In at least five prior posts on this blog (here, here, here, here, and here) I have written about the use of substitute analysts after Crawford and Melendez-Diaz. The basic issue is whether the confrontation clause is violated when an expert testifies to an opinion based on tests or analysis done by a non-testifying analyst. The issue can arise in any case involving crime laboratory reports and related evidence (such as autopsy reports), but it arises most frequently in drug and impaired driving cases. News reports about problems in state crimes laboratories have brought the issue to a crescendo, with the defense pointing to those reports as an exclamation point on the need for face-to-face confrontation of forensic analysts. The United States Supreme Court’s recent grant of certiorari in Bullcoming v. New Mexico, __ S. Ct. __ (No. 09-10876) (Sept. 28, 2010), suggests that the Court is poised to resolve the issue, at least in part.
Bullcoming is a New Mexico case in which the defendant, who was involved in a vehicle accident, showed signs of intoxication and failed field sobriety tests. When the defendant refused to take a breath test after his arrest, the arresting officer obtained a search warrant to perform a blood test. That test revealed that the defendant had a blood alcohol content of .21 gms/100ml, well over the legal limit. At the defendant’s trial on felony impaired driving charges, the State presented the blood test report through Gerasimos Razatos, an analyst for the state Department of Health, Scientific Laboratory Division, Toxicology Division, who helps in overseeing state breath and blood alcohol programs. Razatos had no involvement in the preparation of the report and the analyst who prepared it did not testify, having recently been put on unpaid leave. The trial judge admitted the report as a business record and over the defendant’s confrontation clause objection. After he was convicted, the defendant appealed asserting, among other things, that admission of the blood test report without the testimony of the preparer violated his confrontation clause rights. In a decision issued before Melendez-Diaz was decided, the intermediate appellate court held that because the report was non-testimonial, it did not implicate the confrontation clause. The New Mexico Supreme Court granted certiorari and affirmed. It held that although the unsworn report was testimonial, no confrontation clause violation occurred. It reasoned:
[T]he Confrontation Clause permits the admission of testimonial statements “so long as the declarant is present at trial to defend or explain it.” Although the analyst who prepared [the report] was not present at trial, the evidence revealed that he simply transcribed the results generated by the gas chromatograph machine. He was not required to interpret the results, exercise independent judgment, or employ any particular methodology in transcribing the results from the gas chromatograph machine to the laboratory report. Thus, the analyst who prepared [the report] was a mere scrivener, and Defendant’s true “accuser” was the gas chromatograph machine which detected the presence of alcohol in Defendant’s blood, assessed Defendant’s BAC, and generated a computer print-out listing its results.
In this case, Razatos . . . was qualified as an expert witness with respect to the gas chromatograph machine and . . . laboratory procedures. Razatos provided live, in-court testimony and, thus, was available for cross-examination regarding the operation of the gas chromatograph machine, the results of Defendant’s BAC test, and the [division’s] established laboratory procedures. Additionally, Razatos could be questioned about whether the operation of the gas chromatograph machine required specialized skill that the operator did not possess, involved risks of operation that might influence the test results, and required the exercise of judgment or discretion, either in the performance of the test or the interpretation of the results. Because Razatos was a competent witness who provided live, in-court testimony, . . . the admission of [the report] did not violate the Confrontation Clause.
State v. Bullcoming, 226 P.3d 1, 8-9 (2010) (citations omitted). The court went on to reiterate that the report’s admissibility was dependent on Razatos’ live, in-court testimony. “Clearly,” the court concluded, “had Razatos not been present to testify, [the report] would not have been admissible because Defendant would not have had the opportunity to meaningfully cross-examine a qualified witness regarding the substance of the exhibit. A defendant cannot cross-examine an exhibit. However, because Razatos did testify, Defendant’s right of confrontation was preserved.” Id. at 10.
On September 28, 2010, the United States Supreme Court granted the defendant’s petition for writ of certiorari to consider the question “[w]hether the [c]onfrontation [c]lause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
Substitute analyst cases in North Carolina and elsewhere have presented a variety of fact patterns, including, among others:
- when the substitute analyst performed peer review of the non-testifying analyst’s report at the time it was created;
- when a substitute analyst, who was not involved with preparation of the report, reads the report into evidence;
- when a substitute analyst, who was not involved with preparation of the report, testifies to an expert opinion based on data in the report;
- when the underlying document reports results read from a machine without analysis; and
- when the underlying report involves a conclusion based on an analysis of data
It is not clear whether the Court will use the Bullcoming case to address how the Crawford rule applies to the many different scenarios in which the substitute analyst issue arises. However, given the confusion in this area, any guidance that the Court provides is likely to be helpful.