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<i>Crawford</i> update: Part Two
By Hon. Elia V. Pirozzi

The objective of this article and accompanying self-study test is to provide readers with the latest developments concerning Crawford v. Washington, 541 U.S. 36 (2004), and the Sixth Amendment's right to confrontation as applied to forensic analysis of evidence. Part One of this article, printed Aug. 27, provided a review of the Crawford opinion discussing the definition of "testimonial" statements and assessing the unavailability of a hearsay declarant and a defendant's prior opportunity for cross-examination, as well as the latest cases dealing with Crawford's application to ongoing police emergencies and 911.

Lab Reports and the Expert Witness Dilemma

There have been numerous cases addressing the characterization of forensic lab reports and analyses that may assist a practitioner or judicial officer in identifying and evaluating Sixth Amendment Confrontation Clause issues. This area of law is continually evolving. This means one must carefully read each opinion and identify the factual distinctions made by the court in each case.

General Overview

As a basic proposition, statements made in forensic laboratory reports (as well as other types of forensic evidence), regardless of their potential use at trial, are nontestimonial if the notes of the expert (not testifying) "constitute a contemporaneous recordation of observable events rather than the documentation of past events." People v. Geier, 41 Cal. 4th 555 (2007). The state Supreme Court in Geier found it constitutionally permissible for a DNA expert to testify based on the notes (produced in accordance with accepted protocol for the analysis of extracted scientific samples) that were prepared and chronicled by another nontestifying DNA expert: "[T]he crucial point is whether the statement represents the contemporaneous recordation of observable events." If so, such notes will in all likelihood be considered nontestimonial.

Geier further concluded that when evaluating a DNA report, a statement should be deemed testimonial if "(1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial."

Melendez-Diaz v. Massachusetts

In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the U.S. Supreme Court held that a certificate of state laboratory analysis (measuring a quantity of drugs attributed to the defendant) was prima facie evidence of the substance's composition and weight. As such, the certificates were considered affidavits (falling into the category of a "core class" of "testimonial" statements described in Crawford, triggering the defendant's right to confront the analysts) made "under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Thus, without a sufficient showing that the laboratory analysts were unavailable to testify and that there was a previous opportunity to cross-examine these individuals, they were characterized as "witnesses" under the Sixth Amendment entitling the defendant to confront them. It is also important to note that the majority in Melendez-Diaz, in distinguishing chain of custody issues, acknowledged that although the prosecution has the obligation to establish chain of custody, "this does not mean that everyone who laid hands on the evidence must be called."

Melendez-Diaz may impact the ruling of the state Supreme Court in Geier. But Geier did not deal with the use of an "affidavit," which could be a significant distinction in its interpretation in light of the reasoning employed by the U.S. Supreme Court in Melendez-Diaz. Upon careful analysis, the conclusions reached in the two cases do not appear inconsistent. Geier involved notes by a nontestifying scientific expert that, although relied upon by another expert in trial, was not admitted into evidence. By comparison, Melendez-Diaz dealt with a sworn "affidavit" (often viewed as a type of testimonial material) presented at trial (a significant fact for Justice Clarence Thomas in his concurring opinion in Melendez-Diaz and that surfaced once again in his concurring opinion in Williams v. Illinois, 132 S. Ct. 2221 (2012) infra). It is also noteworthy that the U.S. Supreme Court denied certiorari in Geier.

Bullcoming v. New Mexico

In Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the U.S. Supreme Court was faced with a situation where, in a driving under the influence case (occurring after Crawford but before Melendez-Diaz), a certified forensic laboratory report revealed the defendant's blood-alcohol level to be substantially above the legal limit. The analyst who prepared the report did not testify and was not claimed by the prosecution to be unavailable. Instead, a substitute analyst (a "surrogate witness") was called to testify to validate the report as being familiar with the testing mechanism and the laboratory's testing policies and procedures but not specifically the analysis of the defendant's blood sample.

The court analogized the forensic report to the Melendez-Diaz certificates and, accordingly, deemed it testimonial as being created for an evidentiary purpose. Furthermore, the court concluded that the surrogate analyst who did not sign the certification, or personally perform or observe the administration of the test, did not satisfy the defendant's right to confrontation. But Justice Sonia Sotomayor, in her concurring opinion, intimated that perhaps this scenario would be constitutionally acceptable if the testifying witness was a direct supervisor or an individual with some other "personal connection" to the testing itself. Further, Bullcoming did not address circumstances involving the introduction of forensic results through "surrogate" witnesses concerning experts using reports of other experts or reports consisting of machine-generated data.

The Bullcoming decision may necessitate the termination of prosecutions in cases where drug and/or alcohol test reports cannot be introduced through other analysts. And, in homicide cases, autopsy reports may be inadmissible if the medical examiner is unavailable to testify at trial.

California Appellate Cases

There have been several California appellate decisions applying the principles set forth in Melendez-Diaz, but decided before Bullcoming. Although the state Supreme Court has granted review in all of them, their discussions are instructive on the topic, and a representative group of them are discussed below.

