Posts Tagged ‘crawford’

State v. Mobley: Green Light to the Use of Substitute Analysts

Wednesday, November 4th, 2009

by School of Government faculty member Jessie Smith

In previous posts [editor's note: her prior posts are here and here] I have written about the developing North Carolina law on the use of substitute analysts after Melendez-Diaz. In writing about State v. Locklear and State v. Galindo, both of which rejected substitute analyst testimony, I noted a common feature of those cases that might limit their holdings: in both cases, the experts appeared to merely be repeating opinions formed by non-testifying analysts. In light of this, I suggested that the door may still be open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. In State v. Mobley, decided November 3, 2009, the North Carolina Court of Appeals held that otherwise testimonial reports are admissible as the basis of a testifying expert’s opinion. Mobley thus allows the use of substitute analysts, in certain circumstances.

In Mobley, the defendant was convicted of rape and other charges. While the victim was being treated at the hospital, medical personnel collected a sexual assault kit, which was turned over to the police. Subsequent testing of the evidence matched the DNA profile of the perpetrator to the defendant’s DNA profile. The State also presented DNA evidence regarding another rape committed by the defendant, under Rule 404(b). On appeal, the defendant argued that his Confrontation Clause rights were violated when the trial court admitted testimony of a police crime laboratory analyst regarding DNA tests performed by other analysts.

The court of appeals began by noting that in Locklear, the testifying expert “was merely reporting the results of other experts. He did not testify to his own expert opinion based upon the tests performed by other experts, nor did he testify to any review of the conclusions of the underlying reports or of any independent comparison performed.” Slip Op. at p. 6. The court then distinguished the case before it, stating that the expert, Aby Moeykens, testified “not just to the results of other experts’ tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts’ tests, and her own expert opinion based on a comparison of the original data.” Slip Op. at pp. 6-7. It continued:

Well-settled . . . law allows an expert to testify to his or her own conclusions based on the testing of others in the field. This Court has held that evidence offered as the basis of an expert’s opinion is not being offered for the truth of the matter asserted. [Crawford] . . . noted that evidence offered for purposes other than proof of the matter asserted did not violate the Confrontation Clause. In Melendez-Diaz, the certificates at issue were being introduced not as the basis for any expert’s opinion but as prima facie evidence that the substance was cocaine. Thus, such evidence would implicate the Confrontation Clause. By contrast, in this case, the underlying report, which would be testimonial on its own, is used as a basis for the opinion of an expert who independently reviewed and confirmed the results, and is therefore not offered for the proof of the matter asserted under North Carolina case law.

Slip Op. at p.8 (citations omitted). Therefore, the court held, Ms. Moeykens’s testimony did not violate the Confrontation Clause. Slip Op. at. pp. 8-9.

It is worth noting that in Mobley, the defendant did not challenge the propriety of the methods used by the crime laboratory. Thus, the court concluded, Ms. Moeykens was “justified in relying on those procedures in her analysis.” Slip Op. at p. 7. This may suggest that in some circumstances such reliance would not be justified.

Additionally, the level of Ms. Moeykens independent review of the evidence clearly was significant to the court’s decision. Specifically, the court noted that she reviewed the original data and controls of the underlying reports from the buccal and vaginal swabs. Upon coming to the conclusion that each profile was generated properly, she undertook a technical review of the original analysts’ work, and based on that review and her comparison of numerical values at certain gene locations, formed an opinion as to the profile match. She undertook a similar level of review regarding the DNA reports relevant to the 404(b) evidence. Thus, it appears that there was substantial “raw data” upon which Ms. Moeykens formed her independent opinion. 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.

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Galindo and “Substitute Analysts” After Melendez-Diaz

Thursday, October 22nd, 2009

by School of Government faculty member Jessica Smith

On October 20, 2009, the North Carolina Court of Appeals decided State v. Galindo, holding that a Crawford violation occurred when the State’s expert gave an opinion, in a drug trafficking case, as to the weight of the cocaine at issue, based “solely” on a laboratory report by a non-testifying analyst.

