In previous posts [editor’s note: her prior posts are here and here] I have written about the developing North Carolina law on the use of substitute analysts after Melendez-Diaz. In writing about State v. Locklear and State v. Galindo, both of which rejected substitute analyst testimony, I noted a common feature of those cases that might limit their holdings: in both cases, the experts appeared to merely be repeating opinions formed by non-testifying analysts. In light of this, I suggested that the door may still be 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. In State v. Mobley, decided November 3, 2009, the North Carolina Court of Appeals held that otherwise testimonial reports are admissible as the basis of a testifying expert’s opinion. Mobley thus allows the use of substitute analysts, in certain circumstances.
In Mobley, the defendant was convicted of rape and other charges. While the victim was being treated at the hospital, medical personnel collected a sexual assault kit, which was turned over to the police. Subsequent testing of the evidence matched the DNA profile of the perpetrator to the defendant’s DNA profile. The State also presented DNA evidence regarding another rape committed by the defendant, under Rule 404(b). On appeal, the defendant argued that his Confrontation Clause rights were violated when the trial court admitted testimony of a police crime laboratory analyst regarding DNA tests performed by other analysts.
The court of appeals began by noting that in Locklear, the testifying expert “was merely reporting the results of other experts. He did not testify to his own expert opinion based upon the tests performed by other experts, nor did he testify to any review of the conclusions of the underlying reports or of any independent comparison performed.” Slip Op. at p. 6. The court then distinguished the case before it, stating that the expert, Aby Moeykens, testified “not just to the results of other experts’ tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts’ tests, and her own expert opinion based on a comparison of the original data.” Slip Op. at pp. 6-7. It continued:
Well-settled . . . law allows an expert to testify to his or her own conclusions based on the testing of others in the field. This Court has held that evidence offered as the basis of an expert’s opinion is not being offered for the truth of the matter asserted. [Crawford] . . . noted that evidence offered for purposes other than proof of the matter asserted did not violate the Confrontation Clause. In Melendez-Diaz, the certificates at issue were being introduced not as the basis for any expert’s opinion but as prima facie evidence that the substance was cocaine. Thus, such evidence would implicate the Confrontation Clause. By contrast, in this case, the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under North Carolina case law.
Slip Op. at p.8 (citations omitted). Therefore, the court held, Ms. Moeykens’s testimony did not violate the Confrontation Clause. Slip Op. at. pp. 8-9.
It is worth noting that in Mobley, the defendant did not challenge the propriety of the methods used by the crime laboratory. Thus, the court concluded, Ms. Moeykens was “justified in relying on those procedures in her analysis.” Slip Op. at p. 7. This may suggest that in some circumstances such reliance would not be justified.
Additionally, the level of Ms. Moeykens independent review of the evidence clearly was significant to the court’s decision. Specifically, the court noted that she reviewed the original data and controls of the underlying reports from the buccal and vaginal swabs. Upon coming to the conclusion that each profile was generated properly, she undertook a technical review of the original analysts’ work, and based on that review and her comparison of numerical values at certain gene locations, formed an opinion as to the profile match. She undertook a similar level of review regarding the DNA reports relevant to the 404(b) evidence. Thus, it appears that there was substantial “raw data” upon which Ms. Moeykens formed her independent opinion. 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.