blank

State v. Mobley: Green Light to the Use of Substitute Analysts

linkedin
Share on Google+
Share on Reddit
Share on Tumblr
Download PDF

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.

3 comments on “State v. Mobley: Green Light to the Use of Substitute Analysts

  1. Note to SBI lab: thoroughly document every single shred of raw data, and consider doing two separate technical reviews.

  2. Mobley is premised on faulty, and goal driven, logic. The sole purpose for expert testimony regarding DNA, drug identification, etc, is to tell the jury the results of a test, not the validity of the testing process. By saying the results of a test are not offered for the truth of the matter asserted, but as a basis for a second expert opinion, the COA is falsely pretending the jury is going to make that distinction.

    This decision will wind up being unworkable. Defense lawyers should come to court prepared to attack the idea that experts commonly form expert opinions by reading someone else’s work and parroting the result. Outside the SBI, this is called lazy and unreliable science. Do you want your medical doctor to give a second opinion by reading the first doctor’s report and saying that it looks fine?

    Defense lawyers should also request jury instructions from the Court telling the jury that they cannot consider the results of the original test as proof that the the substance was cocaine, there was a DNA match, etc. This a valid jury instruction request under the Mobley logic. After such an instruction, the lawyer should in closing arguments make the medical doctor 2nd opinion analogy.

    After prosecutors lose enough cases because of the confusion and reasonable doubt created when their reliance on Mobley is vigorously challenged, they will think twice about the merits of using substitute experts and begin following the the spirit of Crawford rather than seeking intellectually suspect ways to circumvent the Constitution.

    The bottom line here is that the COA should be promoting good faith adherence to Crawford by prosecutors, not creating bogus exceptions. It will ultimately be easier to just get the right expert into court rather than defending the validity of the highly suspect expert witness vouching process the COA has created.

    • Your post, it seems to me, completely misses the idea behind what happened. The idea is that someone who did a technical review in the SBI lab means that another person who is just as qualified as the first person, looked at all of the raw data in the case, and arrived at a separate, yet consistent opinion. An example would be in a cocaine case where the sample was tested using a Gas Chromatograph / Mass Spectrometer. The test produces gobs of raw data that the expert knows means that the substance is cocaine. The Technical Review is when someone else looks at the exact same raw data, and reaches the same conclusion independent of the first expert. The second opinion is based on the same raw data as the first one. To follow the logic of your thinking means that any subsequent re-testing would be just as inadmissible.

      Also to say that experts do not look at other expert’s data to form an opinion is completely asinine. If that were the case, then there would be nothing a defense expert could testify about if the did not do any independent testing of their own.

      As far as your insinuation that prosecutors do not act in good faith because we have to call a substitute lab agent, that is completely off-base. I will always call the original lab agent whenever possible. Why would I risk mucking up any issue in the case if I can avoid it. Also, I can go on and on for hours about bad-faith on the part of the defense bar. Here is a start: requiring the lab agent to show up and testify, then not asking a single substantive question on cross about the analysis itself. Nice waste of the taxpayers’ resources there, huh?

Leave a Reply

This site uses Akismet to reduce spam. Learn how your comment data is processed.