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Galindo and “Substitute Analysts” After Melendez-Diaz

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On October 20, 2009, the North Carolina Court of Appeals decided State v. Galindo, holding that a Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst.

To put the decision in context, recall that last June, the U.S. Supreme Court decided Melendez-Diaz, holding that forensic laboratory reports-such as those identifying a substance as a controlled substance-are testimonial under the new Crawford confrontation clause rule. A more detailed analysis of that case is available here. In State v. Locklear, the North Carolina Supreme Court applied Melendez-Diaz and held that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. As explained in more detail here, in Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in forensic pathology. Butts testified that, according to an autopsy report prepared by a non-testifying forensic pathologist, the cause of the victim’s death was blunt force injuries. Butts also testified about a dental analysis performed by a second non-testifying examiner; Butts testified that by comparing dental records and skeletal remains, that examiner had identified the body as that of the victim. The N.C. Supreme Court found that a Crawford violation had occurred because the reports at issue were testimonial. However, the opinion left some ambiguity about whether a distinction could be drawn between an expert who simply serves as a “mouthpiece” for a non-testifying analyst (arguably what happened in Locklear) and an expert who testifies to an independent opinion based on facts or data reasonably relied upon by experts in the field. In the first situation, the expert’s participation does not change the Crawford analysis: the underlying report is testimonial whether it is introduced in paper form or read into evidence by the testifying expert. In the second situation, it can be argued that the underlying report is no longer testimonial (and thus excluded from Crawford) because it is not being introduced for the truth of the matter asserted but rather as a basis of testifying expert’s opinion, who can be cross-examined at trial.

Galindo, the latest North Carolina case on point, involved the following fact pattern. Evidence was seized from a crime scene and submitted to a police crime laboratory, where an analyst identified the substance as cocaine and determined its weight. When the case was tried, the analyst was working in South Carolina and was not subpoenaed to testify. Instead, the State offered Michael Aldridge, a chemist who had supervised the laboratory for twenty years. Aldridge testified “that in his opinion – based ‘solely’ on the lab report” prepared by the non-testifying analyst, the substance at issue was cocaine and weighed approximately 1,031.83 grams. On appeal, the defendant challenged only that portion of Aldridge’s testimony in which he opined as to weight of the cocaine. Citing Melendez-Diaz and Locklear, the court concluded that “Aldridge’s expert testimony based ‘solely’ on the absent analyst’s lab report” was testimonial. It further concluded that the evidence was inadmissible under Crawford because the State had not established unavailability and a prior opportunity to cross-examine, but that the trial judge’s error in admitting the evidence was harmless beyond a reasonable doubt.

One reading of Galindo is that it rejects the use of substitute analysts who form opinions based on testimonial reports by non-testifying analysts. This reading finds support in the text of the decision, which as noted above, holds that Aldridge’s testimony based solely on the underlying report is testimonial. However, in Galindo, as in Locklear, Aldridge appears to have simply served as a “mouthpiece” for the non-testifying analyst. Although Aldridge testified to an opinion based on the underlying report whereas Butts appears to have simply read the non-testifying analyst’s conclusions into evidence, this might be a distinction without a difference. Recall that Aldridge gave an opinion as to weight of the cocaine. As I understand it, weight of a controlled substance is determined by putting the substance on a scale and recording its weight. If the testifying expert did not do the weighing, what basis is there for the opinion other than a notation on weight made by the non-testifying analyst? If there is no other basis, Aldridge’s testimony arguably was no different from Butt’s testimony in Locklear: repetition of an opinion formed by a non-testifying analyst. Such an opinion is inadmissible. First, testimonial evidence cannot be transformed into non-testimonial evidence simply by having a State expert articulate the empty words, “In my opinion.” Second, as an evidentiary matter, the opinion may be problematic in that it is not based on adequate facts or data. See e.g., State v. Rogers, 323 N.C. 658 (1989). Under this view, admission of Aldridge’s opinion was error but the door is still open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. Of course, North Carolina recently adopted new and revised notice and demand statutes. As discussed here, these procedures may make this issue a moot one in some circumstances. However, when the defendant declines to waive his or her confrontation clause rights, the issue will arise again and thus we are sure to hear more on it from our appellate courts.

3 comments on “Galindo and “Substitute Analysts” After Melendez-Diaz

  1. Would a qualified expert be able to give an opinion with respect to the qualitative and quantitative results recorded/reported by an evidential breath alcohol instrument or blood alcohol instrument (HSGC)? Frequently we are asked to do so on tests that were run by others. Also are there any implications for hospital blood alcohol results which come in under the business records exception?

  2. I assume that in your first question you are asking whether you, as an expert, may rely on tests done by others when giving an expert opinion on retrograde extrapolation. If so, the prosecution may wish to argue (for reasons suggested in my original post) that the underlying reports are not subject to Crawford because they are admitted as the basis of your opinion, not for the truth of the matter asserted. Whether the appellate courts will find this attempt to distinguish Locklear and Galindo persuasive is an open question.
    With regard to your second question, Crawford cited (in dicta) business records as an example of non-testimonial evidence. If a court were to hold hospital records to be non-testimonial business records, Crawford would not apply.

  3. […] is also at play in the “substitute expert” situation, discussed here by my colleague Jessie Smith. In essence, when the state seeks to call a substitute lab analyst, […]

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