State v. Julie L. Michaels (072106)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the

interest of brevity, portions of any opinion may not have been summarized.)

State v. Julie L. Michaels (A-69-12) (072106)

[NOTE: This is a companion case to State v. Reginald Roach, also filed today.]

Argued March 4, 2014 -- Decided August 6, 2014

LaVECCHIA, J., writing for a majority of the Court.

This appeal requires the Court to address whether defendant’s confrontation rights were violated by the

admission of a forensic report analyzing defendant’s blood sample, where the report was admitted into evidence

through the testimony of the report’s author -- a laboratory supervisor and qualified expert who had reviewed and

certified the test results -- without the testimony of the various individuals who had performed tasks associated with

the testing procedures.

On March 3, 2008, defendant caused a collision when her vehicle crossed the center line and struck an

oncoming car. The car’s driver and passenger were severely injured, and the passenger later died from his injuries.

Officers observing defendant at the scene of the collision and at the hospital suspected that she was under the

influence of drugs or alcohol. Defendant gave permission for blood samples to be taken but would not sign the

consent form. Defendant later admitted that she had used Xanax and cocaine on the night of the accident.

Defendant’s blood sample was sent by the local police department to NMS Labs, a private laboratory that

performs analytical testing for a number of private and public entities. Fourteen NMS analysts were involved in

various aspects of handling and performing gas chromatography/mass spectrometry testing on defendant’s blood

sample. The testing indicated that defendant’s blood sample contained cocaine, cocaine derivatives, and alprazolam,

an active ingredient in Xanax.

The testing of defendant’s blood sample produced approximately 950 pages of data, which was provided to

Dr. Barbieri, a forensic toxicologist and pharmacologist who also held the titles of Assistant Laboratory Director and

Toxicology Technical Leader at NMS Labs. Dr. Barbieri reviewed all of the data and then wrote, certified and

signed a report, concluding that defendant’s blood contained cocaine and alprazolam in such quantities that she

would have been impaired and unfit to operate a motor vehicle at the time the sample was collected.

Defendant was indicted on multiple charges including second-degree vehicular homicide while intoxicated

and third-degree assault by auto while intoxicated. At defendant’s trial, Dr. Barbieri testified about the general

processes used by NMS to analyze blood samples, the specific tests performed on defendant’s blood, and the results

of those tests. Dr. Barbieri acknowledged that there is a “human element” to the testing procedures and that he had

not conducted the tests himself. However, he stated that he had reviewed the voluminous machine-generated data

and was satisfied that the testing had been done properly and that his independent review permitted him to certify

the results. Dr. Barbieri opined that, at the time of the collision, defendant was impaired by the quantity of

alprazolam and cocaine found in her system, and that she would have been unable to drive safely.

Defendant objected to the admission of Dr. Barbieri’s report as hearsay, and the trial court found the report

admissible. At the close of the State’s case, defendant moved to strike Dr. Barbieri’s testimony, contending that the

State was required to present testimony from the persons who actually conducted the blood sample testing. The trial

court denied the motion, noting that as the lab supervisor, Dr. Barbieri could testify about the procedures that were

employed and give an opinion, based on his expertise, as to what conclusions should be drawn from that testing.

The jury found defendant guilty on all counts. Defendant moved for a new trial, raising, among other

arguments, a Sixth Amendment Confrontation Clause objection to Dr. Barbieri’s testimony. The court denied the

motion and sentenced defendant to an aggregate extended term of eighteen years’ imprisonment with twelve years

1

and two months of parole ineligibility. Defendant appealed her convictions and sentence, casting her arguments

regarding Dr. Barbieri’s testimony as a violation of the Confrontation Clause. The Appellate Division affirmed, and

this Court granted defendant’s petition for certification limited to the confrontation issue. 214 N.J. 114 (2013).

HELD: Defendant’s confrontation rights were not violated by the admission of Dr. Barbieri’s report or his

testimony regarding the blood tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the

testing process, independently verified the correctness of the machine-tested processes and results, and formed an

independent conclusion about the results. Defendant’s opportunity to cross-examine Dr. Barbieri satisfied her right

to confrontation on the forensic evidence presented against her.

1. The Sixth Amendment to the United States Constitution provides in part that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme

Court’s current line of cases on Confrontation Clause jurisprudence begins with Crawford v. Washington, 541 U.S.

36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which held that an accused’s right to confront witnesses applies to all

out-of-court statements that are “testimonial.” Under Crawford, such statements are inadmissible unless the witness

is unavailable to testify and the defendant had a prior opportunity for cross-examination. (pp. 16-20)

2. Since 2004, the United States Supreme Court has considered Crawford’s application in three cases involving

forensic reports—Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009);

Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); and Williams v. Illinois, 567

U.S. __, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2011). In Melendez-Diaz, supra, the Supreme Court reversed a

defendant’s conviction where the prosecution failed to produce any analyst to support and be cross-examined

regarding the statements contained in a forensic document. In a five-to-four decision, the Court held that laboratory

certificates setting forth the results of analysis of drug samples were testimonial statements and therefore were

inadmissible. 557 U.S. at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322. (pp. 21-24)

3. In Bullcoming, another five-to-four decision, the Supreme Court considered “whether the Confrontation Clause

permits the prosecution to introduce a forensic laboratory report containing a testimonial certification – made for the

purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification

or perform or observe the test reported in the certification.” Bullcoming, supra, 564 U.S. at __, 131 S. Ct. at 2710,

180 L. Ed. 2d at 615-16. The Court held that the forensic report was inadmissible, reasoning that the testimony of a

substitute analyst who did not perform or observe the tests and did not certify the results constituted “surrogate

testimony” that violated the defendant’s confrontation rights. Id. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616.