To put the decision in context, recall that last June, the U.S. Supreme Court decided Melendez-Diaz, holding that forensic laboratory reports-such as those identifying a substance as a controlled substance-are testimonial under the new Crawford confrontation clause rule. A more detailed analysis of that case is available here. In State v. Locklear, the North Carolina Supreme Court applied Melendez-Diaz and held that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. As explained in more detail here, in Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in forensic pathology. Butts testified that, according to an autopsy report prepared by a non-testifying forensic pathologist, the cause of the victim’s death was blunt force injuries. Butts also testified about a dental analysis performed by a second non-testifying examiner; Butts testified that by comparing dental records and skeletal remains, that examiner had identified the body as that of the victim. The N.C. Supreme Court found that a Crawford violation had occurred because the reports at issue were testimonial. However, the opinion left some ambiguity about whether a distinction could be drawn between an expert who simply serves as a “mouthpiece” for a non-testifying analyst (arguably what happened in Locklear) and an expert who testifies to an independent opinion based on facts or data reasonably relied upon by experts in the field. In the first situation, the expert’s participation does not change the Crawford analysis: the underlying report is testimonial whether it is introduced in paper form or read into evidence by the testifying expert. In the second situation, it can be argued that the underlying report is no longer testimonial (and thus excluded from Crawford) because it is not being introduced for the truth of the matter asserted but rather as a basis of testifying expert’s opinion, who can be cross-examined at trial.

Galindo, the latest North Carolina case on point, involved the following fact pattern. Evidence was seized from a crime scene and submitted to a police crime laboratory, where an analyst identified the substance as cocaine and determined its weight. When the case was tried, the analyst was working in South Carolina and was not subpoenaed to testify. Instead, the State offered Michael Aldridge, a chemist who had supervised the laboratory for twenty years. Aldridge testified “that in his opinion - based ’solely’ on the lab report” prepared by the non-testifying analyst, the substance at issue was cocaine and weighed approximately 1,031.83 grams. On appeal, the defendant challenged only that portion of Aldridge’s testimony in which he opined as to weight of the cocaine. Citing Melendez-Diaz and Locklear, the court concluded that “Aldridge’s expert testimony based ’solely’ on the absent analyst’s lab report” was testimonial. It further concluded that the evidence was inadmissible under Crawford because the State had not established unavailability and a prior opportunity to cross-examine, but that the trial judge’s error in admitting the evidence was harmless beyond a reasonable doubt.

One reading of Galindo is that it rejects the use of substitute analysts who form opinions based on testimonial reports by non-testifying analysts. This reading finds support in the text of the decision, which as noted above, holds that Aldridge’s testimony based solely on the underlying report is testimonial. However, in Galindo, as in Locklear, Aldridge appears to have simply served as a “mouthpiece” for the non-testifying analyst. Although Aldridge testified to an opinion based on the underlying report whereas Butts appears to have simply read the non-testifying analyst’s conclusions into evidence, this might be a distinction without a difference. Recall that Aldridge gave an opinion as to weight of the cocaine. As I understand it, weight of a controlled substance is determined by putting the substance on a scale and recording its weight. If the testifying expert did not do the weighing, what basis is there for the opinion other than a notation on weight made by the non-testifying analyst? If there is no other basis, Aldridge’s testimony arguably was no different from Butt’s testimony in Locklear: repetition of an opinion formed by a non-testifying analyst. Such an opinion is inadmissible. First, testimonial evidence cannot be transformed into non-testimonial evidence simply by having a State expert articulate the empty words, “In my opinion.” Second, as an evidentiary matter, the opinion may be problematic in that it is not based on adequate facts or data. See e.g., State v. Rogers, 323 N.C. 658 (1989). Under this view, admission of Aldridge’s opinion was error but the door is still open to testimony by substitute analysts who offer their own independent opinions based on adequate facts or data reasonably relied upon by experts in the field. Of course, North Carolina recently adopted new and revised notice and demand statutes. As discussed here, these procedures may make this issue a moot one in some circumstances. However, when the defendant declines to waive his or her confrontation clause rights, the issue will arise again and thus we are sure to hear more on it from our appellate courts.

