The NC Supreme Court’s Recent Substitute Analyst Cases

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The NC Supreme Court’s Recent Substitute Analyst Cases

Posted on July 10, 2013 by Jessica Smith

If you’re on my listserv, you know that the NC Supreme Court recently issued several confrontation clause decisions, all dealing with substitute analysts (if you’re not on my listserv, you can sign up here for my case summaries). I’ve previously written (here) about Williams v. Illinois, the US Supreme Court’s most recent confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale garnered five votes, it left judges and litigants largely in the dark about the constitutionality of substitute analyst testimony. And this is a big deal. In a state as geographically large as NC and in tough budget times, getting the testing analyst to court is no easy matter, and in some cases impossible. In its most recent decisions the NC Supreme Court weighed in, with prosecution-pleasing results. Below I summarize my main take-away points from these cases. But here’s a cautionary note: While these cases are the law in NC, the final word from the US Supreme Court is still to come. Smart defenders will make objections at trial, thus preserving the issue.

1. Substitute analyst testimony is OK if the expert testifies to an independent opinion based on information reasonably relied upon by experts in the field. This was the holding of State v. Ortiz-Zape, __ N.C. __ (June 27, 2013), a cocaine drug case. Over the defendant’s objection, the trial court allowed the State’s expert witness, Tracey Ray of the CMPD crime lab to testify about the lab’s practices and procedures, her review of the testing in the case, and her opinion that the substance at issue was cocaine. Ray was not involved in the actual testing of the substance at issue; her opinion was based on tests done by a non-testifying analyst. The trial court excluded the non-testifying analyst’s report under Rule 403. The defendant was convicted and appealed. The NC Supreme Court upheld the conviction, finding that no confrontation clause violation occurred. It explained:

[W]hen an expert gives an opinion, [i]t is the expert opinion itself, not its underlying factual basis, that constitutes substantive evidence. Therefore, when an expert gives an opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible. Accordingly, admission of an expert’s independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert.

Ortiz-Zape, slip op. at 12-13 (quotations and citations omitted). State v. Brewington, __ N.C. __ (June 27, 2013), another cocaine case, followed Ortiz-Zape and found no error where the testifying expert gave an independent opinion. A third decision, State v. Hurt, __ N.C. __ (June 27, 2013), applied Ortiz-Zape to a case involving substitute analysts in serology and DNA.

2. The State must lay a proper foundation for substitute analyst testimony. The Ortiz-Zape court found that the prosecutor had laid a proper foundation for Ray’s testimony. Specifically, that the information she relied upon—the tests done by the non-testifying analyst—was reasonably relied upon by experts in the field and that Ray was asserting her own independent opinion. Ortiz-Zape, slip op. at 18. In a footnote it elaborated on the foundational requirements: “[W]e suggest that prosecutors err on the side of laying a foundation that establishes compliance with Rule of Evidence 703, as well as the lab’s standard procedures, whether the testifying analyst observed or participated in the initial laboratory testing, what independent analysis the testifying analyst conducted to reach her opinion, and any assumptions upon which the testifying analyst’s testimony relies.” Ortiz-Zape, slip op. at 19 n.3.

3. “Surrogate” testimony isn’t OK. This was the holding of State v. Craven, __ N.C. __ (June 27, 2013), another cocaine drug prosecution. In that case, the testifying expert was asked whether she agreed with non-testifying analysts’ conclusions in two lab reports. When she replied in the affirmative, she was asked what the non-testifying analysts’ conclusions were and the underlying reports were introduced into evidence. In Craven the court concluded that the substitute analyst did not offer an independent opinion regarding the identity of the substance but rather was merely a surrogate who “parroted” the conclusions of the non-testifying analysts. Craven, slip op. at 8. This, the court held, is impermissible. See also Ortiz-Zape, slip op. at 13 (expert must present an independent opinion and “not merely ‘surrogate testimony’ parroting otherwise inadmissible statements”); Brewington, slip op. at 5 (expert gave an independent opinion, not “mere surrogate testimony”).

