Colorado Supreme Court 6-27-11 - criminal law - People v. Santana

People v. Santana            Burden Shifting

Facts: Mr. Santana did not understand the target demographic for his product, and chose poorly. Thus, Mr. Santana called out to an undercover cop whether he wanted any ‘dope’ - crack. The undercover cop, of course, said sure, and Mr. Santana sold the cop some dope. No one conducted definitive tests on the substance. The prosecution only called the undercover cop and submitted a lab report that claimed the substance to be crack. No lab analyst for the state testified to the contents of the actual report (an error not addressed in the appeal. See Bullcoming v. New Mexico) Nevertheless, a jury convicted Mr. Santana, but the Court of Appeals reversed his conviction. The CofA held that the prosecutor in questioning the defense expert and in closing argument shifted the burden to the defense. The defense expert testified about the drugs – crack. On cross-examination of the defense expert, the prosecution asked the expert if he had the capability to do independent testing on the crack. Answer: yes. The prosecution asked him if given the opportunity whether the expert would have tested the drugs? Answer: yes. Finally, the prosecution asked the expert if he had tested the substance, whether his tests would definitively conclude whether the substance was indeed crack. Answer: yes. According to the Court the prosecution argument went accordingly, “In his closing argument, the prosecutor told the jury that they should not consider closing arguments as evidence, and then proceeded to discuss the evidence in the case, including the defense’s expert witness’s testimony. The prosecutor compared the evidence offered by the prosecution with the evidence offered by the defense’s expert, stating that all the expert did in this case was to review two documents and say that the substance ‘wasn’t absolutely cocaine.’ The expert ‘didn’t tell you about any analysis he did. He didn’t tell you about whether he spoke to’ the undercover officer or chemist who ran the tests.”

Issue: Whether the prosecution through cross-examination of the defense expert and in closing argument improperly shifted the burden?

Held: No.

Reasoning: The Court unanimously held the prosecution did not shift the burden. Justice Martinez wrote the decision. The Court came up with a three-part test to determine if the prosecution improperly shifted the burden. The Court wrote:

When assessing the strength of the prosecution’s burden-shifting actions and whether they have shifted the burden of proof, courts mainly consider the degree to which:

(1) the prosecutor specifically argued or intended to establish that the defendant carried the burden of proof;

(2) the prosecutor’s actions constituted a fair response to the questioning and comments of defense counsel; and

(3) the jury is informed by counsel and the court about the defendant’s presumption of innocence and the prosecution’s burden of proof.

The Court simply reasoned that based upon the totality of the record, the prosecution rebutted the defense implication, and never explicitly argued that the defense had any burden of proof. The Court wrote:

“Indeed, close examination of the entire record shows that the prosecutor’s questions and comments were likely not designed to imply that the defendant bore the burden of proof, but were instead aimed at: (1) clarifying the defense’s expert witness’s testimony; (2) rebutting the implications -- raised by the defense -- that the prosecution failed to offer conclusive test results because those results would exonerate the defendant; and (3) highlighting the strength of the prosecution’s case.”

U.S. Supreme Court decision criminal law decision Bullcoming v. New Mexico

Bullcoming v. New Mexico      Confrontation - Crawford v. Washington – Surrogate Lab Tech Testimony

Facts: New Mexico alleged and convicted Mr. Bullcoming of driving while intoxicated (DWI)– akin to driving under the influence in Colorado. At trial, the state did not produce the technician who actually conducted the blood alcohol analysis. Instead, the state had another technician who neither consulted, knew, or could verify the lab report – other than it was an official report. Mr. Bullcoming objected under the Confrontation Clause.

Issue: Whether New Mexico violated Mr. Bullcoming’s confrontation rights by allowing a surrogate lab tech can testify to the results of another lab tech’s report, provide foundation for that report, and admit the report into evidence as a business record?

Held: Yes.

Reasoning: Justice Ginsberg wrote the decision for the five-member majority, with Justices Scalia, Thomas, Sotomayor, and Kagan joining the majority opinion. Justices Breyer, Alito, Roberts, and Kennedy dissented.

            Justice Ginsberg wrote, “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.”

            “Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess ‘the scientific acumen of Mme. Curie and the veracity of Mother Teresa.’” quoting Melendez-Dias v. Massachusettes, 129 S.Ct. 2527 (2009)(you can always tell a Scalia quote).