Let’s start with my former evidence professor, Paul Gianelli (a former Army JA).

Confrontation, Experts, and Rule 703

Paul C. Giannelli Case Western Reserve University – School of Law
20 J.L. & Pol’y 443 (2012)
Case Legal Studies Research Paper No. 2012-24

Abstract:
The United States Supreme Court has decided several cases concerning expert testimony and the Confrontation Clause. This essay argues that confrontation issues are complicated by Federal Evidence Rules 703 and 705, which changed the common law rules. Altering the common law made sense in civil cases because civil rules of procedure provide extensive discovery, which ensures basic fairness. In contrast, discovery in criminal cases is quite limited, which undercuts an accused’s ability to meaningfully confront prosecution experts at trial.

And, the ever resourceful and confrontation-litigant Professor Richard D. Friedman, “Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited,” blogPost, 19 June 2012.

For an interesting pre-decision discussion.

Williams v. Illinois and the Confrontation Clause: Does Testimony by a Surrogate Witness Violate the Confrontation Clause?

Ronald J. Coleman Georgetown University Law Center

Paul F. Rothstein Georgetown University Law Center
January 22, 2012

Georgetown Public Law Research Paper No. 12-007

Abstract:
This article comprises a four-part debate between Paul Rothstein, Professor of Law at Georgetown Law Center, and Ronald J. Coleman, who works in the litigation practice group at Cleary Gottlieb Steen & Hamilton LLP, on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.
The debate, originally published on Public Square.net, includes the following parts:

• Part 1: Ronald J. Coleman: Dexter’s Dilemma: Rule 703 Does Not Violate the Confrontation Clause
• Part 2: Paul Rothstein: Surrogate Witnesses Just Won’t Cut It: A Response to Ronald Coleman
• Part 3: Ronald J. Coleman: More on Williams v. Illinois: A Response to Paul Rothstein
• Part 4: Paul Rothstein: Williams v. Illinois: Responses to Coleman’s Arguments

In every case involving [state your poison], we are confronted with relativity and the degree to which such conduct may have affected the substantial rights of the defendant. It is better to follow the rules than to try to undo what has been done. Otherwise stated, one ‘Cannot unring a bell’; ‘after the thrust of the saber it is difficult to say forget the wound’; and finally, ‘if you throw a skunk into the jury box, you can’t instruct the jury not to smell it’. Dunn v. United States, 307 F.2d 883, 886 (5th Cir. 1962)(emphasis added).

And you may be familiar with this research.

Diamond Shari Seidman, and Neil Vidmar, Jury Room Ruminations on Forbidden Topics, 87 VA. L. REV. 1857 (2001); Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b) and 609(a), 38 EMORY L.J. 135, 175-78 (1989) (discussing studies on curative instructions and noting that “[t]he empirical research demonstrates that jurors are deeply affected by prejudicial comments and evidence and that curative instructions tend to increase the prejudice rather than decrease it. Moreover, the research shows that the impact is much greater in weak cases than in strong ones.”).

Let’s assume for the moment that as a result of United States v. Blazier the prosecution decides that they will approach the naked urinalysis case differently when calling an expert. It seems, for the moment, that an expert might still be able to testify but they ought to be limited to the computer test printouts for their testimony. See Mil. R. Evid. 703. There would still be a viable issue that the substitute expert can’t testify about the receipt and handling of the sample when it arrived at the lab or anything as to chain of custody and quality assurance. My sense is that the substitute expert ought to be limited to interpreting the test data only. In other words, it’s my view that Blazier narrows what the substitute expert can testify to without running into a confrontation issue. If the prosecution wants to establish the sample arrived safely, that it was not damaged, etc., then they need to call the “receptionist.” Testimony about that by an expert would still be hearsay and subject to a confrontation challenge, as well as relevance under Mil. R. Evid. 401, 403 and 703.

But, assuming the substitute testifies about the results printed out from the MS/GCMS (and that the judge likely allows him or her to testify about everything else) and adopts the test printouts for the purpose of his or her opinion, then that leads to another issue — the need for a “Limiting Instruction,” in accordance with Mil. R. Evid. 105.

Rule 105. Limited admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the military judge, upon request, shall restrict the evidence to its proper scope and instruct the members accordingly.

That now takes us to a new post from one of my favorite bloggers, Professor Colin Miller.

Like its federal counterpart, Arizona Rule of Evidence 105 provides that When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. And, as the recent opinion of the Supreme Court of Arizona in State v. Gomez, 2010 WL 5173627 (Ariz. 2010), makes clear, the submission of an inadequate instruction does not waive the defendant’s right to a limiting instruction in a case covered by Rule 105.

Gomez is a case where DNA evidence was used.

In performing DNA testing and analysis, the laboratory used an “assembly line” method that involved seven steps. . . . Various technicians involved in the laboratory processes did not testify at Gomez’s trial.

Sound familiar?