Justice Sotomayor wrote a separate concurring opinion that emphasized the limited nature of the Court’s holding by

noting, among other points, that Melendez-Diaz did not stand for the proposition that every person identified as

performing some task in connection with a forensic report must be called as a witness. Id. at __, 131 S. Ct. at 2722,

180 L. Ed. 2d at 628-230 (Sotomayor, J., concurring). (pp. 24-32)

4. Most recently, in Williams, a plurality of the Court found that a defendant’s right of confrontation was not

violated by the testimony of an individual who matched a DNA profile produced by a private laboratory to the

defendant’s DNA. Williams, 567 U.S. at __, 132 S. Ct. at 2227, 183 L. Ed. 2d at 98. Notably, the plurality’s

analysis was criticized by a majority of the Court, including four dissenting members, id. at __, 132 S. Ct. at 2265,

183 L. Ed. 2d at 139 (Kagan, J., dissenting), and Justice Thomas, who joined in the plurality’s judgment, but

disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring in the

judgment). Because each of the Williams opinions embraces a different approach to determining whether the use of

forensic evidence violates the Confrontation Clause, and because a majority of the Supreme Court expressly

disagreed with the rationale of the plurality, there is no narrow rule that this Court can discern from Williams and

thus Williams’s force, as precedent, is at best unclear. The Court thus turns to the pre-Williams cases for more

reliable guidance on confrontation rights. (pp. 32-43)

5. Applying pre-Williams jurisprudence, the Court observes that neither Melendez-Diaz nor Bullcoming requires

that every analyst involved in a testing process must testify in order to admit a forensic report into evidence and

satisfy confrontation rights. Nor do the cases suggest that the primary analyst involved in the original testing must

testify when a different, sufficiently knowledgeable expert is available to testify. Moreover, the Court notes that it

would take confrontation law to a level that is not only impractical, but, equally importantly, is inconsistent with

prior law addressing the admissibility of an expert’s testimony in respect of the substance of underlying information

2

that he or she used in forming his or her opinion. By way of background, the Court notes that, in determining when

the facts underlying a forensic expert opinion may be disclosed to the jury, New Jersey’s evidence case law has

focused on whether the witness is knowledgeable about the particular information used in forming the opinion to

which he or she is testifying and has a means to verify the underlying information even if he or she was not the

primary creator of the data. Such law is consistent with the principle that a knowledgeable expert who is someone

other than the primary analyst who conducted a forensic test may testify to an opinion regarding testing results,

when those results have been generated by demonstrably calibrated instruments. (pp. 43-48)

6. The Court then examines defendant’s argument that her confrontation rights were violated by Dr. Barbieri’s

testimony and the admission of his certified report. Unlike in Melendez-Diaz, where no witness was offered to

testify to the statements contained in the forensic document that was admitted into evidence, here the report was

admitted through the live testimony of Dr. Barbieri, the person who prepared, signed, and certified the report, and

Dr. Barbieri was available for cross-examination. In addition, the forensic report that the Supreme Court rejected in

Bullcoming had been admitted through the testimony of a co-analyst or “surrogate” who did not serve as supervisor

or reviewer responsible for certifying the results. Here, the Court accepts that Dr. Barbieri’s report was testimonial.

However, Dr. Barbieri supervised the analysts who performed the tests, was qualified as an expert in the relevant

subject areas, analyzed the machine-generated data, and produced and certified the testimonial report in issue. As

the reviewer of the testing process and the author of the report, it was proper for Dr. Barbieri to testify to its contents

and to answer questions about the testing it reported. (pp. 49-62).

7. In response to the dissenting opinion, the Court explains that Dr. Barbieri was not merely repeating the findings

and conclusions of the analysts who conducted the testing. Rather, the findings and conclusions contained in the

report and to which he testified were his own. A truly independent reviewer or supervisor of testing results can

testify to those results and to his or her conclusions about those results, without violating a defendant’s confrontation

rights, if the testifying witness is knowledgeable about the testing process, has independently verified the correctness

of the machine-tested process and results, and has formed an independent conclusion about the results. Testimonial

facts can “belong” to more than one person if the verification and truly independent review described above are

performed and set forth on the record by the testifying witness. (pp. 62-69).

The judgment of the Appellate Division is AFFIRMED.

JUSTICE ALBIN, DISSENTING, expresses the view that the Sixth Amendment’s Confrontation Clause

bars the admission of this forensic report and the testimony of the expert because the State did not produce for cross-

examination the analyst(s) who actually performed the test on defendant’s blood.

CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES

RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE

ALBIN filed a separate, dissenting opinion.

3

SUPREME COURT OF NEW JERSEY

A-69 September Term 2012

072106

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIE L. MICHAELS a/k/a LYNN

MICHAELS, JULIE LYNN, JOLINE

BROOKS, JODIE L. CALLOWAY,

JODIE CALLAWAY,

Defendant-Appellant.

Argued March 4, 2014 – Decided August 6, 2014

On certification to the Superior Court,

Appellate Division.

Gary A. Kraemer argued the cause for

appellant (Daggett, Kraemer & Gjelsvik,

attorneys; Mr. Kraemer and George T.

Daggett, on the briefs).

Frank Muroski, Deputy Attorney General,

argued the cause for respondent (John J.

Hoffman, Acting Attorney General of New

Jersey, attorney; Kenneth A. Burden and

Frank J. Ducoat, Deputies Attorney General,

of counsel; Mr. Muroski, Mr. Burden, and Mr.

Ducoat, on the briefs).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Defendant Julie Michaels was charged with second-degree

vehicular homicide, third-degree assault by auto, and four other

related charges, as well as motor vehicle citations, including

driving while intoxicated, reckless driving, possession of a

1

controlled dangerous substance in a motor vehicle, and

possession of an open container of alcohol. Laboratory results

of gas chromatography/mass spectrometry tests performed on

defendant’s blood sample, which was drawn at a hospital the

evening of her motor vehicle accident, revealed the presence of

cocaine, alprazolam (an active ingredient of Xanax), and

benzoethylene (a cocaine metabolite).

At trial, the State introduced testimony from Edward

Barbieri, Ph.D., an assistant supervisor and toxicology

technical leader from the private laboratory that had performed

the testing on defendant’s blood sample and issued a report

certifying the test results. Dr. Barbieri was responsible for

supervising the technicians and analysts who were involved in

the gas chromatography/mass spectrometry testing. He also was

responsible for their adherence to the laboratory’s policies and

protocols for the testing procedures. He had reviewed the test

results and satisfied himself that the test data accurately

identified and quantified the substances found in defendant’s

blood, and he had signed and certified the laboratory results

set forth in the report. Over defendant’s objection, the report

was admitted into evidence without the testimony of the fourteen

individuals who had performed various tasks associated with the

testing procedures. A jury convicted defendant on all counts,

and the Appellate Division affirmed defendant’s conviction.

