In Melendez-Diaz v Massachusetts (129 S.Ct. 2527 [June 25, 2009]), the United States Supreme Court held that the Confrontation Clause requires that in order for the prosecution to be able to introduce a forensic laboratory report at trial, the prosecutor must present a live witness to testify to the truth of the statements made in the report subject to cross-examination.

Today, in Bullcoming v New Mexico (see _US_ [6/23/11]), the Court decided the related issue of 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. By a 5-4 vote, the Court held 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."

Last year I noted concern that Melendez-Diaz, itself a 5-4 decision, may not survive the replacement of Justice Souter, who was part of the majority in Melendez-Diaz, by Justice Sotomayor (see). In Bullcoming, Justice Sotomayor provide the key fifth vote, but but did not join the main opinion and, instead, wrote a concurring opinion emphasizing the limits of the Court's holding, and suggesting that that perhaps a supervisor who had some connection to the test might be an acceptable witness and that many tests would not be testimonial.

So one can expect further testing of the contours and limits of Crawford v Washington (541 U.S. 36 [2004]), particularity by prosecutors who can be expected to use Justice Sotomayor's opinion as a road map as to how to win her vote, and thus, a majority.

It is not coincidental that this difficult 5-4 win was achieved by Jeffrey Fisher, who was the successful advocate in Crawford, and seven other criminal cases at the Supreme Court prior to winning Bullcoming. That would be incredible even if Fisher was not born in 1970. Those of us a bit older who attempt to make careers as appellate counsel are in awe.