The State instead called a single witness about the DNA testing. That witness, a senior forensic analyst and supervisor at the laboratory, testified in detail about the laboratory’s operating procedures, standards, and safeguards. Although the analyst had not witnessed all of the steps in the process, she had checked the technicians’ records for any deviations from the laboratory’s protocols. The analyst had performed the initial evidence screening and DNA extraction on most of the items, and she testified about the chain of custody for all items. For each sample, the analyst personally performed the final step in the process, interpretation and comparison. This step required her to compare the DNA profiles generated in the laboratory, and it was the only step involving human analysis.

The analyst testified that several profiles derived from evidence at the crime scene “matched” the profile obtained from Gomez’s blood sample. The data from the testing process were not introduced into evidence as exhibits. Now, if this data were introduced, it could have violated Gomez’s rights under the Confrontation Clause pursuant to the Supreme Court’s opinion in Melendez-Diaz v. Massachusetts. But, the prosecution instead used the new technique of merely having the analyst use this data as the basis for her opinion under Rule 703, thus circumventing the Confrontation Clause.

Another look at Blazier and Mil. R. Evid. 703, 704, and 705 continues to be warranted. It seems to me there is room to litigate the scope of any testimony admissible under Mil. R. Evid. 703. I know we’ve focused a lot on the confrontation issues, and some exist still. But beyond the confrontation issues there a other lingering evidentiary objections.

There was an astonishing moment yesterday at a breakout session on fingerprint examination at theTexas Forensic Science Seminar, at which Department of Public Safety fingerprint examiner Bryan Strong (who seemed like a really nice guy so I hate to pick on him) was describing how his division implemented the ACEV method of fingerprint examination in ways that may violate the state and prosecutors’ obligations under Brady v. Maryland.

blah, blah.

Anyway, Mr. Strong described what happens when the first examiner finds a match but the verifying analyst doesn’t agree. In such instances, he said, they notified their supervisor and all of them conferred to make a decision. A defense attorney in the crowd asked what seemed to me an obvious question: When two examiners originally disagreed but a supervisor resolved the issue in favor of a match, was that disagreement recorded in the final report? No, replied Strong, only the conclusion. At this, the audience began to murmur and fidget.

Does this issue have relevance to Blazier and/or similar cases. The rest of the piece is an interesting, and continuing, criticism of fingerprint comparison evidence.

One issue raised by the new case concerns whether a majority of the Court still supports the Confrontation Clause analysis established under Crawford v. Washington in 2004, and Melendez-Diaz v. Massachusetts in 2009. Two Justices who voted in the majority (John Paul Stevens and David H. Souter) have since retired. The five majority votes in Melendez-Diaz v. Massachusetts included author Justice Antonin Scalia and Justices John Paul Stevens, David H. Souter, Clarence Thomas (who also filed a concurring opinion), and Ruth Bader Ginsburg. The four dissenting included Justice Kennedy, who authored the dissent, and Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Samuel Anthony Alito, Jr.. It is unclear whether a new majority will be formed on the Confrontation Clause analysis and how the newest Justices (Sonia Sotomayor and Elena Kagan) will vote on Confrontation Clause issues.

The U. S. Supreme Court has granted certiorari in Bullcoming v. New Mexico. Courtesy of CAAFLog here is the granted issue:

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 the laboratory analysis described in the statements.

Sounds like Blazier doesn’t it. Question, will CAAF defer ruling in Blazier and several riders awaiting a decision in Bullcoming.

Here is the decision in State v. Bullcoming.

Courtesy of Prof. Friedman:

The petition for a writ of certiorari.

Respondents brief in opposition.

Reply brief of petitioner.

State v. Aragon, a companion case to Bullcoming.

Commenting on this case, Kent Schiedegger over at crimeandconsequences observes:

Should the analyst be relieved he doesn’t have to go testify or insulted he is called a “mere scrivener”?

Here is the SCOTUSBlog link.

The Virginia Supreme Court today issued its decision in Briscoe on remand from the United States Supreme Court. . The court held that the former Virginia statutory scheme (under which the defendant had to call a lab analyst as his witness if he wanted to examine the analyst) was unconstitutional. This, of course, was the point that I sought to establish in bringing the petition for certiorari; Melendez-Diaz made the point clear, and now the Virginia Supreme Court has drawn the obvious conclusion. The court held that the error was harmless in Briscoe’s case, but Cypress’s conviction was reversed. I expect his case will plead out.

Here are the SCOTUSWiki links on the Supreme Court litigation.