2

We granted certification in this matter to consider

defendant’s argument that her Sixth Amendment confrontation

rights were violated because the laboratory report was admitted,

although defendant had not had the opportunity to confront each

laboratory employee who participated in the testing that

generated the results contained in the report. We now hold that

the admission of the laboratory report did not violate

defendant’s confrontation rights. The laboratory supervisor --

who testified and was available for cross-examination -- was

knowledgeable about the testing process that he was responsible

for supervising. He had reviewed the machine-generated data

from the testing, had determined that the results demonstrated

that defendant had certain drugs present in her system, and had

certified the results in a report that he had prepared and

signed.

We recognize that the forensic report in issue is

“testimonial” and that it is the type of document subject to the

Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S.

__, __, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610, 624 (2011)

(determining that signed and certified laboratory report was

formalized sufficiently to be characterized as testimonial); cf.

State v. Sweet, 195 N.J. 357, 373-74 (2008) (noting testimonial

nature of signed and certified New Jersey State Laboratory

certificates prepared for use in State prosecution), cert.

3

denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).

However, in this matter we join the many courts that have

concluded that a defendant’s confrontation rights are not

violated if a forensic report is admitted at trial and only the

supervisor/reviewer testifies and is available for cross-

examination, when the supervisor is knowledgeable about the

testing process, reviews scientific testing data produced,

concludes that the data indicates the presence of drugs, and

prepares, certifies, and signs a report setting forth the

results of the testing. In examining the testimony and

documentary evidence challenged in this matter, we do not find

it to be equivalent to the “surrogate testimony” that the United

States Supreme Court found problematic in Bullcoming, supra, 564

U.S. at __, 131 S. Ct. at 2715-16, 180 L. Ed. 2d at 621-22.

Finding no denial of defendant’s confrontation rights in

this proceeding, we affirm defendant’s conviction.

I.

A.

On March 3, 2008, at approximately 10:15 p.m., defendant

caused a two-car collision. Danielo Diaz, the driver of the

second car, was driving northbound on Route 23 in Hardyston

Township. There, Route 23 is a two-lane road with a double

yellow center line and a speed limit of forty-five miles per

hour. Defendant was driving southbound but swerved into the

4

northbound lane as she reached the crest of a hill. Diaz

testified that he saw headlights approaching on his side of the

road, but had no time to react before defendant’s vehicle struck

his vehicle head-on.

Sergeant John Broderick, the police officer responding to

the scene, found defendant’s car straddling the yellow line

facing southbound. Diaz’s car was situated perpendicular to

defendant’s. Diaz and his passenger, Dylan Vecchiarelli,

appeared to be injured and in pain. Defendant, who was slumped

in her seat, answered Broderick’s questions in a slurred voice.

Her eyes were partly closed. When she exited her vehicle, she

did not seem to be in pain although her ankle appeared to

Broderick to be broken. Defendant seemed to Broderick to be

under the influence of drugs or alcohol.

Defendant was taken by ambulance to St. Clare’s Hospital in

Sussex County where she was met by Detective Karl Ludwig, who

had been dispatched to obtain a blood sample from her. Although

defendant initially informed Ludwig that she was Jodie Callaway

of Moscow, Iowa, it was later determined that she was Julie

Michaels of Wayne, New Jersey, and that Jodie Callaway was her

sister. When asked what had happened, defendant told Ludwig

that she had been on the wrong side of the road and hit a car.

Ludwig noted that defendant’s eyes were red and droopy, her

speech was slurred, and she was lethargic. Defendant gave

5

permission for blood samples to be taken but would not sign the

consent form. She informed Ludwig that she had not used any

alcohol that night, but had taken prescription Xanax at 3:00

p.m. She also stated that her blood would test positive for

cocaine because she had used it four days earlier. Defendant

later altered her statement, telling Ludwig that, on the night

of the accident, she had taken Xanax that belonged to her sister

and had used cocaine.

Meanwhile, Diaz and Vecchiarelli were transported by

helicopter from the scene of the accident to a trauma hospital.

Diaz remained in the hospital for about a month for injuries

that included a fractured cheekbone and nose, a broken femur

with an open wound, and bruised lungs. Vecchiarelli’s injuries

included multiple fractures of the skull, a spinal cord

fracture, a partial rupture of the thoracic aorta, lacerations

of the spleen, and a broken femur. Despite weeks of intensive

treatment for his serious injuries, Vecchiarelli’s condition

deteriorated. He died from his injuries on April 2, 2008.

Defendant’s blood sample was sent by the Hardyston Police

Department to NMS Labs, a private laboratory in Willow Grove,

Pennsylvania, that performs analytical testing for a number of

private and public entities. NMS was instructed to test the

sample for the presence of alcohol and drugs, and to determine

the quantities of any substances found. Tests were performed by

6

approximately fourteen NMS analysts.1 Specifically, small

samples, or aliquots, drawn from the original sample were

screened for alcohol and a broad range of drugs. Computer

analysis of the results of the screening tests indicated

presumptive positives for cocaine metabolites, benzodiazepines,

and marijuana products. New aliquots from the blood sample were

analyzed using a combined gas chromatography/mass spectrometry

machine.2 That testing showed that defendant’s blood sample

contained cocaine, benzoethylene (a cocaine metabolite), and

alprazolam (a type of benzodiazepine that is the active

ingredient in Xanax). Defendant’s blood tested negative for

1

Fourteen NMS employees were involved in various aspects of

handling and testing defendant’s blood sample. We refer to

these various analysts and technicians collectively as

“analysts” throughout the opinion for simplicity and because the

evidence does not detail the specific role played by each

individual.

2

As was explained at trial by the State’s expert and author of

the report on defendant’s blood testing, to perform this

testing, an analyst injects an aliquot of the blood to be tested

into the gas chromatography/mass spectrometry machine. In the

gas chromatography portion of the test, the sample is vaporized

and passes through a thin 100-foot-long tube that separates the

different compounds in the sample. The machine records the

amount of time the compounds take to pass through the tube.

When the compounds emerge from the gas chromatograph, they are

ionized by the mass spectrometer, which records the molecular

weights of the fractions generated. The machine produces graphs

that identify and quantify the compounds in the sample by

comparing the time they take to pass through the tube against

the results for the calibration and control materials, and

comparing the compounds’ molecular weights to the molecular

weights of a “library” of known compounds. The data is compared

to runs performed with calibration and control materials to

ensure the accurate operation of the machine.

7

marijuana.

The testing of defendant’s blood sample produced

approximately 950 pages of data, which was provided to Dr.

Barbieri, a forensic toxicologist and pharmacologist who held

three titles at NMS: Forensic Toxicologist, Toxicology

Technical Leader, and Assistant Laboratory Director. Dr.