4. A defendant’s admission that the substance is a controlled substance may be sufficient evidence for conviction. This conclusion is suggested by two of the cases. First, in State v. Williams, __ N.C. __ (June 27, 2013), a cocaine drug case, the court held that even if a confrontation clause error occurred with regard to the substitute analyst’s testimony, it was harmless beyond a reasonable doubt because the defendant testified that the substance at issue was cocaine. Slip op. at 8. In Ortiz-Zape, the court found that any possible confrontation error was harmless, noting in part that the defendant told the arresting officer that the substance was cocaine. Ortiz-Zape, slip op. at 21. In retrospect, the court’s decision in State v. Nabors (discussed here) may have hinted at this result.

5. “Machine-generated” raw data likely will be non-testimonial. The Ortiz-Zape court stated in dicta that “machine-generated raw data,” such as a printout from a gas chromatograph, is non-testimonial. Ortiz-Zape, slip op. at 14. As a result, the court suggested, if such data is reasonably relied upon by experts in the field, this information may be disclosed at trial. Id. at 15. Note however that a non-testifying analyst’s opinion based on machine-generated data is testimonial. Craven, slip op. at 8. Thus while the raw data may be admissible, the non-testifying analyst’s conclusion based on that data is not. Id.

Those are my main take away points. If you have others, please weigh in.

Category: Evidence, Procedure, Uncategorized | Tags: confrontation clause, crawford, Evidence, substitute analysts, supreme court

Beyond Legislative Solutions to Melendez-Diaz

Posted on June 10, 2013 by Jessica Smith

My recent paper (here) on the use of remote testimony in criminal cases involving forensic analysts was written in part because of the flood of interest in legislative solutions to Melendez-Diaz. That case held that forensic reports are testimonial and subject to the new Crawford confrontation clause analysis. One slam dunk solution to the Melendez-Diaz issue is for the State to bring all of the analysts to court. But that’s expensive so folks have been looking for other solutions. Many of the solutions that I’ve heard focus on legislative changes. Although there are some legislative solutions, in the end there is only so much legislating that can be done regarding a constitutional issue. So that got me wondering: What practical solutions are out there? Here are a few ideas. Please weigh in on whether these are viable and share any additional thoughts that you have. If you prefer to contact me directly, here’s my email: smithj@sog.unc.edu

1. Encourage Officers to Become Certified Chemical Analysts. Many officers already are certified to perform a chemical analysis in DWI cases. When that’s the case, there is no Melendez-Diaz issue in the garden variety case. Because the officer has to testify as the primary fact witness for the State, the officer already is in court.

2. Use Blood Tests Sparingly in DWI Cases. Although it strengthens the prosecution’s case to have a blood test, they aren’t needed in every situation. Suppose for example the officer can testify: “I saw the defendant driving at 2 am in an area filled with drinking establishments. Defendant was weaving out of the lane of traffic, drove through a stop sign, and was driving 15 miles below the posted speed limit. When I stopped his car his eyes were glassy, he reeked of alcohol and he was unsteady on his feet. Empty beer bottles littered the passenger seat. He failed field sobriety tests.” A blood test would amplify the case but on these facts it’s not needed. One way to ration limited resources to use them only when they are required. That means save blood tests for cases where guilt can’t be established without them or where the charge is very serious (e.g., second-degree murder).

3. Pair Blood Analysts With Officers & Improve Case Scheduling. All officers have pre-scheduled court dates. If a blood analyst is paired with a particular officer, the two would share the same court dates. So for example, every blood test submitted by Officer X gets handled by Analyst Y. If Officer X’s blood test DWI cases are scheduled on the same day, Analyst Y only has to come to court on that one day to testify in Officer X’s cases.

4. Regional Labs. They cost money, but they’d create efficiencies in terms of analyst travel time.

5. Change Lab Procedures for Using Analysts. By their nature, some cases require a variety of different types of analysts. But some cases only require one type of analyst. When that’s the case, make it the same person, thereby reducing the number of potential people who have to testify in court.

