Foundation for a Substitute Analyst’s Opinion after Melendez-Diaz

As summarized in Jeff’s recent blog post, in State v. Brennan, the North Carolina Court of Appeals applied Locklear and Mobley and held that the defendant’s confrontation clause rights were violated by the testimony of a substitute analyst in a drug case. My own summaries of Locklear and Mobley are available here and here. Jeff got it right when he stated in his post that in light of the case law, the “quality of the lawyering and the ability of the witnesses to describe the review process may make a crucial difference” in a court’s decision about the admissibility of substitute analyst testimony.

So what’s a prosecutor to do? Here is some guidance.

After the witness is qualified as an expert, it is necessary to establish that the underlying reports are a basis of the expert’s opinion and that the expert’s opinion is an independent one, formed after his or her own analysis of the underlying data. If the expert merely reports the results of a non-testifying analyst, the evidence will be inadmissible. The following questions, formulated for use in a drug case, will help you to lay the appropriate foundation for this testimony.

  • Are you familiar with the tests that are done to identify a substance as a controlled substance?
  • What are those tests?
  • What type of equipment is used to do them?
  • What are the steps involved with doing those tests?
  • What types of results do they yield?
  • How are those results reported?
  • How accurate are those test results generally?
  • Have you reviewed the substance at issue in this case?
  • Have you reviewed the tests that were done in this case?
  • Were the appropriate tests done in this case?
  • How do you know that the appropriate tests were done?
  • Was the appropriate equipment used?
  • How do you know that the appropriate equipment was used?
  • Were all the steps of the testing procedure followed?
  • How do you know that all of the steps of the testing procedure were followed?
  • Are there any tests that were not done but should have been done?
  • Have you reviewed the results of the tests that were done in this case?
  • Specifically, what data did you review?
  • What is your opinion of the accuracy of the data obtained in this case?
  • Is this type of data – raw data generated from tests actually conducted by another person – normally relied upon by experts in your field to formulate opinions about the identity of a substance?
  • Did the data obtained provide you with enough information to form your own opinion about the identity of the substance at issue?
  • What is your opinion about the nature of the substance at issue?
  • On what information did you base that opinion?
  • In formulating your opinion, did you rely on the opinion of the analyst who performed the tests?

If an objection is made as to the testimonial nature of the underlying report, the prosecutor’s response should be that the report is not being admitted for its truth but as a basis of the expert’s opinion and thus is not covered by Crawford (recall that Crawford only applies to hearsay statements; if a statement is not offered for its truth, it’s not hearsay). If a limiting instruction is requested by the defense, it should be given by the judge.

If folks have suggestions on how to improve on the proposed colloquy, post away!

5 thoughts on “Foundation for a Substitute Analyst’s Opinion after Melendez-Diaz”

  1. this is off topic. If a defendant pleads guilty to felony possession of cocaine and then after the plea of guilty gets a 90-96, and with that deal the defendant is ordered to complete probation for 12 months and after probation he gets the charge dismissed, can this defendant while in the middle of probation be charged with possession of firearm by felon?

    • I would believe so – because it sounds like you have the basis for violating his probation under the 90-96, assuming he is convicted of the charge. It would depend on the circumstances, but if he has violated his probation in any other way than the new charge, you would definitely have the right to charge the possession, because he has already violated the conditions of the 90-96.

  2. I’m not sure this colloquy will pass muster under the case that came out today from the Court of Appeals, State v. Brewington.


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