A PROPER CROSS-EXAMINATION WOULD INCLUDE QUESTIONS THAT ONLY THE

ACTUAL ANALYST COULD ANSWER.

In amici’s experience, there are numerous areas of cross-examination the defense could pursue with the actual analyst in a case involving blood alcohol concentration, questions the substitute analyst would not be able to answer. The answers to these questions would assist the fact-finder in determining the relia-bility of the evidence and the credirelia-bility of the wit-ness. And although the New Mexico court’s decision was premised on the assumption that analysts would virtually never remember doing a workaday test like the one in Bullcoming, in amici’s experience, in many cases, analysts do remember particular tests, particu-larly if something unusual – such as a machine malfunctioning during testing – occurred. Moreover, even if an analyst does not remember a specific test, cross-examination questions about the analyst’s training and methodology – as opposed to a substitute analyst regurgitating textbook laboratory protocols – may reveal significant flaws in the testing.

For example, questions about the analyst’s training record may reveal improper training by a

predecessor or training to operate a machine different than the one used to test the blood at issue. Questions about an analyst’s employment history might uncover a history of botched test results. Questions about how the analyst generally performs the testing might show that the analyst does not follow laboratory’s protocols. The defense may want to know what time of day the analyst tested the sample, whether the analyst left the room while the sample ran through the machine, or whether the particular machine used had malfunctioned recently.

Defense counsel could ask only the analyst specific questions about the actual testing of a de-fendant’s blood, including, but not limited to the following:

y What qualifications does the analyst have? What is the analyst’s educational background? Has the analyst ever been disciplined or fired? Has the analyst been properly trained? Has the analyst participated in proficiency testing? When?

What were the results?

y Prior to beginning the sampling process, what was the condition of the specimen?

Was there any leakage? What was the specimen volume, and is that volume typical for the tube submitted? Was there any clotting in the sample? Were there any signs of fermentation? Are you familiar with how these factors might affect the accuracy of the test?

y How did the analyst document these or other conditions and when in the ana-lyst’s judgment do they become signifi-cant enough to document?

y Where is such documentation recorded, and where is it kept?

y When the specimen was mixed, how was it mixed? Was the sample rocked on a mechanical rocker, inverted by hand, or shaken? Did the process used introduce bubbles into the specimen, aerating the sample and creating volume differences in sampling?

y What method of GC was used, indirect or direct injection?

y When the specimen was pipetted into the GC vial, how was that accomplished?

Did the analyst use recycled pipette tips? If so, did he or she clean them be-tween uses? How did the analyst ensure that he or she is pipetting consistent amounts of liquid into the vials? How does the analyst determine that the cor-rect amount of internal standard is pi-petted into the vials?

y What did the analyst do to assure that the correct sequence of specimen identi-fication was entered into the run table of the computer that matches the GC out-put to the sample identification? How would the analyst know if he or she had made a mistake in entering this

information? How is the information en-tered, manually, by bar code, or some other method?

y Did the analyst use a salt solution dur-ing the test? If so, why? How much?

y Did the analyst use the standard pa-rameters used by the computer pro-gram? If so, does this ever result in problematic peaks on the chromato-gram? Did the analyst manually enter the parameters? If so, why? Does the analyst ever change the parameters?

Why or why not?

y Did the analyst observe any anomalies in the test results? What does the ana-lyst typically do when he or she notices anomalies? Were any changes made in the computer or instrument program?

Were all of the peaks symmetrical and separate? What does the analyst do when the peaks are not symmetrical and separate? Was the baseline consistent throughout the results? If not, what did the analyst do? Did the analyst alter the results to make them appear normal?

Did the computer make any corrections on this test result? If so, what were they? How could these affect the results of the test?

Guaranteeing criminal defendants the right to cross-examine forensic analysts would not mean that the right would be exercised in every case in

which the prosecution seeks to introduce forensic evidence. Melendez-Diaz v. Massachusetts, 129 S. Ct.

2527, 174 L. Ed. 2d 314 (2009). In many cases, crim-inal defendants do not go to trial or do not challenge the forensic evidence introduced by the prosecution.

But cross-examination of forensic analysts is, in many cases, an essential tool to assist the fact-finder in assessing the reliability of evidence.

III. RECENT CASES CONFIRM THE