6. Change Procedures for Chain of Custody. Chain of custody information is testimonial. If seven people sign the custody log as evidence custodians, this creates the possibility of having to bring a handful of people to court just to authenticate the evidence. If procedures are changed so that no more than two people do this job for every case, it reduces the number of people required to prove chain of custody.

7. Videotape Testing. This idea steps half-way into the legal area but here goes. If a forensic analysis is videotaped so that a testifying analyst can see each and every step of the process, including calibrating equipment, etc., it’s arguably as if the testifying analyst is standing by the testing analyst’s side. Although Williams cast a great veil of uncertainty over the use of substitute analysts, this is more than the testifying analyst had in that case, which of course was affirmed by the high court.

Category: Evidence, Motor Vehicles, Procedure, Uncategorized | Tags: blood tests, confrontation clause, crawford, DWI, impaired driving, melendez-diaz, substitute analysts

California Tackles Substitute Analysts Post-Williams

Posted on December 3, 2012 by Jessica Smith

In a paper here I analyze Williams v. Illinois, the U.S. Supreme Court’s latest confrontation decision on substitute analyst testimony. Because Williams was a fractured opinion in which no rationale garnered five votes, it didn’t answer a lot of questions. Three companion cases recently decided by the California Supreme Court show how one court is dealing with the issue post-Williams.

In the first case, People v. Lopez, 286 P.3d 469 (Cal. 2012), the defendant was charged with vehicular manslaughter while intoxicated. To establish the defendant’s intoxication, the prosecution introduced into evidence—over objection—a laboratory report done by Jorge Peña of the Crime Laboratory indicating the percentage of alcohol in the defendant’s blood sample. Peña did not testify at trial. Instead, the prosecution offered Peña’s colleague, John Willey, who had reviewed the report. Willey had worked at the lab for many years, knew its procedures, and had trained Peña. Willey testified—again, over objection—that Pena used a gas chromatograph to analyze the sample and that the report stated that it contained an alcohol concentration of 0.09 percent. Willey added that based on his own “separate abilities as a criminal analyst,” he agreed that the sample’s blood-alcohol concentration was 0.09 percent. The defendant was convicted and appealed, asserting a confrontation clause violation. The California Supreme Court upheld the conviction.

The Lopez court determined that under U.S. Supreme Court law, a statement is testimonial when it is made with some degree of formality or solemnity and its primary purpose pertains to a criminal prosecution. Id. at 477. The court noted disagreement among the high Court’s members regarding what it means “to pertain to a criminal prosecution,” but found it unnecessary to resolve that issue in this case.

The Lopez court noted that Peña’s report included six pages. Page one was a chain of custody log. Page two was a printout of the gas chromatography machine’s calibrations on the testing day. Pages three and six were quality control runs before and after the samples. Pages four and five showed two computer-generated results of the analyses of the defendant’s sample. The court described pages two through six as “consist[ing] entirely of data generated by a gas chromatography machine.” Id. at 478. Although Peña signed page two and the initials “JRP” appear on the other pages, “no statement by Peña, express or implied, appears on any of those pages.” Id. As to pages two through six, the court concluded:

Not yet considered by the United States Supreme Court is whether the prosecution’s use at trial of a machine printout violates a defendant’s right to confront and cross-examine the machine’s operator when, as here, the printout contains no statement from the operator attesting to the validity of the data shown. We agree with those federal appellate courts that have upheld the use of such printouts. . . . Because, unlike a person, a machine cannot be cross-examined, here the prosecution’s introduction into evidence of the machine-generated printouts . . . did not [violate the confrontation clause].

Id. at 478 (citations omitted).