Barbieri reviewed all the data in order to satisfy himself that

(1) the testing had been done according to standard operating

procedures, and (2) the results were correct. Dr. Barbieri

wrote, and then certified and signed, a report stating that

defendant’s blood contained 270 ng/mL of alprazalam, 140 ng/mL

of cocaine, and 2500 ng/mL of benzoethylene. Dr. Barbieri’s

report concluded that the presence of those quantities of drugs

in defendant’s blood would have caused her to be impaired and

unfit to operate a motor vehicle at the time the blood sample

was collected.

B.

In October 2008, defendant was indicted on charges of

second-degree vehicular homicide while intoxicated, N.J.S.A.

39:4-50, N.J.S.A. 2C:11-5 (count one); third-degree assault by

auto while intoxicated, N.J.S.A. 39:4-50, N.J.S.A. 2C:12-1(c)(2)

(count two); third-degree causing death while driving unlicensed

or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A. 2C:40-

22(a) (count three); fourth-degree causing serious bodily injury

8

while driving unlicensed or with a suspended license, N.J.S.A.

39:3-40, N.J.S.A. 2C:40-22(a) (count four); third-degree giving

false information to a law enforcement officer, N.J.S.A. 2C:29-

3(b)(4) (count five); and third-degree possession of a

controlled dangerous substance, N.J.S.A. 2C:35-10(a) (count

six). Defendant also previously had been issued six motor

vehicle citations in connection with the collision.3

Defendant’s in limine motions to dismiss the indictment

were denied. The case was tried over fourteen days in February

and March 2011. The State presented testimony from Diaz, two

other drivers who had observed the collision and defendant’s

driving, several police officers including Broderick and Ludwig,

the doctor who had treated Vecchiarelli prior to his death, the

supervising nurse who had treated defendant upon her arrival at

the hospital and who had drawn the blood sample, and Dr.

Barbieri of NMS.4 Defendant presented two witnesses but did not

testify on her own behalf.

Dr. Barbieri testified about the general processes used by

3

The citations received by defendant were driving while

intoxicated, N.J.S.A. 39:4-50; driving with a revoked license,

N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; failure to

keep right, N.J.S.A. 39:4-82; possession of a controlled

dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1; and

possession of an open container of alcohol, N.J.S.A. 39:4-51b.

4

Dr. Barbieri was recognized by the court, without objection, as

a qualified expert in the fields of forensic toxicology and

pharmacology.

9

NMS to analyze blood samples, the specific tests performed on

defendant’s blood, and the results of those tests. Dr. Barbieri

acknowledged that there is a “human element” to the testing

procedures and that he had not conducted the tests himself.

However, he stated that he personally had reviewed the

voluminous machine-generated data and was satisfied that the

testing had been done properly and that his independent review

permitted him to certify the results. Dr. Barbieri opined that,

at the time of the collision, defendant’s concentration,

judgment, response time, coordination, and sense of caution

would have been impaired by the quantity of alprazalam and

cocaine found in her system, and that she would have been unable

to drive safely.

Defendant objected to the admission of Dr. Barbieri’s

report as hearsay; however, the trial court determined that no

applicable law compelled its exclusion. At the close of the

State’s case, defendant moved to strike Dr. Barbieri’s

testimony, contending that the State was required to present

testimony from the persons who actually conducted the testing

and that Dr. Barbieri did not personally perform, or assist in

performing, the tests that formed the basis of his report and

testimony. The trial court denied the motion to strike Dr.

Barbieri’s testimony, specifically noting that, “as the

supervisor of the lab, certainly he’s in a position to testify

10

about the procedures that were employed and give an opinion,

based on his expertise, what conclusions should flow from that

testing.” The trial court also denied a motion for a judgment

of acquittal on counts one and three on the ground that there

was insufficient proof of Vecchiarelli’s cause of death.

The jury found defendant guilty on all counts. The court

denied defendant’s motion for a new trial, which raised, among

other arguments, a Sixth Amendment Confrontation Clause

objection to the testimony by Dr. Barbieri. The court sentenced

defendant to an aggregate extended term of eighteen years’

imprisonment with twelve years and two months of parole

ineligibility, and life-time suspension of driving privileges.

Defendant appealed on the grounds that the trial court

should have excluded testimony by Dr. Barbieri and by

Vecchiarelli’s physician, as well as certain inculpatory

statements by defendant. She also argued that her sentence was

excessive. The Appellate Division affirmed the conviction and

sentence in an unpublished opinion.

Addressing the argument that Dr. Barbieri’s testimony

violated defendant’s confrontation rights, the Appellate

Division reviewed recent Confrontation Clause cases from the

United States Supreme Court, as well as its own published

opinion in State v. Rehmann, 419 N.J. Super. 451 (App. Div.

2011). The panel held that Dr. Barbieri’s testimony did not

11

violate defendant’s confrontation rights because Dr. Barbieri,

who was trained to perform the tests, made an independent

assessment of data collected by the analysts he supervised,

testified about the process by which samples are tested and the

tests performed on defendant’s blood, and explained the test

results. The panel noted that no questions about testing

procedures or results were asked on cross-examination that Dr.

Barbieri was not able to answer fully, and concluded that

defendant was not denied a meaningful opportunity for cross-

examination merely because Dr. Barbieri personally had not

performed the tests. In addition, the panel noted that, under

N.J.R.E. 703, Dr. Barbieri, who was properly qualified as an

expert, could rely on inadmissible hearsay evidence in forming

his independent opinion. The panel concluded that the trial

court’s other rulings were correct and that defendant’s sentence

was not excessive.

We granted defendant’s petition for certification, “limited

to the issue of whether defendant’s right of confrontation was

violated by the admission of the expert testimony and report

regarding the results of the laboratory analysis of defendant’s

blood samples.” State v. Michaels, 214 N.J. 114, 114 (2013).

II.

A.

Defendant argues that the admission of Dr. Barbieri’s

12

report and testimony violated the Confrontation Clause because

Dr. Barbieri was not the person who performed the tests

conducted on her blood sample. She asserts that the test

results, data, and charts contained in the report are

testimonial because the testing was done to produce evidence for

trial, as shown by the fact that the report was sent to the

Sussex County Prosecutor’s Office and references “State v. Julie

Michaels” as its subject matter. Based on the United States

Supreme Court’s decision in Bullcoming, defendant argues that

the analysts who performed the tests should have been subject to

cross-examination because there was a possibility of human error

in the testing and their duties involved more than simply

transcribing machine-produced data. In particular, defendant

notes that, although Dr. Barbieri certified in his report that

the samples and seals had maintained their integrity, only the

analysts who worked with the samples could have ensured that

that was the case.

