Previously, Jeff and I posted about the post-Melendez-Diaz decisions by the N.C. Court of Appeals in the Brennan and Brewington substitute analyst cases (those posts are available here, here, and here). In Brennan, the court concluded that testimony of a substitute analyst identifying a substance as cocaine base violated the defendant’s confrontation clause rights. Similarly, in Brewington, it held that the trial court committed reversible error by allowing a substitute analyst to testify to an opinion that a substance was cocaine. However, in other substitute analyst cases the court had found no confrontation clause violation. Here’s a quick snapshot of the relevant N.C. substitute analyst cases:
| DATE | CASE | HOLDING | EVIDENCE |
| 8/28/09 | Locklear (N.C.) | Crawford violation | Reports of non-testifying experts re: cause of death & victim’s identity |
| 10/28/09 | Galindo (N.C. App.) | Crawford violation | Opinion re: weight of cocaine based “solely” on another’s lab report |
| 11/3/09 | Mobley (N.C. App.) | No violation | Substitute analyst opinion re: DNA tests |
| 3/2/10 | Hough (N.C. App.) | No violation | Substitute analyst’s opinion re: composition & weight of controlled substance |
| 5/4/10 | Brennan (N.C. App.) | Crawford violation | Substitute analyst’s testimony (cocaine) reporting another’s results |
| 5/18/10 | Brewington (N.C. App.) | Crawford violation | Substitute analyst’s opinion that substance was cocaine |
The State sought review in Brennan and Brewington and the N.C. Supreme Court recently issued temporary stays in both cases. Some hope that a decision by the high court will bring greater clarity to this area. Of course, we will keep you updated on whether the court ultimately agrees to review the cases and if so, how it comes out.