Turning to page one, the court noted that lab assistant Brian Constantino completed the chain of custody chart, logging the defendant’s name, the sample’s lab number, and when it was collected and received. It was undisputed that Constantino’s notation linking the defendant’s name to the tested sample was admitted for its truth. Thus, the critical question was whether that notation was testimonial. The court concluded that it was not. It noted that while Peña and Constantino initialed the chart, “neither . . . signed, certified, or swore to the truth of the contents,” and thus the notation “is nothing more than an informal record of data for internal purposes” that was “not prepared with the formality required . . . for testimonial statements.” Id. at 479. The court went on to distinguish Melendez-Diaz on grounds that it involved certificates sworn to before a notary and Bullcoming on grounds that it dealt with lab results formalized in a signed document expressly referencing court admissibility rules.

In the second case, People v. Dungo, 286 P.3d 442 (Cal. 2012), the defendant was convicted of murder. Dr. George Bolduc performed an autopsy on the victim’s body and prepared an autopsy report, indicating that the victim died of strangulation. Bolduc, who had been fired as a county coroner, perhaps because of incompetency, did not testify at trial. Instead, the prosecution offered forensic pathologist Robert Lawrence. Lawrence relied on Bolduc’s autopsy report and accompanying photographs to describe the victim’s body. Lawrence then opined that the victim died of strangulation. Neither the autopsy report nor the photographs were admitted into evidence. Turning to the confrontation issue, the court noted that unlike in Lopez, here the underlying report was not introduced into evidence. Additionally, Lawrence never described Bolduc’s conclusions regarding cause of death. He did however describe the condition of the victim’s body (hemorrhages in eyes, purple face color, etc). Thus, the central issue was whether Lawrence’s testimony “about these objective facts” reported by Bolduc violated the confrontation clause. Id. at 535. The court concluded that no confrontation violation occurred because Bolduc’s statements describing anatomical and physiological observations of the body were non-testimonial. The court rejected the defendant’s argument that the statements in Bolduc’s report were sufficiently formal. The defendant noted that a detective attended the autopsy, the autopsy was statutorily mandated, Bolduc was statutorily required to report his findings and notify law enforcement if the death was a homicide, and a detective told Bolduc that the defendant had confessed. The court found these circumstances irrelevant to formality or solemnity. Turning to the issue of primary purpose, the court concluded that criminal investigation was not the primary purpose for the autopsy report’s description of the victim’s body, but rather was one of several purposes, including providing information for use in a wrongful death action and for insurance purposes.

The third case, People v. Rutterschmidt, 286 P.3d 435 (Cal. 2012), is interesting mainly because it involved two elderly women who took out life insurance policies on men and then killed them for the insurance money. Although a substitute analyst issue was raised, the court didn’t reach it, concluding any error was harmless beyond a reasonable doubt.

The North Carolina appellate courts have yet to tackle head on substitute analyst testimony post-Williams. When they do, I’ll be sure to write about it.

Category: Evidence, Uncategorized | Tags: confrontation clause, crawford, melendez-diaz, substitute analysts, supreme court

United States Supreme Court Grants Cert. in Substitute Analyst Case

Posted on November 8, 2010 by Jessica Smith

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.

Category: Evidence, Procedure, Uncategorized | Tags: bullcoming, confrontation clause, substitute analysts, supreme court

New Trial Ordered in Unpublished Melendez-Diaz Autopsy Case

Posted on August 16, 2010 by Jessica Smith

Along with the published cases released by the N.C. Court of Appeals on August 3, 2010, was an unpublished case of note. In State v. Davis, __ N.C. App. __ (Aug. 3, 2010), the court ordered a new trial after finding that the trial judge erred by admitting into evidence an autopsy report prepared by a non-testifying pathologist.

