The United States Supreme Court in Bullcoming vs. New Mexico which was decided on June 23, 2011, found that a person charged with a crime and placed on trial has the right to confront the witnesses against them. If you are charged with a crime, one of the rights you have, is to confront those in Court who have alleged that you have violated the law. The right of a person to have their attorney cross-examine witnesses is a fundamental right under the Sixth Amendment. The West Virginia State Supreme Court through its rulings has likewise supported a lawyers right to be able to cross-examine the witness’ first hand.
The Supreme Court in Bullcoming, in this decision again supported its prior ruling in decision of Crawford vs. Washington, 541 U.S. 36. In Bullcoming, the State introduced a forensic laboratory report certifying the blood-alcohol concentration being above the legal limit into the trial. The problem was this evidence was not introduced through the forensic analyst who did the testing, but through another witness. The State claimed that the analyst was on leave and was therefore unavailable to testify.
The testimony was a clear violation of the confrontation clause because you cannot cross-examine a document when the witness who did the testing does not testify at trial, therefore the reliability of the testing and whether the standards were followed could not be examined. The Defendant could not confront the witness who offered evidence which is a clear violation of a persons right to confrontation. Several years ago, a State crime lab got so backed up that they were not testing evidence to see if it was indeed a controlled substance. They just look at the alleged drugs confirmed that it was the drug they were suppose to test for claiming it was tested, weighed it and certified it as an illegal substance. When this happens, innocent persons can be jailed when they are not allowed to question the evidence.
After the Crawford decision by the United States Supreme Court, other Courts have attempted to place exceptions or limitations on what type of testimony is inadmissible under Crawford. The United States Supreme Courts in Bullcoming discourage this approach. Clearly stated that out-of-court statements that are testimonial in nature are not to be introduced. The Court said that you cannot evade the confrontation clause by using a note-taking police officer and that reliability of the hearsay does not make it admissible.
What occurs is, the police officer would take the stand and testify as to what his investigation was and what the witnesses he interviewed told him in their statements. The Defendant could not question these witnesses directly because they did not testify. Counsel for the Defendant would object to this evidence as hearsay and lack of ability to confront the witness. Judges would allow the testimony and save it was part of his report or part of his investigation. The Supreme Court in Crawford and now in Bullcoming are attempting to put a stop to these types of procedures.
The Court systems throughout the United States make a concerted effort to aid the State and the police in the prosecution of cases. One of the ways this is done, is to allow hearsay and prior testimonial statements into the trial. The founders of our constitution remembered a time persons were jailed and sometimes executed based upon what someone told someone else without the ability to test the truth of these statements. The United States Constitution and our Sixth Amendment were written by our founders for this reason. Sir Walter Raleigh was tried for treason, the evidence against him was statements written by witnesses, which were read during his trial. He had no right to confront his accusers and he paid with his life. The United States Supreme Court is attempting to uphold what the Courts consistently have attempted to take away, your Sixth Amendment right of confrontation.