+* Applying Post-Plea Changes to the US Sentencing Guidelines
-In [http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf ''Bullcoming v. New Mexico''], the defendant sought certiorari on whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or personally observe the laboratory analysis described in the statements. In a 5-4 decision, the Court answers no:
+In [http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf ''Freeman v. United States''], the Court addressed whether a defendant is ineligible for a sentence reduction under 18 U.S.C. § 3582(c)(2), which allows a district court to reduce a term of imprisonment after it has been imposed if the defendant was sentenced based on a sentencing range that the U.S. Sentencing Commission subsequently lowered, because the district court accepted a plea agreement pursuant to Rule 11(c)(1)(C), which binds the district court as to sentence once it accepts the plea. In a plurality opinion, supplemented by Justice Sotomayor's concurrence, the Court answers yes.
-<blockquote>
+I'll let you sort out the more technical distinctions between the plurality and the controlling concurrence, but Justice Sotomayor agrees with the plurality on the pivotal principle that the sentence at issue here was "based on" § 3582(c)(2). The key distinction is that Justice Sotomayor appears to believe this to be the case only when "a [Fed.R.Crim.P 11(c)(1)(C)] agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission."
-−
-''"We hold that surrogate testimony of that order does not meet the constitutional requirement. 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."''
-−
-</blockquote>
-−
-As an initial matter, a majority of the Court (5) first disposes of the notion that the lab analyst certification at issue here merely transcribed a "machine-generated" number. Rather, the certification involved a series of representations "relating to past events and human actions not revealed in raw, machine-produced data:"
-−
-# [The non-testifying analyst] 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 "corresponded;"
-# That he performed on Bullcoming's sample a particular test, adhering to a precise protocol; and
-# By leaving the "remarks" section of the report blank, that no "circumstance or condition affected the integrity of the sample or the validity of the analysis."
-−
-Under ''Melendez-Diaz'', these representations are "testimonial" even despite the purported "obvious reliability" of the test result. The Court bluntly explains that "the comparative reliability of an analyst's testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar." In arriving at this conclusion, the Court rejects the State's argument that the fact that the lab tech certifications at issue was "unsworn" was enough to distinguish ''Melendez-Diaz''. The Court rules that the attendant formalities were sufficiently testimonial, and that "in Crawford, this Court rejected as untenable any construction of the Confrontation Clause that would render inadmissible only sworn ''ex parte affidavits'', while leaving admission of formal, but unsworn statements 'perfectly OK.'
-−
-Next, the Court explains that the "surrogate" testimony of a non-observing lab tech offered by the state fails to meet the constitutional muster for two main reasons. First, that testimony "could not convey what [the certifying analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed." This fact is crucial even despite the probability that the certifying analyst may not remember all pertinent details. Second, "[n]or could such surrogate testimony expose any lapses or lies on the certifying analyst's part." The fact that the analyst at issue here had been dismissed for unspecified reasons was crucial.
-These considerations lead the Court to the "fundamental" observation that the text of the Sixth Amendment does not allow courts to develop "open-ended exceptions" for "reliable" surrogate witnesses. As the Court explains,
+The dissent agrees and disagrees with both the plurality and the concurrence. In her concurrence, Justice Sotomayor had initially opined that "[i]n my view, the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C)is 'based on' the agreement itself, not on the judge's calculation of the Sentencing Guidelines." The dissent believes that she got it right, and should have stopped there:
 <blockquote>
-''"the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination."''
+''I agree with the concurrence that the sentence imposed under a Rule 11(c)(1)(C) plea agreement is based on the agreement, not the Sentencing Guidelines. I would, however, adhere to that logic regardless whether the agreement could be said to 'use' or 'employ' a Guidelines range in arriving at the particular sentence specified in the agreement. In that respect I agree with the plurality that the approach of the concurrence to determining when a Rule 11(c)(1)(C) sentence may be reduced is arbitrary and unworkable''
 </blockquote>
-Dissents and concurrences are worth reading. Also, note that only a plurality accepted Justice Ginsburg's effort to craft a slightly more specific definition of "testimonial" in footnote 6 of the opinion that incorporates the ''Davis ''"primary purpose" test. Justice Thomas declined to join that endeavor. More information on ''Bullcoming v. New Mexico'' can be found at the SCOTUSblog case page, [http://www.scotusblog.com/case-files/cases/bullcoming-v-new-mexico?wpmp_switcher=desktop available here].
+That appears to be the crux of the argument between the opinions in this case. So, as noted above, for now I'll leave you with the task of sorting out the more particular details. More information on ''Freeman v. United States'' can be found at the SCOTUSblog case page, [http://www.scotusblog.com/case-files/cases/freeman-v-united-states?wpmp_switcher=desktop available here].
-[http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf ''Bullcoming v. New Mexico'']
+[http://www.supremecourt.gov/opinions/10pdf/09-10245.pdf ''Freeman v. United States'']
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