In Davis, the defendant was charged with killing the victim by setting him on fire. An autopsy of the victim’s body was performed by Dr. Garner, of the Medical Examiner’s Office in Chapel Hill. Garner did not testify at trial. Instead, over the defendant’s objection, the State introduced the autopsy report through the testimony of Dr. Gulledge, an expert in forensic pathology with the Mecklenburg County Medical Examiner’s Office. On appeal, the defendant argued that his constitutional rights were violated when the trial court admitted into evidence Garner’s testimonial statements without the defendant having been afforded a prior opportunity to cross-examine Garner. Citing State v. Locklear, 363 N.C. 438 (2009), the court of appeals agreed. In Locklear, the North Carolina Supreme Court held that a Crawford violation occurred when the trial court admitted opinion testimony of non-testifying experts regarding a victim’s cause of death and identity. The testimony was admitted through the Chief Medical Examiner, who read the non-testifying experts’ reports into evidence, rather than testifying to an independent opinion. Since Locklear, the court of appeals has issued a number of related opinions, some of which created confusion about the viability of the Crawford exception that had been understood to apply when a forensic report is admitted as a basis of a testifying expert’s opinion (for a summary of those cases, see my post here).

The Davis court framed the issue as requiring a determination of whether Gulledge “was merely reporting the results of another expert or instead testifying as to his own expert conclusion reached after a technical review of the [report’s] underlying data.” It noted that Gulledge reviewed the investigation and autopsy reports “for clarity,” “for accuracy,” and “to determine whether the findings [made] sense in the light of the investigation.” The court noted that “[c]onspicuously absent” from the review was any “independent testing” to confirm Garner’s conclusions. Furthermore, most of Gulledge’s testimony involved reading Garner’s report and translating it into layman’s terms. For example, Gulledge identified the medical procedures mentioned in the report as having been done on the victim and read portions of the report, including its Pathological Diagnosis. Gulledge testified that the report concluded that cause of death was “Complications of burns” and that the report did not provide a lot of detail about how that conclusion was reached other than the presence of bronchial pneumonia and diffuse alveolar damage, and the fact that the spleen and the kidney were infarcted. After explaining that infarction “happens in burn patients,” Gulledge testified that it was a “fair statement” that “but for the burn injuries . . . [the victim] would not have died.” When the defense asked Gulledge whether it was possible to determine if the death was accidental or a homicide, he responded: “The only way that I would have to determine what [Garner’s] opinion of the manner of death was is that on the report . . . she has checked the box marked homicide[.]” Gulledge further stated, “I don’t know where she received the information [relied on to reach this conclusion]. I don’t know why she formed that opinion.”

Based on the transcript, the court found itself “compelled to hold” that Gulledge did not offer an independent expert opinion based on a review of Garner’s report “but was instead, like the witness in Locklear, merely reporting the results of Dr. Garner’s analysis.” It concluded that because Gulledge’s review “involved no retesting and instead relied on the accuracy of [Garner’s] unconfirmed observations,” it was insufficient to establish that Gulledge was testifying to his own expert opinion. The court recognized, in a footnote, that certain types of forensic analysis, such as that done during an autopsy, “are inherently difficult to reproduce.” It concluded, however, that the “burden on the State of producing the actual analyst is preferable to the denial of Defendant’s constitutional rights, which would occur if our courts permitted an inference of the accuracy of the tests and observations performed during an autopsy.”

One reading of Davis is that it involved a simple application of Locklear: Because Gulledge did not testify to an independent opinion based information collected by Garner, the basis of the expert’s opinion exception did not apply. Such a reading preserves the basis of the expert’s opinion exception. However, the opinion can be read to mean that the relevant analysis—here an autopsy—must be reproduced and the testifying expert must do “retesting.” Under this view, the basis of the expert’s opinion exception is rejected; in order for forensic testing to be admissible, the testifying expert must reproduce the analysis and do testing. If this is so, some questions that come to mind include:

What does “retesting” mean in the context of an autopsy? Does it mean something different than reproducing the autopsy?
What if the victim’s body had been cremated or severely decomposed thus making it impossible—not merely “difficult”—to reproduce the autopsy?
What if it would have been impossible to reproduce the autopsy and if Garner had died so that it would have been impossible to produce him at trial? Such a scenario is not inconceivable. In a homicide case, years can pass before the matter comes on for trial. If cause of death is essential to the State’s case and the exception does not apply even when it would be impossible to reproduce the autopsy or produce the original analyst, the crime could not be prosecuted.
What if it would have been impossible to reproduce the autopsy or produce Garner in court but that Garner had taken photographs, slides, video, etc. during the autopsy and Gulledge had based his opinion on those items? Would Garner’s observations have been sufficiently confirmed to serve as the basis of Gulledge’s opinion?