Defendant emphasizes that, unlike the supervisor in

Rehmann, supra, 419 N.J. Super. at 457-59, whose testimony about

test results the Appellate Division held was permissible, Dr.

Barbieri was not closely and directly involved with the testing

on which he based his report. Defendant also asserts that the

State improperly failed to notify her before trial that Dr.

Barbieri was not the person who performed the tests, thus

13

depriving her of her right to depose the person who performed

the tests used against her if that person was not going to be

available to testify at trial.

In response to the State’s argument that defendant waived

her Confrontation Clause argument by failing to raise the issue

before or during trial, defendant asserts that she preserved her

confrontation claim by objecting to the testimony and report at

trial as unreliable hearsay evidence. Defendant also argues

that the “notice and demand” procedure of N.J.S.A. 2C:35-19 does

not justify introduction of Dr. Barbieri’s report because that

statute only applies to State Forensic Laboratories, not to

private laboratories like NMS.

B.

The State first argues that defendant waived her

Confrontation Clause argument by objecting to Dr. Barbieri’s

report only on hearsay grounds at trial. The State asserts that

the raw data provided to defendant during discovery put

defendant on notice that the tests were not conducted by Dr.

Barbieri himself. The State frames defendant’s decision not to

challenge Dr. Barbieri’s testimony on Confrontation Clause

grounds as a strategic decision with which she must live. The

State also asserts that, under N.J.R.E. 703, Dr. Barbieri was

allowed to rely on otherwise inadmissible hearsay statements,

like the raw data in this case, to form the independent opinion

14

expressed in his report and testimony. Therefore, the

underlying data was admissible to establish the basis for his

opinion.

Turning to the merits of defendant’s Confrontation Clause

argument, the State argues that Dr. Barbieri’s testimony did not

violate defendant’s confrontation rights because Dr. Barbieri

was the one who reviewed the raw data, produced the report based

on his professional evaluation of the data, and formally

certified the accuracy of the results. He thus was the author

of the testimonial statements against defendant, and defendant

was given an opportunity to cross-examine him at trial in

respect of those statements. The State also contends that

denying defendant an opportunity to confront the analysts who

conducted the tests did not violate her Confrontation Clause

rights because the data produced by those analysts was not

testimonial. The State argues that the test results were not

testimonial because they were machine generated and were not

formalized, sworn, or certified documents. Further, the State

asserts that the results were not testimonial because the

analysts performing the tests conducted them according to

standard procedures and without any knowledge of the origin of

the samples or the purpose for which the results were being

obtained. The State points out that, although NMS conducts

testing for law enforcement clients, it also conducts testing

15

for clients such as coroners, physicians, and drug treatment

facilities operating outside of the realm of law enforcement.

Finally, the State urges this Court to adopt a “workable

rule,” given the nature of modern laboratory work, where a

number of different individuals may be involved in the

procedures necessary to produce a test result and who may recall

little about any particular test. In arguing for practicality,

the State argues that this Court should examine the evidence

closely and avoid rigidly requiring the testimony of every

laboratory analyst and assistant in any way connected with

whatever testing is involved in a particular forensic laboratory

report.

III.

The Sixth Amendment to the United States Constitution

provides in part that, “[i]n all criminal prosecutions, the

accused shall enjoy the right . . . to be confronted with the

witnesses against him.”5 The Clause is applicable to the States

by virtue of the Fourteenth Amendment. See Pointer v. Texas,

380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926

(1965).

This appeal requires that we address whether admission of a

particular forensic report violates defendant’s confrontation

5

The New Jersey Constitution provides for like protection to an

accused. See N.J. Const. art. I, ¶ 10 (guaranteeing right of

accused “to be confronted with the witnesses against him”).

16

rights where the fourteen analysts who were involved in the

testing utilized in the certified report were not individually

called to testify at trial. The question is made difficult by

the differing analyses used by United States Supreme Court

justices in contemporary Confrontation Clause jurisprudence. We

therefore begin with the Supreme Court’s decisions on the

subject.

A.

Prior to the current turmoil over confrontation rights, the

Supreme Court had held that the Confrontation Clause allowed

admission of an out-of-court statement if the statement fit

“within a firmly rooted hearsay exception” or bore

“particularized guarantees of trustworthiness.” Ohio v.

Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d

597, 608 (1980) (explaining that if statement “bears adequate

indicia of reliability,” Confrontation Clause does not bar

admission of unavailable witness’s statement against criminal

defendant). That understanding was upended twenty-four years

later when the Supreme Court rejected the Roberts reliability

analysis and held that an accused’s right to confront witnesses

applies to all out-of-court statements that are “testimonial.”

Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374,

158 L. Ed. 2d 177, 203 (2004).

In Crawford, Justice Scalia, writing for the Court,

17

examined the confrontation right’s English common law and

statutory roots, and its development in the American colonies

leading to its inclusion in the Federal Constitution, and

concluded that the Confrontation Clause was directed at “the

civil-law mode of criminal procedure, and particularly its use

of ex parte examinations as evidence against the accused.” Id.

at 50, 124 S. Ct. at 1363, 158 L. Ed. 2d at 192. Based on its

historical analysis, the Crawford Court concluded “that the

Framers would not have allowed admission of testimonial

statements of a witness who did not appear at trial unless he

was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.” Id. at 53-54, 124 S. Ct. at

1365, 158 L. Ed. 2d at 194. In other words, “[w]here

testimonial evidence is at issue . . . the Sixth Amendment

demands what the common law required: unavailability and a

prior opportunity for cross-examination.” Id. at 68, 124 S. Ct.

at 1374, 158 L. Ed. 2d at 203.

Although Crawford’s analysis hinged on whether the out-of-

court statement was testimonial, the Court did not define

“testimonial statements.” Ibid. However, the Crawford decision

identified certain “formulations of [the] core class of

‘testimonial’ statements,” such as

ex parte in-court testimony or its

functional equivalent -- that is, material

such as affidavits, custodial examinations,

18

prior testimony that the defendant was

unable to cross-examine, or similar pretrial

statements that declarants would reasonably

expect to be used prosecutorially;

extrajudicial statements . . . contained in

formalized testimonial materials, such as

affidavits, depositions, prior testimony, or

confessions; [and] statements that were made

under circumstances which would lead an

objective witness reasonably to believe that

the statement would be available for use at

a later trial.

