The United States Supreme Court has before it several pending petitions that could clarify the scope of the Sixth Amendment right of confrontation. Until today lower courts have been completely split in their reasoning in their attempts to resolve Confrontation Clause challenges.
In the case of Turner v. United States, the defendant is appealing his conviction in the United States District Court for a drug distribution charge based on the fact that the chemist that performed the analysis of the cocaine at issue did not testify.
To prove that the substance was cocaine, the Government called a lab supervisor who reviewed the report of the original forensic analyst and concluded that he would have reached the same conclusion even though he did not personally conduct any of the testing. In the Turner case, the technician who actually tested the cocaine was on maternity leave.
The lab supervisor that was called to the stand in her place was an expert in the field, and testified as to the proper procedure for testing a narcotic. The trial court then heard the supervisor testify that the proper procedure was followed in Turner’s case even though he himself did not have personal knowledge of the analysis conducted by the absent technician. The supervisor did state, however, that he reviewed the handwritten notes and generated data, and reached the same conclusion based on the information provided.
The 7th Circuit affirmed the conviction finding the following with regard to the defendant’s confrontation clause challenge to the supervisor’s testimony:
- Applying Williams, the circuit court found that the analysis targeted the defendant, and that the statement would likely be considered for its truth because the case was a jury trial; and
- The circuit court found the report the functional equivalent of the report in Bullcoming.
Given these inferences, the circuit court found that the lab report was in fact testimonial, and so subject to the Confrontation Clause. Despite this conclusion, however, the circuit court did not find a confrontation clause violation, holding that
- The lab supervisor could testify regarding the procedures and safeguards of the lab that he supervises based on his own experiences;
- The lab supervisor only testified to his own opinions; and
- FRE 703 permits an expert to rely on the opinion of another expert.
Further, the court found any error harmless because there was considerable evidence that was consistent with the lab results. The Turner petition is pending but would seem to be the appropriate case to clarify the meaning of the Court’s earlier Williams decision.
Galloway v. Mississippi
In another Confrontation Clause challenge pending review, Galloway v. Mississippi, the petitioner is a defendant who was convicted of murder. DNA evidence tested and analyzed at a lab was a critical component of the prosecution’s case at trial.
The prosecution did not call the technician that performed the DNA testing analyses. Instead, it called another analyst who merely interpreted the data and results reached by the technician. The testifying analyst was not present during the original analysis and so had no personal knowledge.
In the petition for certiorari, defense counsel argued that the state court’s holding was contrary to Bullcoming. The Bullcoming decision prohibits the prosecution from insulating a forensic analyst from testifying by calling another analyst who did not observe or participate in the testing, and is testifying to the reliability of the original analyst’s findings.
The defense argued that the defendant had the right to confront the technician who conducted the DNA testing (collected the DNA samples), and not merely the analyst who only subsequently analyzed the samples collected by the original technician. The defense argued that this prosecutorial tactic insulated the original technician from cross examination while allowing the jury to hear the results of her analysis.
Like Turner, this case should be overturned by the Court. I would expect the Court to allow the petition given the clear error in not following the Bullcoming decision.
Brewington v. North Carolina
The United States Supreme Court is also considering the case of Brewington v. North Carolina, which concerns the North Carolina Supreme Court’s reversal of a lower appellate court’s decision to vacate a conviction on cocaine possession charge.
The defendant was pulled over by an officer while riding a bicycle that was not equipped with reflectors. During a consensual search, the officer discovered a napkin containing an off-white substance tucked in the defendant’s sock. That substance was transported to the state drug lab, where it was analyzed and tested by an assistant supervisor who issued a certified report confirming the substance to be cocaine.
At the time of the trial, the prosecution called another lab technician to testify as to the nature of the powder, and did not attempt to even explain to the court if the assistant supervisor herself was not herself available to testify. Instead, the trial court allowed the testifying technician to rely on the notes and reports issued by the absent assistant supervisor, and form an independent opinion, based on the information provided, that the substance was in fact cocaine.
The defendant was subsequently convicted, and appealed the conviction to the lower state appellate court. The lower appellate court vacated the conviction on the grounds that the trial court’s order allowing another lab technician to testify as to the results reached by an absent technician was a clear violation of the defendant’s Confrontation Clause rights under Bullcoming and Menandez-Diaz.
In short, the appeals court found that although the testifying technician was also an expert in the field, her expert opinion as to the nature of the white powder is only as reliable as the data and information that was measured and observed by the absent assistant supervisor. By offering the expert opinion testimony of another technician using the data collected and measured by absent technician, the prosecution essentially contravened the Confrontation Clause by not allowing the defendant an opportunity to cross-examine the absent assistant supervisor on her methods and practices in collecting the data that both she and the testifying technician relied on.