In People v. Rutterschmidt, 176 Cal. App. 4th 1047 (2009) rev. granted, the 2nd District Court of Appeal held that a scientific expert's testimony as to toxicology results contained in reports prepared by other analysts did not violate the Confrontation Clause. The court distinguished Melendez-Diaz and based its decision on the fact that (1) the defendant failed to object to the expert's testimony, (2) one expert can rely on another expert's report to formulate an opinion, (3) the testifying expert was available for cross-examination, and (4) the reports themselves were not admitted into evidence.

By contrast, the 3rd District in People v. Dungo, 176 Cal. App. 4th 1388 (2009), rev. granted, held that when an expert relied on an autopsy report to form an opinion, the defendant was entitled to cross-examine the coroner. The court, in relying heavily on Melendez-Diaz, concluded that (1) the coroner's report was "testimonial" because it was conducted during a homicide investigation and could be used at trial, (2) the autopsy report was prepared in "anticipation of prosecution," and (3) the coroner was a "witness" for purposes of the Sixth Amendment to the U.S. Constitution.

Furthermore, in People v. Lopez, 177 Cal. App. 4th 202 (2009), rev. granted, a case involving a blood-alcohol test used in a vehicular manslaughter prosecution, the 4th District held that under Crawford and Melendez-Diaz, the admission of a blood-alcohol report by a specific and identified technician was inadmissible hearsay when another criminalist testified at trial as to the processing procedures of the test. The court in reaching its decision found that the blood-alcohol report was "indistinguishable" from the "certificates" in Melendez-Diaz, and there was no evidence that the initial technician was unavailable for cross-examination.

Additionally, the 5th District in People v. Bowman, 182 Cal. App. 4th 1616 (2010), rev. granted, distinguished Melendez-Diaz, holding that, in lieu of the criminalist who performed chemical testing of methamphetamine (and who was out of the state for a prolonged period of time), the testimony of a supervisor as to the analysis of the test did not violate the defendant's Sixth Amendment right of confrontation. The court concluded that laboratory notes and reports could be relied upon by an expert when such material was assembled as part of the criminalist's job and not for the purpose of incriminating the defendant.

Lastly, in People v. Sanchez, 193 Cal. App. 4th 928 (2011), rev. granted, the 6th District held that a certificate reflecting the absence of a record that the defendant was a registered owner of a firearm was testimonial because it was a solemn declaration made for the purpose of establishing or proving some fact (no witness testified as to the certificate). The court determined that the admission of the certificate violated the Confrontation Clause even though it did not involve scientific evidence as was the case in Melendez-Diaz.

Williams v. Illinois

In Williams v. Illinois, the U.S. Supreme Court was faced with the admission of DNA test results through an expert witness (a state forensic biologist) who performed the comparison of samples herself but did so relying in part on a report prepared by a subcontracting laboratory (Cellmark). The victim provided a semen sample from the alleged rape, and the defendant's DNA was obtained independently from an unrelated case. The expert witness compared the two profiles and concluded that they matched (thereby placing the defendant's DNA at the crime scene); however, no individual from the laboratory testified at trial.

The issue presented in Williams was whether a forensic expert may testify to DNA test results based, at least in part, on data generated by other nontestifying analysts without violating the Confrontation Clause.

The court noted that it has long been accepted that out-of-court statements related by an expert solely for the purpose of explaining the assumptions on which his or her opinion rests are not offered for the truth and fall outside the parameters of the Confrontation Clause (even if the expert lacks first-hand knowledge of those facts). Justices Samuel Alito, John Roberts, Anthony Kennedy, and Stephen Breyer concluded that, even assuming such statements are offered for the truth, they are not within the purview of Crawford unless they extend to matters at the "core" of historical abuses. Specifically, to violate a defendant's confrontation rights, the out-of-court statement must (1) have the "primary purpose of accusing a targeted individual of engaging in criminal conduct" and (2) consist of "formalized statements such as affidavits, depositions, prior testimony or confessions" (that "core class" of statements contemplated by Crawford). Justice Thomas, although disagreeing that the Cellmark report was not offered for the truth, concurred that it was not "testimonial" because it did not bear the "indicia of solemnity" and thus was not a statement by a witness within the meaning of the Confrontation Clause (a rationale consistent with his concurring opinion in Melendez-Diaz). Justice Breyer, in his concurrence, opined that the Cellmark report was of the type that presumptively lies outside the perimeter of the Confrontation Clause and agreed that the report did not seek to accuse the defendant. He further suggested that additional briefing and re-argument would be helpful because these reports necessarily involve "layer upon layer" of technical statements, and the overriding question to be resolved is how the Confrontation Clause will apply to such statements made by lab technicians.

Adding to the uncertainty in this field, the U.S. Supreme Court has granted review in Briscoe v. Virginia (certiorari granted June 29, 2009) 129 S. Ct. 2858, a case involving whether a Confrontation Clause challenge can be avoided when a state permits the introduction of forensic analysis certificates with the proviso that the defendant has the right to call the criminalist or analyst as a witness.

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