No. 10-0668/AF. U.S. v. Jerrod D. NUTT. CCA S31600. Review granted on the following issues: WHETHER, UNDER MELENDEZ-DIAZ v. MASACHUSETTS, 129 S.CT. 2527 (2009), THE ADMISSION OF THE DRUG TESTING REPORT VIOLATES APPELLANT’S SIXTH AMENDMENT RIGHTS UNDER THE CONFRONTATION CLAUSE. WHETHER TRIAL DEFENSE COUNSEL’S FAILURE TO OBJECT TO THE ADMISSION OF THE DRUG LABORATORY REPORT AT TRIAL FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF SO, DID ADMISSION OF THE DRUG TESTING REPORT CONSTITUTE PLAIN ERROR? WHETHER THE CONFRONTATION CLAUSE WAS SATISFIED BY TESTIMONY FROM DR. TURNER. IF DR. TURNER’S TESTIMONY DID NOT ITSELF SATISFY THE CONFRONTATION CLAUSE, WAS THE INTRODUCTION OF TESTIMONIAL EVIDENCE NEVERTHELESS HARMLESS BEYOND A REASONABLE DOUBT UNDER THE CIRCUMSTANCES OF THIS CASE IF HE WAS QUALIFIED AS, AND TESTIFIED AS, AN EXPERT UNDER M.R.E. 703? No. 10-0461/NA. U.S. v. Joseph A. SWEENEY. CCA 200900468. Review granted on the following issues: WHETHER, IN LIGHT OF THE UNITED STATES SUPREME COURT’S RULING IN MELENDEZ-DIAZ v. MASSACHUSETTS, 557 U.S. ___, 129 S.CT. 2527 (2009), THE ADMISSION INTO EVIDENCE OF THE NAVY DRUG SCREENING LABORATORY URINALYSIS DOCUMENTS VIOLATED APPELLANT’S SIXTH AMENDMENT RIGHT TO CONFRONT THE WITNESSES AGAINST HIM. WHETHER TRIAL DEFENSE COUNSEL’S OBJECTION TO THE DRUG LABORATORY REPORT CONSTITUTED A VALIDCRAWFORD OBJECTION. IF NOT, THEN WHETHER TRIAL DEFENSE COUNSEL WAIVED OR FORFEITED THE CONFRONTATION CLAUSE ISSUE, AND, IF FORFEITED, WHETHER ADMISSION OF THE REPORT CONSTITUTED PLAIN ERROR.

Whether statements to investigating police officers accusing someone of a crime and describing the offense after it has been completed fall outside the scope of the Confrontation Clause merely because the suspect remains at large or the declarant has been injure

The issue will potentially impact United States v. Blazier , 68 M.J. 544 (A. F. Ct. Crim. App. 2008) (yes, that’s the correct volume according to LEXIS), concerning whether surrogate expert testimony complies with Melendez-Diaz. C.A.A.F. partially decided some issues, but:

[W]e order briefing from the parties, and invite briefing from the government and defense appellate divisions from the other services, on the following: While the record establishes that the drug testing reports, as introduced into evidence by the prosecution, contained testimonial evidence (the cover memoranda of August 16), and the defense did not have the opportunity at trial to cross-examine the declarants of such testimonial evidence, (a) was the Confrontation Clause nevertheless satisfied by testimony from Dr. Papa? See, e.g., Pendergrass v. Indiana, 913 N.E.2d 703, 707-08 (Ind. 2009). But see, e.g., State v. Locklear, 681 S.E.2d 293, 304-05 (N.C. 2009); or (b) if Dr. Papa’s testimony did not itself satisfy the Confrontation Clause, was the introduction of testimonial evidence nevertheless harmless beyond a reasonable doubt under the circumstances of this case if he was qualified as, and testified as, an expert under M.R.E. 703 (noting that “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [upon which the expert relied] need not be admissible in evidence in order for the opinion or inference to be admitted”)? Compare, e.g., United States v. Turner, 591 F.3d 928, 933-34 (7th Cir. 2010), and United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008), with United States v. Mejia (a.k.a. Little Chino), 545 F.3d 179, 197-98 (2d Cir. 2008). Appellant will file a brief on the above issues no later than thirty days after the date of this opinion. Appellee will file a brief no later than thirty days after the filing of Appellant’s brief. Appellant may file a reply no later than ten days after the filing of Appellee’s brief. If the government and defense appellate divisions of the other services file amicus curiae briefs on the above issues in support of a party, such briefs may be filed no later than ten days after that party has filed its brief. Pending receipt of the briefs, the case will remain on the docket for final decision.

United States v. Blazier, 68 M.J. 439, 443-44 (C.A.A.F. 2010).

The government filed its brief on the C.A.A.F. specified issues this week. NIMJ has filed an amicus brief (I have abstained on that as I was trial defense counsel), I believe NACDL may have filed an amicus, but I haven’t seen the filing.

In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are “testimonial” and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant’s trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their “own” conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

This case presents the question whether the admission of drug testing reports” over defense objection violated Appellant’s rights under the Sixth Amendment’s Confrontation Clause. The antecedent question, whether certain admitted evidence was testimonial, we answer affirmatively, and contrary to the decision of the United States Air Force Court of Criminal Appeals (CCA), United States v. Blazier, 68 M.J. 544 (A.F. Ct. Crim. App. 2008). Having resolved the threshold question, and given the ubiquity of drug testing within the military, we conclude that additional briefing is warranted prior to final disposition of the case.