The bottom line, according to the appeals court, was that the testifying technician was not herself involved in any of the testing leading to the accumulation of the data that her testimony relied on; nor did she conduct her own analysis of the powder.
The state’s high court accepted the reasoning of the lower appeals court, but a slight majority attempted to distinguish Brewington from the earlier federal precedent in Confrontation Clause cases by holding that the expert testimony was not unconstitutional since the testifying technician did form her own independent expert opinion.
It seems that the North Carolina Supreme Court ruled incorrectly in direct opposition to prior case law. The case law, although unclear, is consistent in holding that surrogate expert testimony is not admissible if the defendant has not had a prior opportunity to cross examine the original technician.
DUI Case at the Supreme Court on Sixth Amendment Issue
In the context of an OUI offense, an interesting petition for writ of certiorari was filed by Attoreny Justin McShane under the title of Yohe v. Pennsylvania. In Yohe, the defendant was pulled over for broken tail lights and was arrested for an OUI and subsequently provided blood samples for analysis.
The defendant’s blood samples were transported to a state lab and examined by two separate analysts. The lab results from each analysis were delivered to the assistant lab director, who reviewed the procedures and results of each lab analyst, and found the two results to be consistent and conclusory in verifying the blood alcohol level of the defendant to be above the statutory limit.
The lab director then issued his electronic signature of approval on one of the lab reports. This signed lab report was offered into evidence by the prosecution over the defendant’s objection, and the lab director testified as to the accuracy and validity of the conclusion of the report. The lab director also admitted, however, that he did not personally handle, observe, or perform the test leading to the results relied on by the prosecution.
In his petition appealing the conviction, Attorney McShane argued that the state supreme court erroneously extended the Court’s reasoning in Bullcoming to the lab director. The crux of the argument is that the state court misinterpreted the term “witness” as used in a Confrontation Clause analysis to a lab director who relied completely on the tests and observations of non-testifying analysts in forming his conclusion.
Yohe presents an interesting set of facts that merges the circumstances discussed in both Brewington and Galloway as described above:
- As in Galloway, the lab analysis in Yohe consisted of multiple lab technicians conducting the lab analysis. Yet, the prosecution failed to call all of the original analysts to testify and face cross-examination; instead, the prosecution relied on only one lab staff member who offered conclusions which relied on the measurements and observations collected by his colleagues rather than conducting his own tests.
- The lower courts in Yohe also accepted the lab director’s testimony because it found the testimony to be an independent expert opinion. The courts in Brewington also accepted similar expert testimony on the same grounds.
One of the main distinctions between Yohe and Brewington and Galloway, however, is in the manner the lower courts interpreted the case law and applied the term “witness” to the lab director. The lower courts in Yohe primarily accepted the lab director’s testimony on the reasoning that the term “witness” extended to the lab director, since he reviewed the separate lab analyses, compared the results, and issued his signature certifying the report offered into evidence.
According to the lower courts in Yohe, the lab director’s involvement to this extent was sufficient to qualify him as a witness through which the prosecution could offer the lab results and who could be cross examined by the defendant for reliability.
James v. United States
Another petition addressing the right of confrontation is James v. United States, which considers whether pathology reports are testimonial under the confrontation clause. The petition for certiorari filed by the defendant reveals the split amount lower courts in determining whether pathology reports are testimonial. The petition outlined the different approaches being taken by courts.
In James, the defendant was charged with conspiracy to commit murder to obtain life insurance benefits. The prosecution sought to establish that the victim died of ammonia poisoning. The prosecution called a medical expert to testify to both the contents of a toxiocology report and an autopsy report. The defendant objected to the introduction of the toxiocology report without the opportunity to confront the maker of the report in court and subject the author to cross examination.
The Court held that autopsy reports are not testimonial and that the toxicology report was an integral part of the autopsy report. The medical expert then testified to the cause of death based on his reading of the toxicology and autopsy reports.
Confrontation clause challenges became popular defenses to the admissibility of expert testimony only very recently, with most of the case law emerging from the last decade. Despite the different cases addressing this Sixth Amendment claim, the United States Supreme Court has continuously been unclear on how lower courts ought to apply its decisions to protect the defendant’s right to confrontation. And, unfortunately, the most recent decision in Williams has only confused the lower courts further.
The cases currently pending before the Court provide ample opportunity for the Court to finally explain its reasoning in its earlier precedents, giving much more guidance to trial courts on how confrontational clause challenges should be addressed in the future.
If you have a Sixth Amendment Confrontation Clause issue in the trial or appellate courts, feel free to contact Attorney DelSignore to discuss the issue. Attorney DelSignore has chaired the MCLE Sixth Amendment seminar for the past two years and would be pleased to add your case to the material.