As I previously noted in a blog post here, the N.C. Supreme Court has issued temporary stays in two of the court of appeals’ substitute analyst cases. If the court grants review in those cases, some of these questions may be answered

Category: Evidence, Procedure, Uncategorized | Tags: autopsy, confrontation clause, crawford, davis, melendez-diaz, substitute analysts

North Carolina Supreme Court Enters Temporary Stays in Two Substitute Analyst Cases

Posted on July 15, 2010 by Jessica Smith

United States Supreme Court Denies Certiorari in Substitute Analyst Case

Posted on June 15, 2010 by Jessica Smith

Move to Strike My Last Post!

Posted on May 20, 2010 by Jessica Smith

In a recent post, I suggested that by establishing a good foundation, the State may be able to overcome a confrontation clause objection to its use a substitute analyst in a drug case. In its recent opinion in State v. Brewington, the N.C. Court of Appeals held that the trial court committed reversible error by allowing a substitute analyst to opine that a substance was cocaine. The decision might suggest that my teenagers are on to something when they repeatedly exclaim: “Mom, you don’t know anything!”

Brewington was a drug case. Testing was done at the SBI laboratory by Nancy Gregory and reviewed by the Drug Chemistry Section’s supervisor, Ann Hamlin. At trial, the State offered SBI Special Agent Schell, an expert in forensic chemistry, to testify to the nature of the substance at issue. The defense objected on confrontation clause grounds, arguing that Schell shouldn’t be allowed to testify because she didn’t do the underlying tests. The objection was overruled and Schell testified that the substance was cocaine base. After testifying about lab procedures, direct examination of Schell continued as follows:

Q. [W]ho . . . analyzed the sample . . . ?

A. Nancy Gregory.

. . . .

Q. And according to the lab notes . . . [w]hat types of tests were performed on this sample?

A. There were two preliminary color tests, a preliminary crystal test and a more specific instrumental analysis test that was conducted on this piece of evidence.

. . . .

Q. And from the notes . . . were you able to determine what the result was of this particular color test?

A. In this particular color test it did not turn any color.

Q. And based on your training and experience, what does that indicate?

A. That indicates that such drugs like heroin, which would turn purple for this test; or methamphetamine, which would turn orange, are not present. We’re looking for something that doesn’t turn this particular color test a color.

. . . .

Q. And when you reviewed this particular case, did you see the result of this [second] test?

A. I did.

Q. And what was the result of that test?

A. It turned blue.

Q. And based on your training and experience, what does that mean?

A. It means that those specific chemical groups are present.

Q. What was the next test that was performed?

A. The next test was a crystal test.

. . . .

Q. And based on your review of the lab report, were you able to determine what the result was of this particular test?

A. Yes, crosses were obtained. Those specific crosses were obtained.

Q. And what does that result mean to you as a chemical analyst?

A. It indicates that cocaine is present.

. . . .

Q. Now have you reviewed the testing procedures that you’ve described and the results of the examinations of the test yourself?

A. I have.

Q. And have you also reviewed Agent Gregory’s conclusion?

A. I have.

Q. Have you formed an opinion as to the item . . . ?

A. I have.

Q. And what is your opinion based on?

A. Based upon all the data that she [Agent Gregory] obtained from the analysis of that particular item, State’s Exhibit 1B, I would have come to the same conclusion that she did.

Q. And what is your opinion as to the identity of the substance that was submitted as State’s Exhibit 1B?

. . .

A. State’s Exhibit 1B is the Schedule II controlled substance cocaine base. It had a weight of 0.1 gram.

(Slip op. at 4-5).

