Move to Strike My Last Post!

In a recent post, I suggested that by establishing a good foundation, the State may be able to overcome a confrontation clause objection to its use a substitute analyst in a drug case. In its recent opinion in State v. Brewington, the N.C. Court of Appeals held that the trial court committed reversible error by allowing a substitute analyst to opine that a substance was cocaine. The decision might suggest that my teenagers are on to something when they repeatedly exclaim: “Mom, you don’t know anything!”

Brewington was a drug case. Testing was done at the SBI laboratory by Nancy Gregory and reviewed by the Drug Chemistry Section’s supervisor, Ann Hamlin. At trial, the State offered SBI Special Agent Schell, an expert in forensic chemistry, to testify to the nature of the substance at issue. The defense objected on confrontation clause grounds, arguing that Schell shouldn’t be allowed to testify because she didn’t do the underlying tests. The objection was overruled and Schell testified that the substance was cocaine base. After testifying about lab procedures, direct examination of Schell continued as follows:

Q. [W]ho . . . analyzed the sample . . . ?

A. Nancy Gregory.

. . . .

Q. And according to the lab notes . . . [w]hat types of tests were performed on this sample?

A. There were two preliminary color tests, a preliminary crystal test and a more specific instrumental analysis test that was conducted on this piece of evidence.

. . . .

Q. And from the notes . . . were you able to determine what the result was of this particular color test?

A. In this particular color test it did not turn any color.

Q. And based on your training and experience, what does that indicate?

A. That indicates that such drugs like heroin, which would turn purple for this test; or methamphetamine, which would turn orange, are not present. We’re looking for something that doesn’t turn this particular color test a color.

. . . .

Q. And when you reviewed this particular case, did you see the result of this [second] test?

A. I did.

Q. And what was the result of that test?

A. It turned blue.

Q. And based on your training and experience, what does that mean?

A. It means that those specific chemical groups are present.

Q. What was the next test that was performed?

A. The next test was a crystal test.

. . . .

Q. And based on your review of the lab report, were you able to determine what the result was of this particular test?

A. Yes, crosses were obtained. Those specific crosses were obtained.

Q. And what does that result mean to you as a chemical analyst?

A. It indicates that cocaine is present.

. . . .

Q. Now have you reviewed the testing procedures that you’ve described and the results of the examinations of the test yourself?

A. I have.

Q. And have you also reviewed Agent Gregory’s conclusion?

A. I have.

Q. Have you formed an opinion as to the item . . . ?

A. I have.

Q. And what is your opinion based on?

A. Based upon all the data that she [Agent Gregory] obtained from the analysis of that particular item, State’s Exhibit 1B, I would have come to the same conclusion that she did.

Q. And what is your opinion as to the identity of the substance that was submitted as State’s Exhibit 1B?

. . .

A. State’s Exhibit 1B is the Schedule II controlled substance cocaine base. It had a weight of 0.1 gram.

(Slip op. at 4-5).

The Brewington court interpreted Melendez-Diaz and the N.C. Supreme Court’s decision in State v. Locklear (discussed here), as establishing that when an expert uses data collected by another to form an independent opinion, no confrontation clause violation occurs. But when the expert merely reiterates another’s findings and conclusions, a violation occurs. (Slip op. at 13). The court explained: “[T]he purpose of requiring the analysts themselves testify is so that their honesty, competence, and the care with which they conducted the tests in question could be exposed to testing in the crucible of cross-examination.” (Slip op. at 14 (quotation omitted)). On the issue before it of whether Schell offered an independent expert opinion or merely summarized the Gregory’s findings, the court concluded:

It is clear . . . that [Schell] had no part in conducting any testing of the substance, nor did she conduct any independent analysis of the substance. She merely reviewed the reported findings of Agent Gregory, and testified that if Agent Gregory followed procedures, and if Agent Gregory did not make any mistakes, and if Agent Gregory did not deliberately falsify or alter the findings, then Special Agent Schell “would have come to the same conclusion that she did.” . . . [I]t is precisely these “ifs” that need to be explored upon cross-examination . . . . Schell could not have answered these questions because she conducted no independent analysis. She testified exclusively as to the tests that Agent Gregory claimed to have performed, and used [inadmissible] testimonial documents . . . . Her conclusion that she agreed with Agent Gregory’s analysis assumes that Agent Gregory conducted the tests in the same manner that Special Agent Schell would have; however, the record shows that Special Agent Schell had no such actual knowledge of Agent Gregory’s actions during the testing process.

(Slip op. at 17-18 (citation omitted)). The court continued, distinguishing its prior Mobley decision, which had allowed the use of a substitute DNA analyst’s testimony:

As Mobley explains in detail, a forensic DNA analyst must perform an independent analysis of raw data to form their expert opinion. In this process, the underlying DNA data collectors do not reach their own conclusions that are then merely reviewed by the forensic expert based solely on a cold record. This contrasts starkly with the process utilized in this case. As . . . Schell testified, her expert opinion could go no further than the determination that she “would have come to the same conclusion” as the testing analyst. This . . . is not an independent expert opinion arising from the observation and analysis of raw data. Unlike an analysis of DNA data, there is no opportunity for a meaningful cross-examination of testimony concerning the results of a drug test, and a defendant presented with such damning evidence can only hope to attack pure assumptions on whether procedures were properly followed during the forensic testing process. . . . [I]t is this sort of accountability, placed directly on the testing analyst, that the Sixth Amendment requires.  

So where are we with regard to the confrontation clause and the use of analysts in drug cases?

• Brewington doesn’t affect the viability of using the G.S. 90-95(g) notice and demand statute to obtain a waiver of confrontation rights with respect to the analyst’s report. (For a discussion of that procedure, see this paper at pp. 21-25).
• If the defendant declines to waive his or her rights, the State can satisfy the confrontation clause by tendering the analyst who did the original testing.
• If the original analyst is not available and there has been no prior opportunity to cross-examine, the State can satisfy the confrontation clause by offering a new analyst who has re-tested the substance and formed an opinion based on that work. See Brewinton Slip op. at 17 (substitute analyst’s testimony was objectionable because “she had no part in conducting any testing of the substance, nor did she conduct any independent analysis of the substance”).
• If the testing analyst is not available and there has been no prior opportunity to cross-examine and re-resting is not possible (where for example the substance was consumed in the original testing or has been degraded so that re-testing can’t be done), the State can try to offer the analyst who did peer review on the original testing. Such a procedure finds support in State v. Hough, __ N.C. App. __, 690 S.E.2d 285 (2010) (no error when reports by non-testifying analyst on composition and weight of controlled substances were admitted as the basis of a testifying expert’s opinion where testifying expert peer reviewed the reports). However, even that case noted that not “every ‘peer review’ will suffice to establish that the testifying expert is testifying to his or her own expert opinion.” Brewington emphasized that point. Brewington Slip op. at 18. It also went a step further, holding that admission of testimony of a substitute analyst, who was functionally equivalent to a peer reviewer, violated the confrontation clause. Thus, notwithstanding Hough, use of a peer reviewer in a drug case is risky for the State.
• At the same time, Brewington virtually closes the door on using an analyst who had no part at all in the original testing. After all, these were the facts of Brewington. While the use of such experts still may satisfy the confrontation clause with regard to DNA analysis, see State v. Mobley, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 3, 2009) (approving use of a substitute DNA analyst), it doesn’t appear to be an option any more in drug cases.

Finally, after Brewington, there may be renewed interest in exploring the possibility of remote testimony by the testing analyst. If that happens, we’ll explore the relevant constitutional issues in future posts.