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State v. Locklear and the Admissibility of Forensic Reports

Tuesday, September 1st, 2009

by School of Government faculty member Jessica Smith

Last Friday, the North Carolina Supreme Court decided State v. Locklear, holding, in part, that a Crawford violation occurred when the trial court admitted opinion testimony regarding a victim’s cause of death and identity. Because the case raises questions about the viability of offering a “substitute analyst” to avoid a Crawford problem, I offer this post.

In Locklear, the State offered John Butts, the Chief Medical Examiner, as an expert in the field of forensic pathology. Butts testified to a 1997 autopsy report on a victim, prepared by Karen Chancellor, a forensic pathologist. Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim's] death was blunt force injuries to the chest and head.” Slip Op. at 18. Butts also testified “to the results of dental analysis performed by Dr. Jeffrey Burkes,” id. at 18-19, included in the autopsy report. Butts stated “that, by comparing [the victim's] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Id. at 19. Neither Chancellor nor Burkes testified at trial. On appeal, the defense argued that by admitting the opinion testimony of the non-testifying experts, the trial court violated the defendant’s Confrontation Clause rights. Rejecting the State’s argument to the contrary, the North Carolina Supreme Court cited Melendez-Diaz and held that the reports were testimonial. It went to conclude that a Crawford violation occurred because the State did not establish unavailability of the witnesses or a prior opportunity to cross-examine them, but that the error was harmless beyond a reasonable doubt.

What is unclear about Locklear-at least from the court’s decision-is whether Butts testified to an opinion on cause of death and identity based on facts or data contained in the reports or whether he simply read the reports into evidence. This is an important distinction. If the latter is true-that he simply read the reports into evidence-Locklear was a slam dunk for the defense. As I stated in an earlier paper on the implications of Melendez-Diaz, available here, in such a scenario, the report is being received as substantive evidence; since it is clearly testimonial under Melendez-Diaz, it may not be admitted unless the preparer testifies or if the State can establish unavailability and a prior opportunity to cross-examine. A close look at the court’s opinion suggests that this, in fact, is what happened. The opinion states that Butts testified that “according to the autopsy report prepared by Dr. Chancellor, the cause of [the victim's] death was blunt force injuries to the chest and head.” He also testified “to the results of dental analysis performed by [Burkes]” that “by comparing [the victim's] dental records to the skeletal remains, Dr. Burkes positively identified the body as that of [the victim].” Thus, it appears that Butts did not testify to an independent opinion on either point, but rather simply recounted opinions formed by the non-testifying experts.

If Butts had testified to his own opinion as to cause of death and identity, based on materials reasonably relied upon by experts in the field of forensic pathology, the case could have come out differently. As noted in the paper cited above, pre-Melendez-Diaz cases in North Carolina and in the vast majority of jurisdictions held that in this context the underlying report is not being admitted for the truth of the matter asserted. Rather, it is admitted as a basis of the testifying expert’s opinion. The courts reasoned that since the evidence is not hearsay, it is not covered by the Crawford rule. After all, Crawford itself recognized that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59 n.9. Furthermore, the expert is on the stand and may be cross-examined about the basis of his or her opinion. Of course, Melendez-Diaz does not address this issue. In light of that, it would seem somewhat surprising for the North Carolina Supreme Court to overrule the pre-Melendez-Diaz law on point in a mere two paragraphs of analysis, without mentioning the issue.

