State v. Brennan: Substitute Analysts, Again

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The court of appeals released a new batch of opinions today. I may post on others eventually, but the one that jumped out at me immediately is State v. Brennan.

Brennan is a Confrontation Clause case. Most readers of this blog know that Crawford v. Washington, 541 U.S. 36 (2004), breathed new life into the Clause, and that Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009), held that a laboratory analyst’s report is “testimonial” within the meaning of Crawford. Such a report, therefore, generally can’t be admitted without the analyst’s testimony, unless the defendant waives his right to confront the analyst.

Sometimes, when an analyst is unavailable, the state will attempt to use a substitute analyst to admit the report, or at least, the conclusion reached by the original analyst. The use of a substitute analyst was approved in State v. Mobley, which my colleague Jessie Smith unpacked here. The substitute analyst in Mobley testified about DNA evidence that linked the defendant to a rape. Her opinion was based in part on, and it appears that she testified about, the original analyst’s work, but the court of appeals found that her testimony did not violate the Confrontation Clause. It observed that she had conducted a “technical review” of the original analyst’s work that the court seemed to think was fairly detailed, including an examination of the original data. Thus, the court held, the original analyst’s conclusions were just a part of the basis for the substitute analyst’s opinion. It was the substitute analyst’s opinion that was the real evidence against the defendant, and she, of course, was subject to cross-examination. Jessie concluded her post about Mobley by stating: “How much raw data must be available and what level of independent review must be done in other sorts of substitute analyst cases is an issue will be decided by later cases.”

Brennan is one of those later cases — in fact, the only one, so far. The defendant in Brennan consented to a search of his car. The police found and seized a pipe that they believed contained residue of a controlled substance. They charged the defendant with possession of a controlled substance, and sent the pipe to an SBI laboratory for analysis. The analysis confirmed that the residue was from a controlled substance. When the case came on for trial, the original analyst was sick, so the state called a substitute analyst. She testified that she had “reviewed the results of the tests performed” by the original analyst. She described the process as follows: “Reviewing a case is to take [the original analyst’s] data, their notes and to look at it and say yes I agree with their conclusion.” She admitted that she did not generate the data in question, and that she had not seen the drug residue at issue before she arrived in court to testify.

The court of appeals found it “obvious” that the testifying analyst was “merely reporting the results of other experts,” noting that she conducted no “independent research” on the matter. In effect, it held that she was nothing but a conduit for the original analyst’s opinion, and had not formed an independent opinion of her own. Because the original analyst was not subject to confrontation and cross-examination, the court of appeals held that it was plain error to admit the substitute analyst’s testimony, and it reversed the defendant’s conviction.

This is really Jessie’s area of expertise, and perhaps she’ll have something to say about this case. But I know she’s swamped with other matters right now, so I’ll take a stab at comparing Mobley and Brennan. The substitute analysts in both cases did “reviews” that involved looking at original “data.” Although the Brennan court highlighted the fact that the substitute analyst in that case didn’t conduct “original research” and hadn’t seen the material at issue before she came to court, as far as I can tell, both of those things were true in Mobley as well. So are these cases at odds? Perhaps they are, to some extent. But here’s another way to think about it: whether a substitute analyst’s review is sufficiently searching and detailed to allow the substitute analyst to form an independent opinion — and not just parrot the conclusions of the original analyst — is inherently a fact-bound and subjective question about which hard-and-fast rules are difficult to establish. And it appears that in Mobley, the state may have done a bit more to describe the review conducted by the substitute analyst, to lay out the procedure, and to make it appear exhaustive. A cynic might say that the review was “dressed up” a bit more in Mobley, but I tend to think that this is simply an area in which there will be many close cases, in which the quality of the lawyering and the ability of the witnesses to describe the review process may make a crucial difference.

3 comments on “State v. Brennan: Substitute Analysts, Again

  1. Any thoughts on how this case is distinguishable from State v. Hough, 690 S.E.2d 285; 2010 N.C. App. LEXIS 373 (2010)?

    • Hough is not distinguishable, and it is not mentioned in the Brennan decision.

  2. […] 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 […]

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