The Brewington court interpreted Melendez-Diaz and the N.C. Supreme Court’s decision in State v. Locklear (discussed here), as establishing that when an expert uses data collected by another to form an independent opinion, no confrontation clause violation occurs. But when the expert merely reiterates another’s findings and conclusions, a violation occurs. (Slip op. at 13). The court explained: “[T]he purpose of requiring the analysts themselves testify is so that their honesty, competence, and the care with which they conducted the tests in question could be exposed to testing in the crucible of cross-examination.” (Slip op. at 14 (quotation omitted)). On the issue before it of whether Schell offered an independent expert opinion or merely summarized the Gregory’s findings, the court concluded:

It is clear . . . that [Schell] had no part in conducting any testing of the substance, nor did she conduct any independent analysis of the substance. She merely reviewed the reported findings of Agent Gregory, and testified that if Agent Gregory followed procedures, and if Agent Gregory did not make any mistakes, and if Agent Gregory did not deliberately falsify or alter the findings, then Special Agent Schell “would have come to the same conclusion that she did.” . . . [I]t is precisely these “ifs” that need to be explored upon cross-examination . . . . Schell could not have answered these questions because she conducted no independent analysis. She testified exclusively as to the tests that Agent Gregory claimed to have performed, and used [inadmissible] testimonial documents . . . . Her conclusion that she agreed with Agent Gregory’s analysis assumes that Agent Gregory conducted the tests in the same manner that Special Agent Schell would have; however, the record shows that Special Agent Schell had no such actual knowledge of Agent Gregory’s actions during the testing process.

(Slip op. at 17-18 (citation omitted)). The court continued, distinguishing its prior Mobley decision, which had allowed the use of a substitute DNA analyst’s testimony:

As Mobley explains in detail, a forensic DNA analyst must perform an independent analysis of raw data to form their expert opinion. In this process, the underlying DNA data collectors do not reach their own conclusions that are then merely reviewed by the forensic expert based solely on a cold record. This contrasts starkly with the process utilized in this case. As . . . Schell testified, her expert opinion could go no further than the determination that she “would have come to the same conclusion” as the testing analyst. This . . . is not an independent expert opinion arising from the observation and analysis of raw data. Unlike an analysis of DNA data, there is no opportunity for a meaningful cross-examination of testimony concerning the results of a drug test, and a defendant presented with such damning evidence can only hope to attack pure assumptions on whether procedures were properly followed during the forensic testing process. . . . [I]t is this sort of accountability, placed directly on the testing analyst, that the Sixth Amendment requires.

So where are we with regard to the confrontation clause and the use of analysts in drug cases?

Brewington doesn’t affect the viability of using the G.S. 90-95(g) notice and demand statute to obtain a waiver of confrontation rights with respect to the analyst’s report. (For a discussion of that procedure, see this paper at pp. 21-25).
If the defendant declines to waive his or her rights, the State can satisfy the confrontation clause by tendering the analyst who did the original testing.
If the original analyst is not available and there has been no prior opportunity to cross-examine, the State can satisfy the confrontation clause by offering a new analyst who has re-tested the substance and formed an opinion based on that work. See Brewinton Slip op. at 17 (substitute analyst’s testimony was objectionable because “she had no part in conducting any testing of the substance, nor did she conduct any independent analysis of the substance”).
If the testing analyst is not available and there has been no prior opportunity to cross-examine and re-resting is not possible (where for example the substance was consumed in the original testing or has been degraded so that re-testing can’t be done), the State can try to offer the analyst who did peer review on the original testing. Such a procedure finds support in State v. Hough, __ N.C. App. __, 690 S.E.2d 285 (2010) (no error when reports by non-testifying analyst on composition and weight of controlled substances were admitted as the basis of a testifying expert’s opinion where testifying expert peer reviewed the reports). However, even that case noted that not “every ‘peer review’ will suffice to establish that the testifying expert is testifying to his or her own expert opinion.” Brewington emphasized that point. Brewington Slip op. at 18. It also went a step further, holding that admission of testimony of a substitute analyst, who was functionally equivalent to a peer reviewer, violated the confrontation clause. Thus, notwithstanding Hough, use of a peer reviewer in a drug case is risky for the State.
At the same time, Brewington virtually closes the door on using an analyst who had no part at all in the original testing. After all, these were the facts of Brewington. While the use of such experts still may satisfy the confrontation clause with regard to DNA analysis, see State v. Mobley, ___ N.C. App. ___, ___ S.E.2d ___ (Nov. 3, 2009) (approving use of a substitute DNA analyst), it doesn’t appear to be an option any more in drug cases.