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Retroactivity of Melendez-Diaz

Monday, July 20th, 2009

by School of Government faculty member Jessica Smith

Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), decided by the United States Supreme Court last month, already has had significant implications for criminal prosecutions in North Carolina. The original wave of questions posed to me about the case pertained to its application in pending prosecutions. I wrote about Melendez-Diaz generally and addressed a number of those questions in an earlier paper posted here. A significant part of the second wave of questions posed to me has pertained to application of Melendez-Diaz in post-conviction proceedings, including motions for appropriate relief and federal habeas petitions. Specifically, a number of people have asked about whether Melendez-Diaz applies retroactively to cases that became final before it was decided. I will begin to address that question in this post.

I wrote about retroactivity of judge-made rules five years ago in a paper posted here. That paper sets out the general retroactivity rules and I won’t repeat all of them in this post. However, if you need a primer on retroactivity, that is a good place to start. Since that paper was published, the United States Supreme Court has held that Crawford is not retroactive under the rule of Teague v. Lane, 489 U.S. 288 (1989). See Whorton v. Bockting, 549 U.S. 406 (2007) (Crawford was a new procedural rule but not a watershed rule of criminal procedure). The Teague anti-retroactivity rule applies to new rules of federal criminal procedure. One of the arguments being asserted by defense lawyers is that Melendez-Diaz is not a new rule but rather was mandated by Crawford v. Washington, 541 U.S. 36 (2004). If that is correct, Melendez-Diaz would apply retroactively at least back to the date Crawford was decided, March 8, 2004. See Whorton, 549 U.S. at 416 (old rules apply retroactively).

The United States Supreme Court’s retroactivity analysis requires that, in order to determine whether a rule is new, the court must first determine the date on which the case became final. It then must “assay the legal landscape” at the time the conviction became final and ask whether the rule later announced was “dictated by then-existing precedent-whether, that is, the unlawfulness of [defendant's] conviction was apparent to all reasonable jurists.” Beard v. Banks, 542 U.S. 406, 413 (2004) (quotation omitted); see also Graham v. Collins, 506 U.S. 461, 467 (1993) (new rule not “dictated” by precedent) (quoting Teague, 489 U.S. at 301). It is not enough that earlier cases support the new rule. See Beard, 542 U.S. at 410. The question is “whether reasonable jurists could differ as to whether precedent compels the sought-for rule.” Id. at 416 n.5; see also Graham, 506 U.S. at 467 (”compelled by existing precedent”). Obviously, “precedent” includes decisions of the United States Supreme Court. But it also includes decisions of the lower courts, both state and federal. See Caspari v. Bohlen, 510 U.S. 383, 395 (1994) (”in the Teague analysis, the reasonable views of state courts are entitled to consideration along with those of the federal courts”); O’Dell v. Netherland, 521 U.S. 151, 166 n.3 (1997) (noting that conclusion that rule is new finds support in the decisions of the state and lower federal courts). And finally, when the rule at issue emerged in a prior case, a lack of unanimity of the deciding Justices is relevant. See O’Dell, 521 U.S. at 159-60 (the “array of views expressed in [the opinion] itself suggests that the rule announced there was, in light of the Court’s precedent, susceptible to debate among reasonable minds”) (quotation omitted). But see Beard, 542 U.S. 416 n.5 (noting that because the focus is on reasonable jurists, the “mere existence of a dissent” does not suffice to show that the rule is new).