[Id. at 51-52, 124 S. Ct. at 1364, 158 L.

Ed. 2d at 193 (first alteration in original)

(citations and internal quotation marks

omitted).]

Importantly, whether a statement is “testimonial” was not pinned

to whether the statement was taken under oath. Id. at 52, 124

S. Ct. at 1364, 158 L. Ed. 2d at 193 (noting that unsworn

“[s]tatements taken by police officers in the course of

interrogations are also testimonial [because those]

interrogations bear a striking resemblance to examinations by

justices of the peace in England”).

A three-part test -- whether the statement was testimonial,

whether the witness was unavailable to testify, and whether

there was a prior opportunity for cross-examination -- thus

became Crawford’s new standard for assessing violations of the

Confrontation Clause. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed.

2d at 203. Justices Stevens, Kennedy, Souter, Thomas, Ginsburg,

and Breyer joined Justice Scalia’s exposition of the new

19

standard, and the earlier Roberts decision was overruled.6 Id.

at 63-69, 124 S. Ct. at 1371-74, 158 L. Ed. 2d 200-03; see also

Davis v. Washington, 547 U.S. 813, 825 n.4, 126 S. Ct. 2266,

2275 n.4, 165 L. Ed. 224, 239 n.4 (2006) (“We overruled Roberts

in Crawford by restoring the unavailability and cross-

examination requirements.”). Applying the standard to the facts

in Crawford, supra, the Court held that a tape-recorded

statement made by the defendant’s wife during police

interrogation was testimonial, and its admission, without

providing the defendant the right to cross-examine her, violated

the Confrontation Clause. 541 U.S. at 38, 69, 124 S. Ct. at

1356-57, 1374, 158 L. Ed. 2d at 184, 203.

B.

Since 2004, the Court has considered Crawford’s application

in three cases involving forensic reports. Those cases are

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,

174 L. Ed. 2d 314 (2009); Bullcoming, supra, 564 U.S. __, 131 S.

Ct. 2705, 180 L. Ed. 2d 610; and Williams v. Illinois, 567 U.S.

__, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2011).

6

Chief Justice Rehnquist and Justice O’Connor concurred in the

judgment but dissented from the majority’s decision to overrule

Roberts. Crawford, supra, 541 U.S. at 69, 124 S. Ct. at 1374,

158 L. Ed. 2d at 203-04 (Rehnquist, C.J., dissenting). The

Chief Justice claimed that the “distinction between testimonial

and nontestimonial statements . . . is no better rooted in

history than [the Roberts] doctrine.” Ibid.

20

1.

In Melendez-Diaz, supra, a cocaine distribution and

trafficking case, a Massachusetts trial court admitted into

evidence three “certificates of analysis” setting forth the

results of forensic analysis performed by the state laboratory.

557 U.S. at 308, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320.

Under state law, the notarized certificates were admissible

without live testimony as “prima facie evidence of the

composition, quality, and the net weight of the narcotic.” Id.

at 309, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. Thus, the

analysts were not produced as witnesses at defendant’s trial;

therefore, the defendant was not afforded the opportunity to

cross-examine the individuals who performed the tests and

certified the results. Ibid. A Massachusetts appellate court

affirmed the conviction, and the Supreme Judicial Court of

Massachusetts denied review. Ibid.

The United States Supreme Court reversed the conviction, in

a five-to-four decision, holding that the laboratory

certificates fell “within the ‘core class of testimonial

statements’” and therefore were inadmissible. Id. at 310, 129

S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford, supra,

541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193).

The majority opinion, authored by Justice Scalia and joined by

Justices Stevens, Souter, and Ginsburg, reaffirmed the Crawford

21

test for testimonial statements and employed that test. Id. at

310-11, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. The Court

determined that the lab reports were “plainly affidavits” that

constituted testimonial statements because they were

“declaration[s] of facts written down and sworn to by the

declarant before an officer authorized to administer oaths”;

“solemn declaration[s] or affirmation[s] made for the purpose of

establishing or proving some fact”; “made under circumstances

which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial”; and

“functionally identical to live, in-court testimony, doing

precisely what a witness does on direct examination.” Ibid.

(first alteration in original) (internal quotation marks

omitted). The Court determined that the analysts constituted

witnesses against the defendant, and held that, absent the

state’s showing that they were unavailable to testify at trial

and that the defendant had prior opportunity to cross-examine

them, the defendant was entitled to “be confronted with the

analysts at trial.” Id. at 311, 129 S. Ct. at 2532, 174 L. Ed.

2d at 322 (internal quotation marks omitted).

Justice Thomas signed on to the majority opinion, but wrote

separately to express his position that “the Confrontation

Clause is implicated by extrajudicial statements only insofar as

they are contained in formalized testimonial materials, such as

22

affidavits, depositions, prior testimony, or confessions.” Id.

at 329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas, J.,

concurring) (internal quotation marks omitted). He thus

continued to adhere to the narrow view of testimonial documents

that he first expressed in his concurrence in White v. Illinois,

502 U.S. 346, 365, 112 S. Ct. 736, 747, 116 L. Ed. 2d 848, 865

(1992) (Thomas, J., concurring).

In a dissent by Justice Kennedy, in which Chief Justice

Roberts and Justices Breyer and Alito joined, those four members

declined to follow the analytic path that the majority opinion

was cutting for confrontation jurisprudence as applied to

forensic documents. Id. at 330, 129 S. Ct. at 2543, 174 L. Ed.

2d at 333 (Kennedy, J., dissenting). The dissent asserted that

the Confrontation Clause was not implicated because laboratory

analysts are not “conventional” witnesses against a defendant,

positing that the majority “swe[pt] away an accepted rule

governing the admission of scientific evidence.” Ibid. Justice

Kennedy wrote, “The immediate systemic concern is that the Court

makes no attempt to acknowledge the real differences between

laboratory analysts who perform scientific tests and other, more

conventional witnesses -- ‘witnesses’ being the word the Framers

used in the Confrontation Clause.” Ibid. In his view,

“[l]aboratory analysts who conduct routine scientific tests are

not the kind of conventional witnesses to whom the Confrontation

23

Clause refers.” Id. at 357, 129 S. Ct. at 2558, 174 L. Ed. 2d

at 350. The dissent characterized the laboratory analysts as

impartial, technical witnesses, not persons adversarial to the

defendant, and concluded that no confrontation violation arose

from admission of the laboratory certificates. Id. at 345-46,

129 S. Ct. at 2251-52, 174 L. Ed. 2d at 342-43.

2.

