Decision Below (New Mexico supreme court)
Whether the Confrontation Clause 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.
Follow-up to Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (proof of nature and quantity of controlled substance via notarized affidavit rather than live testimony violated confrontation). As the cert petition puts it, “State v. Bullcoming raises the question of whether the prosecution complies with that holding by introducing forensic reports through the in-court testimony of someone, such as a supervisor, who did not perform or observe the testing discussed in the reports.” Here’s how the New Mexico supreme court finessed the problem:
{19} However, the Confrontation Clause permits the admission of testimonial statements “so long as the declarant is present at trial to defend or explain it.” Crawford, 541 U.S. at 59 n.9 (citation omitted). Although the analyst who prepared Exhibit 1 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. Cf. Melendez-Diaz, 557 U.S. at ___, 129 S. Ct. at 2537-38 (stating that the methodology used in generating the reports “require[d] the exercise of judgment and present[ed] a risk of error that might be explored on cross-examination”); State v. Aragon, 2010-NMSC-008, ¶ 30, __ N.M. __, __ P.3d ___ (No. 31,187, February 12, 2010) (holding that “[t]he determinations of whether a substance is narcotic and its degree of purity . . . must be classified as ‘opinion,’ rooted in the assessment of one who has specialized knowledge and skill”). Thus, the analyst who prepared Exhibit 1 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. See United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (“[T]he Confrontation Clause does not forbid the use of raw data produced by scientific instruments, though the interpretation of those data may be testimonial.”); United States v. Washington, 498 F.3d 225, 230 (4th Cir. 2007) (“The raw data generated by the diagnostic machines are the ‘statements’ of the machines themselves, not their operators.”); United States v. Hamilton, 413 F.3d 1138, 1142-43 (10th Cir. 2005) (concluding that the computer-generated header information accompanying pornographic images retrieved from the Internet “was neither a ‘statement’ nor a ‘declarant’”). Under these circumstances, we conclude that the live, in-court testimony of a separate qualified analyst is sufficient to fulfill a defendant’s right to confrontation. See People v. Rutterschmidt, 98 Cal. Rptr. 3d 390, 411-12 (Cal. Ct. App. 2009), review granted and opinion superseded by People v. Rutterschmidt, 220 P.3d 239 (2009) (holding that the testimony of a qualified analyst who did not prepare the defendant’s toxicology report was admissible under the Confrontation Clause).
Any of this sound familiar? Might be because of State v. David Barton, 2006 WI App 18 (expert opinion of crime lab analyst, presenting own conclusions about tests performed by non-testifying analyst, didn’t violate confrontation):
¶16 Like the unit leader’s testimony in Williams, Olson’s testimony was properly admitted because he was a qualified unit leader presenting his individual, expert opinion. Olson not only examined the results of Lyle’s tests, but he also performed a peer review of Lyle’s tests. He formed his opinion based on his own expertise and his own analysis of the scientific testing. He then presented his conclusions to the jury, and he was available to Barton for cross-examination. Thus, Olson’s testimony satisfied Barton’s confrontation right and is admissible under the supreme court’s decision in Williams.
¶17 Barton contends that Crawford v. Washington, 541 U.S. 36 (2004), overrulesWilliams “to the extent Williams is interpreted as permitting the State to rely upon inadmissible hearsay as the basis for Olson’s testimony in this case.” We disagree. …
¶20 The holding in Crawford does not undermine our supreme court’s decision in Williams. Williams is clear: A defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another. Williams, 253 Wis. 2d 99, ¶¶9, 11. We do not see, and Barton fails to explain, how Crawford prevents a qualified expert from testifying in place of an unavailable expert when the testifying expert presents his or her own opinion.
For a more recent iteration: State v. Earnest Jean Jackson, 2009AP1449-CR, 4/27/10:
¶28 In State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919, the Wisconsin Supreme Court held that “[a] defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another.”[5] Barton, 289 Wis. 2d 206, ¶20. More specifically, Williams held that a defendant’s confrontation rights are satisfied by “the presence and availability for cross-examination of a highly qualified witness, who is familiar with the procedures at hand, supervises or reviews the work of the testing analyst, and renders [his or] her own expert opinion.” Id., 253 Wis. 2d 99, ¶20. The court noted that “[t]he critical point … is the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the work of others. In short, one expert cannot act as a mere conduit for the opinion of another.”[6] Id., ¶19.
In a fundamental sense, the Barton-Williams rule expresses the long-standing assumption that a witness may base his or her expert opinion on what would otherwise be inadmissible hearsay. That assumption is problematic (not least because it requires taking the underlying data — the very stuff that would be inadmissible hearsay without the witness who generated it — as true) but it’s certainly well-entrenched. Nonetheless, whatever else might be said, the Barton-Williams rule doesn’t involve a “mere scrivener,” which marks a possible point of distinction with the pending Bullcoming. Neither Bullcoming nor New Mexico cite this line of Wisconsin cases in their respective documents, and perhaps it will remain unaffected by the outcome. When you get right down to it, both Bullcoming and Barton-Williams involve an expert testifying to an opinion based on the work of a non-testifying analyst: for confrontation clause purposes, does it really matter whether the non-testifying witness is a “mere scrivener”? Isn’t the Question Presented, quoted above, broad enough to cover the Burton-Williams situation? We should find out soon enough.
Confrontation expert Richard Friedman points out that the same day the New Mexico supreme court decided Bullcoming, it came to a different conclusion in a case where a lab report prepared by one expert came in through the testimony of a different expert, State v. Aragon, 225 P.3d 1280. A testifying expert may rely on the facts or data of another, non-testifying expert; but may not rely on the opinion of that other expert. (“{26} Therefore, we must determine whether Young’s testimony was an expression of his own opinion or whether he was merely parroting Champagne’s opinion. Our review of the record leads us to the conclusion that Young was merely repeating the contents of Champagne’s report and her opinion.”) Aragon appears to be consistent with Barton-Williams, and in any event isn’t before the Supreme Court. Interestingly, though, Friedman perceives that the two cases should yield the same result: “In Bullcoming, the court holds that one analyst can testify to the facts reported by an absent analyst; in Aragon, the court holds that one analyst cannot pass on the absent analyst’s opinions. I do not believe the distinction will hold.” Ultimately, then, the viability of Barton-Williams may be implicated, and if that rule interests you, then you’ll definitely want to keep an eye on this case. And also, State v. Mahlik D. Ellington, 2005 WI App 243 (confrontation clause doesn’t prohibit a witness from reading to the jury admissible medical records), whose holding also might be affected by Bullcoming.