When a case explicitly overrules an earlier holding, it clearly creates a new rule. See Saffle v. Parks, 494 U.S. 484, 488 (1990); Butler v. McKellar, 494 U.S. 407, 412 (1990); Graham, 506 U.S. at 467. The inquiry is more difficult when the decision extends the reasoning of prior cases. See Saffle, 494 U.S. at 488; Butler, 494 U.S. at 412-13; Graham, 506 U.S. at 467. Beard is a relatively recent example of how the analysis plays out in the latter context. At issue in Beard was whether the rules announced in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), applied retroactively. Those cases invalidated capital sentencing schemes that required juries to disregard mitigating factors not found unanimously by the jury. The Beard Court noted that Mills and McKoy relied on a line of cases holding that the sentencer in a capital case must be allowed to consider any mitigating evidence. The Beard Court concluded that although this line of cases supported the Court’s rulings in Mills and McKoy, it did not mandate their holdings. The Court found that the earlier cases considered only obstructions to the sentencer’s ability to consider mitigating evidence whereas Mills focused on individual jurors. The Court thought it “clear” that reasonable jurists could have differed as to whether the [earlier cases] “compelled” Mills. In fact, it noted that in Mills itself, four justices dissented, arguing that the rule from the prior case law did not control. Likewise, three Justices dissented in McKoy, asserting that the prior cases did not mandate the holding. In the end, the Court concluded: “Given the brand new attention Mills paid to individual jurors . . . we must conclude that the Mills rule br[o]k[e] new ground.”

The strongest support for the defense argument that Melendez-Diaz is not a new rule is found in the opinion itself. Writing for the majority, Justice Scalia described the case as a “straightforward application of . . . Crawford,” Slip Op. at 6, involving “little more” than an application of the holding of that case. Id. at 23. Thus, the defense could argue, since Melendez-Diaz was mandated by Crawford, it is not a new rule for cases that became final after Crawford was decided and the Teague anti-retroactivity rule does not apply. In making this argument, the defense might focus on the fact that Melendez-Diaz involved application of the general Crawford rule to a specific situation, as opposed to a modification of the Crawford rule. To amplify this position, the defense might assert that both cases involved precisely the same issue: whether the evidence was testimonial; the only difference between the cases was the type of evidence at issue.

A prosecutor might respond by arguing that Scalia did not make these statements in the context of retroactivity analysis. Also, the prosecution might argue that given the state of North Carolina law (and the law around the country) after Crawford and before Melendez-Diaz, it would be difficult to say that the testimonial nature of forensic laboratory reports was apparent to “all reasonable jurists.” After all, both the North Carolina Court of Appeals and the North Carolina Supreme Court had concluded (more than once) that such items were non-testimonial. Additionally, the decision in Melendez-Diaz was a fractured 5-to-4 decision, indicating that reasonable jurists on the Supreme Court disagreed with its very holding. While Crawford overruled prior precedent (Ohio v. Roberts), the same cannot be said of Melendez-Diaz. However, it can be argued that Melendez-Diaz is an extension of Crawford. Crawford dealt with the testimonial nature of statements by a suspect to the police at a station house after Miranda warnings had been given. Melendez-Diaz by contrast dealt with the testimonial nature of forensic laboratory reports. Thus the argument goes: Melendez-Diaz was not dictated by Crawford; rather, it required an extension of the Crawford rule and thus is a new rule.

Ultimately, the appellate courts will resolve this issue. In the meantime, I hope that this post helps to clarify the relevant law and some of the arguments that might be asserted on both sides. And finally, litigation over the retroactivity of Melendez-Diaz has not been confined to the new rule prong of the Teague test. Another issue that has arisen is whether the Teague test applies in North Carolina state courts in light of Danforth v. Minnesota, 128 S. Ct. 1029 (2008) (holding that Teague does not limit the authority of states to give broader effect to new rules of criminal procedure in state post-conviction proceedings than is required by the Teague rule). I will address that issue in a separate post.

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Melendez-Diaz: Crawford Applies to Lab Reports

Friday, June 26th, 2009

In yesterday’s frivolous post, I said that legal news was slow. Not anymore! The United States Supreme Court decided Melendez-Diaz v. Massachusetts yesterday. It’s a big Confrontation Clause case, and I expect that Jessica Smith, the Crawford expert on our faculty, will eventually weigh in with an expert analysis. But since Jessie’s still busy administering the Superior Court Judges’ conference, here are my preliminary thoughts.

