A major storm sits over the entire fifty states following the Supreme Court’s ruling in Bullcoming v. New Mexico. In that case the Supremes told the prosecutors that they have to honor DUI defendants rights of cross examination and produce all of the witnesses. A continual shower of cases show judges across the nation trying to interpret that ruling. One issue unresolved is the definition of “testimonial.” If the, in this case, certificate of repair is testimonial then the prosecutor must produce them at trial to face the ultimate arbitrator of truth – cross examination.
In Bullcoming the Supremes found that the lower court erred in admitting a report of chemical blood test report. They reasoned that the report was created solely for the evidentiary purposes and was made in aid of the police investigation. Here, Indiana appellate judges uniquely recall Bullcoming and distinguish it as not defining “testimonial”.
The actual issue before the Court was whether the defendant’s confrontation right was satisfied by live testimony from a surrogate analyst who was generally familiar with the laboratory’s procedures but was not the person who tested the blood, not whether the definition of “testimonial” needed to be reconsidered. Id. at 2710, 2713. Therefore, the case did nothing to alter the definition of “testimonial” evidence as set forth in Crawford and Melendez-Diaz. Rather, the Court held that Melendez-Diaz forecloses any argument that the laboratory test report was nontestimonial. Id. at 2716-17. Because the decision in Bullcoming does not alter the definition of “testimonial,” it does not change our analysis of whether DataMaster inspection certificates fit within that definition. Indeed, in Justice Sotomayer’s concurrence, she repeated the language from Melendez-Diaz that not every person whose testimony may be relevant to establishing the “accuracy of the testing device” must appear in person. Id. at 2721 n. 2.
To be sure, neither Melendez-Diaz nor Bullcoming specifically state that routine calibration records are always nontestimonial. See Ramirez, 928 N.E.2d at 219. However, we echo the Ramirez court in holding that “at a minimum [the Supreme Court] leaves the question unresolved and demands the same type of scrutiny that we have undertaken since Crawford.” See id. In short, under Ramirez and similar cases, the trial court did not violate the Sixth Amendment when it admitted the DataMaster inspection certificates into evidence.
Daniel Minnick v. State of Indiana, UNPUBLISHED, No. 92A03-1106-CR-228, Court of Appeals of Indiana, January 3, 2012.