In 2011, in Bullcoming, supra, another five-to-four

decision, the Supreme Court considered “whether the

Confrontation Clause permits the prosecution to introduce a

forensic laboratory report containing a testimonial

certification -- made for the purpose of proving a particular

fact -- through the in-court testimony of a scientist who did

not sign the certification or perform or observe the test

reported in the certification.” 564 U.S. at __, 131 S. Ct. at

2710, 180 L. Ed. 2d at 615-16. The defendant was arrested and

charged with driving while intoxicated in New Mexico; after

obtaining a sample of the defendant’s blood, police

investigators forwarded the sample to the New Mexico Department

of Health, Scientific Laboratory Division (SLD). Id. at __, 131

S. Ct. at 2709-10, 180 L. Ed. 2d at 616. Analysts at SLD used

gas chromatography machines to identify and quantify blood

alcohol concentration levels. Id. at __, 131 S. Ct. at 2711,

180 L. Ed. 2d at 617. The results of the defendant’s blood

24

alcohol analysis were recorded onto “a standard SLD form titled

‘Report of Blood Alcohol Analysis.’” Id. at __, 131 S. Ct. at

2710, 180 L. Ed. 2d at 616. The form included a section for

identification of the “participants in the testing,” and a

section where “the forensic analyst certified his finding.”

Ibid. In particular, the SLD report contained the following:

information from the police officer (reason for the arrest, and

date/time blood was drawn); the “‘certificate of analyst,’

completed and signed by Curtis Caylor, the SLD forensic analyst

assigned to test [the defendant’s] blood sample,” which included

an affirmation that the “sample was received intact” and proper

procedures were followed; the blood alcohol concentration; and a

certification that the forensic analyst was qualified to conduct

the test. Id. at __, 131 S. Ct. at 2710-11, 180 L. Ed. 2d at

616-17. There also was a section where “the SLD examiner who

reviewed Caylor’s analysis certified that Caylor was qualified

to conduct the BAC test, and that the ‘established procedure’

for handling and analyzing [the] sample ‘ha[d] been followed.’”

Id. at __, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617 (final

alteration in original).

At trial, “the State announced that it would not be calling

SLD analyst Curtis Caylor as a witness.” Id. at __, 131 S. Ct.

at 2711, 180 L. Ed. 2d at 618. The trial court admitted the

blood report as a business record, over defense counsel’s

25

objection, during the testimony of “an SLD scientist who had

neither observed nor reviewed Caylor’s analysis.” Id. at __,

131 S. Ct. at 2712, 180 L. Ed. 2d at 618. The defendant was

convicted, and the state appellate court and state supreme court

each affirmed the conviction. Id. at __, 131 S. Ct. at 2712-13,

180 L. Ed. 2d at 618-19. Specifically, the state supreme court,

while acknowledging that the report was testimonial, concluded

that the substitute analyst served as a surrogate witness, such

that there was no violation of the defendant’s right of

confrontation. Id. at __, 131 S. Ct. at 2713, 180 L. Ed. 2d at

619.

The Supreme Court reversed and held, in an opinion by

Justice Ginsberg, that “surrogate testimony of that order does

not meet the constitutional requirement” of confrontation. Id.

at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. The Court’s

holding was joined by Justices Scalia, Thomas, Sotomayor, and

Kagan.

Justice Ginsburg first found that the forensic report in

issue was testimonial by analogizing the report to the

certifications in Melendez-Diaz and underscoring the

similarities: “[l]ike the analysts in Melendez-Diaz, analyst

Caylor tested the evidence and prepared a certificate concerning

the result of his analysis”; and “[l]ike the Melendez-Diaz

certificates, Caylor’s certificate is ‘formalized’ in a signed

26

document, headed a ‘report.’” Id. at __, 131 S. Ct. at 2717,

180 L. Ed. 2d at 624 (citations omitted). Notwithstanding that

Caylor’s SLD report was not notarized, it was determined that

the formalities of the report sufficed to render its contents

testimonial. Ibid.

The opinion then addressed whether the surrogate witness

satisfied the Confrontation Clause requirements. Id. at __, 131

S. Ct. at 2714-16, 180 L. Ed. 2d at 620-23. Justice Ginsberg

noted that Caylor’s representations in the SLD report (that the

blood sample was intact, that proper procedures were followed,

and that the analysis was valid) were proper subjects for cross-

examination. Id. at __, 131 S. Ct. at 2714, 180 L. Ed. 2d at

620-21. With cross-examination concerns in mind, the Court

concluded that the surrogate witness did not satisfy the

defendant’s confrontation rights because the surrogate’s

testimony “could not convey what Caylor knew or observed about

the events his certification concerned, i.e., the particular

test and testing process he employed.” Id. at __, 131 S. Ct. at

2715, 180 L. Ed. 2d at 622 (footnote omitted). Simply put, the

surrogate did not certify the report or perform or observe the

tests and, therefore, cross-examination of the surrogate would

not satisfy the defendant’s confrontation rights.

Justice Scalia joined the majority opinion in full,

including Part IV, which addressed and dismissed concerns that

27

were voiced by parties and the dissent about the undue

testimonial burdens that would be placed on forensic analysts

when the Court’s holding was applied to the many situations

where multiple participants are involved in forensic testing,

and the retesting of laboratory samples that seemingly would be

necessitated in the holding’s wake. Id. at __, 131 S. Ct. at

2717-19, 180 L. Ed. 2d at 624-26.

Part IV is unusual in that only Justice Scalia joined in

that part of the opinion. Neither Justice Ginsberg nor any of

the other justices who joined her opinion adopted that section’s

dismissal of the practical concerns implicated by the holding’s

direction for forensic reports. In addition, Justices Thomas

and Ginsberg did not join in footnote six of the opinion, which

reviewed the “primary purpose” analysis used in the appeal to

determine whether the SLD document involved testimonial

statements. Id. at __ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed.

2d at 620 n.6.7

Justice Sotomayor also wrote a separate concurring opinion

that emphasized the limited nature of the Court’s holding. Id.

at __, 131 S. Ct. at 2719, 180 L. Ed. 2d at 626 (Sotomayor, J.,

7

As Justice Thomas previously had emphasized in his separate

opinion in Melendez-Diaz, supra, his view was that the

testimonial nature of statements depended on their formality.