First, the basics of the case. Mr. Melendez-Diaz was arrested in Massachusetts after an apparent drug sale, was found to be in possession of 19 bags of white powder, and was charged with trafficking in cocaine. The white powder was submitted for forensic analysis, and an analyst determined that it was cocaine. The analyst completed a report to that effect and the state introduced the report at trial, over the defendant’s Confrontation Clause objection, without having the analyst present. The defendant was convicted. He appealed, the state appellate courts affirmed, and the Supreme Court reversed 5-4, with Justice Scalia heading an odd coalition of Justices and writing the Opinion of the Court. 

The Court held that the report was prepared for the purpose of use at trial, and was therefore “testimonial” under Crawford. It rejected various arguments raised by the state in an effort to distinguish Crawford. For example, the state argued that lab reports are like business records, but the Court observed that business records are not prepared for the purpose of use at trial. The state argued that an analyst’s opinion was unlikely to change once “confronted” with the defendant, but the Court both disputed the premise — discussing at length the prevalence of dishonest or incompetent analysts — and found the likely effectiveness of confrontation irrelevant to the constitutional requirement thereof.

Of particular importance, the Court rejected the state’s argument that the Confrontation Clause was satisfied because the defendant could have subpoenaed the analyst, concluding that the burden is “on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court.” However, it embraced the notion that the defendant could be required to “assert (or forfeit by silence) his Confrontation Clause right after receiving notice of the prosecution’s intent to use a forensic analyst’s report.” Such “notice-and-demand” statutes, the Court said, are simply “procedural rules” that specify when a defendant must assert his Confrontation Clause rights.

So, how does this apply to North Carolina? First, it appears that the provision in G.S. 90-95(g) allowing lab reports to be admitted in drug cases if the state notifies the defendant of its intent to introduce a report and the defendant fails to object survives Melendez-Diaz. It seems to fit within the Court’s analysis of notice-and-demand statutes. Second, the rationale of State v. Forte, 360 N.C. 427 (2006), which held, in part, that the results of serological testing conducted by an SBI agent were nontestimonial business records, has been undermined by Melendez-Diaz. Thus, to admit a report of such testing — or similar testing, such as DNA analysis — without a stipulation by the defendant as to admissibility, the state will need to call the relevant analyst. Third, who is the “relevant analyst”? In other words, what if Analyst A does the testing but is on vacation at the time of trial, so Analyst B testifies? Nothing in Melendez-Diaz addresses this situation directly. My guess — and I’ll defer to Jessie’s opinion, if it differs from mine — is that such a procedure is OK, at least if Analyst B offers an opinion and Analyst A’s report is admitted only as a basis for that opinion, rather than for the truth of the matter asserted. In that scenario, Analyst A’s report isn’t testimonial and so the defendant’s inability cross-examine Analyst A is immaterial. Fourth, what impact will Melendez-Diaz have in DWI cases? My very tentative thoughts are as follows. As to blood and urine tests, G.S. 20-139.1(c1) says that these analyses are admissible in district court, period, and are admissible in superior court if the defendant doesn’t object at least five days before trial. After Melendez-Diaz, I don’t think they’re admissible in district court without the analyst being present, but I suspect that the superior court provision will be held to fit in the notice-and-demand category and so will survive. (I’m less sure about the survival of this statute than I am about the drug statute, which more clearly puts the burden on the state to provide notice.) As to breath tests, which are presently admissible without the Intoxilyzer operator being present under G.S. 20-139.1(a) and State v. Heinricy, 183 N.C. App. 585 (2007), I suspect that they may be admitted now only if the machine operator is present — or, of course, if the defendant stipulates to their admissibility.

I can’t emphasize enough that all of these thoughts are preliminary. I’m still digesting the case and thinking about its North Carolina ramifications. If you disagree with my analysis, post a comment. If you convince me that I’m wrong, I’ll say so. And I’ll post further thoughts, news, and ideas here as they arise.

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