Finally, after Brewington, there may be renewed interest in exploring the possibility of remote testimony by the testing analyst. If that happens, we’ll explore the relevant constitutional issues in future posts.

Category: Evidence, Procedure, Uncategorized | Tags: brewington, confrontation clause, melendez-diaz, substitute analysts

Foundation for a Substitute Analyst’s Opinion after Melendez-Diaz

Posted on May 14, 2010 by Jessica Smith

As summarized in Jeff’s recent blog post, in State v. Brennan, the North Carolina Court of Appeals applied Locklear and Mobley and held that the defendant’s confrontation clause rights were violated by the testimony of a substitute analyst in a drug case. My own summaries of Locklear and Mobley are available here and here. Jeff got it right when he stated in his post that in light of the case law, the “quality of the lawyering and the ability of the witnesses to describe the review process may make a crucial difference” in a court’s decision about the admissibility of substitute analyst testimony.

So what’s a prosecutor to do? Here is some guidance.

After the witness is qualified as an expert, it is necessary to establish that the underlying reports are a basis of the expert’s opinion and that the expert’s opinion is an independent one, formed after his or her own analysis of the underlying data. If the expert merely reports the results of a non-testifying analyst, the evidence will be inadmissible. The following questions, formulated for use in a drug case, will help you to lay the appropriate foundation for this testimony.

Are you familiar with the tests that are done to identify a substance as a controlled substance?
What are those tests?
What type of equipment is used to do them?
What are the steps involved with doing those tests?
What types of results do they yield?
How are those results reported?
How accurate are those test results generally?
Have you reviewed the substance at issue in this case?
Have you reviewed the tests that were done in this case?
Were the appropriate tests done in this case?
How do you know that the appropriate tests were done?
Was the appropriate equipment used?
How do you know that the appropriate equipment was used?
Were all the steps of the testing procedure followed?
How do you know that all of the steps of the testing procedure were followed?
Are there any tests that were not done but should have been done?
Have you reviewed the results of the tests that were done in this case?
Specifically, what data did you review?
What is your opinion of the accuracy of the data obtained in this case?
Is this type of data – raw data generated from tests actually conducted by another person – normally relied upon by experts in your field to formulate opinions about the identity of a substance?
Did the data obtained provide you with enough information to form your own opinion about the identity of the substance at issue?
What is your opinion about the nature of the substance at issue?
On what information did you base that opinion?
In formulating your opinion, did you rely on the opinion of the analyst who performed the tests?

If an objection is made as to the testimonial nature of the underlying report, the prosecutor’s response should be that the report is not being admitted for its truth but as a basis of the expert’s opinion and thus is not covered by Crawford (recall that Crawford only applies to hearsay statements; if a statement is not offered for its truth, it’s not hearsay). If a limiting instruction is requested by the defense, it should be given by the judge.

If folks have suggestions on how to improve on the proposed colloquy, post away!

Category: Evidence, Procedure, Uncategorized | Tags: brennan, confrontation clause, crawford, foundation, melendez-diaz, substitute analysts

State v. Brennan: Substitute Analysts, Again

Posted on May 4, 2010 by Jeff Welty

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.

Category: Evidence, Uncategorized | Tags: brennan, confrontation clause, crawford, melendez-diaz, mobley, substitute analysts

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

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