557 U.S. at 329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333

(Thomas, J., concurring). His rejection of the articulation of

the primary purpose test in Bullcoming is consistent with that

view.

28

concurring). Her concurrence highlighted factual circumstances

that were not presented in Bullcoming:

First, this is not a case in which the

State suggested an alternate purpose, much

less an alternate primary purpose, for the

[SLD] report. . . .

Second, this is not a case in which the

person testifying is a supervisor, reviewer,

or someone else with a personal, albeit

limited, connection to the scientific test

at issue. . . . It would be a different

case if, for example, a supervisor who

observed an analyst conducting a test

testified about the results or a report

about such results. We need not address

what degree of involvement is sufficient

because here [the surrogate who testified]

had no involvement whatsoever in the

relevant test and report.

Third, this is not a case in which an

expert witness was asked for his independent

opinion about underlying testimonial reports

that were not themselves admitted into

evidence. See Fed. Rule Evid. 703

(explaining that facts or data of a type

upon which experts in the field would

reasonably rely in forming an opinion need

not be admissible in order for the expert’s

opinion based on the facts and data to be

admitted). As the Court notes, ante, at

___, 180 L. Ed. 2d at 622, the State does

not assert that [the surrogate] offered an

independent, expert opinion about

Bullcoming’s blood alcohol concentration.

Rather, the State explains, “[a]side from

reading a report that was introduced as an

exhibit, [the surrogate] offered no opinion

about [Bullcoming’s] blood alcohol content

. . . .” . . . We would face a different

question if asked to determine the

constitutionality of allowing an expert

witness to discuss others’ testimonial

statements if the testimonial statements

29

were not themselves admitted as evidence.

Finally, this is not a case in which

the State introduced only machine-generated

results, such as a printout from a gas

chromatograph. . . . [W]e do not decide

whether . . . a State could introduce

(assuming an adequate chain of custody

foundation) raw data generated by a machine

in conjunction with the testimony of an

expert witness.

[Id. at ___, 131 S. Ct. at 2722, 180 L. Ed.

2d at 628-30 (Sotomayor, J., concurring).]

In making those important points, Justice Sotomayor’s

opinion foreshadowed many of the questions that courts such as

ours have had to wrestle with in the wake of the Supreme Court’s

contemporary Confrontation Clause cases. See, e.g., Marshall v.

People, 309 P.3d 943, 947-48 (Colo. 2013) (listing cases that

have addressed just “[the] question of whether supervisor

testimony satisfies the Confrontation Clause when the supervisor

prepares or signs the report”), cert. denied, 82 U.S.L.W. 3685

(U.S. May 27, 2014). Importantly, she returned the discussion

in Bullcoming to the notable point that Melendez-Diaz, in

addressing a circumstance in which there was a failure to call

any witnesses at all in connection with the forensic report in

issue, did not stand for the proposition that every person

identified as performing some task in connection with a forensic

report must be called as a witness.

[N]ot . . . every person noted on the [SLD]

report must testify. As . . . explained in

30

Melendez-Diaz, it is not the case that

anyone whose testimony may be relevant in

establishing the chain of custody,

authenticity of the sample, or accuracy of

the testing device, must appear in person as

part of the prosecution’s case . . . .

[Id. at __ n.2, 131 S. Ct. at 2721 n.2, 180

L. Ed. 2d at 627 n.2 (internal quotation

marks omitted).]

Justice Sotomayor’s separate opinion has helped curb the

belief that Bullcoming stands for the proposition that forensic

reports require, for their admission, the testimony of all

analysts involved in the handling and testing of a sample used

in any forensic analysis. See, e.g., Ware v. State, __ So. 3d

__, __ (Ala. 2014) (slip op. at 16); Jenkins v. State, 102 So.

3d 1063, 1066 (Miss. 2012), cert. denied, __ U.S. __, 133 S. Ct.

2856, 186 L. Ed. 2d 914 (2013); State v. Eagle, 835 N.W.2d 886,

898 (S.D. 2013).

Notably, there also was a dissent in Bullcoming, supra,

authored by Justice Kennedy and joined by Chief Justice Roberts,

Justice Breyer and Justice Alito, that expressed disagreement

with “the new and serious misstep of extending [Melendez-Diaz’s]

holding to instances like this one.” 564 U.S. at __, 131 S. Ct.

at 2723, 180 L. Ed. 2d at 630 (Kennedy, J., dissenting).

Building on his dissent in Melendez-Diaz, Justice Kennedy

focused on “[a]dditional reasons, applicable to the extension of

that doctrine and to the new ruling in this case,” for his

31

objection to the majority’s confrontation theory. Ibid. He

termed “requiring the State to call the technician who filled

out a form and recorded the results of a test . . . a hollow

formality.” Id. at __, 131 S. Ct. at 2724, 180 L. Ed. 2d at

632. He pointed to the varying principles that “have weaved in

and out of the Crawford jurisprudence,” and expressed serious

reservations about the rationale employed by the majority:

“That the Court in the wake of Crawford has had such trouble

fashioning a clear vision of that case’s meaning is unsettling

. . . .” Id. at __, 131 S. Ct. at 2725-26, 180 L. Ed. 2d at

632-33. The dissent concluded with a strong call to reexamine

the Court’s Confrontation Clause jurisprudence:

Seven years after its initiation, it bears

remembering that the Crawford approach was

not preordained. This Court’s missteps have

produced an interpretation of the word

“witness” at odds with its meaning elsewhere

in the Constitution . . . and at odds with

the sound administration of justice. It is

time to return to solid ground.

[Id. at __, 131 S. Ct. at 2728, 180 L. Ed.

2d at 636 (citation omitted).]

3.

Most recently, the Supreme Court issued Williams, supra, a

case involving a DNA profile produced by a private laboratory,

Cellmark. The profile was discussed in testimony by a police

analyst who matched it to the defendant’s DNA. 567 U.S. at __,

132 S. Ct. at 2227, 183 L. Ed. 2d at 98. The analyst used

32

information from a DNA profile created from crime scene samples

by another analyst in rendering her opinion that that profile

matched the DNA profile that she herself had created from the

defendant’s buccal swab. Id. at __, 132 S. Ct. at 2240, 2243-

44, 183 L. Ed. 2d at 112, 115-16. A plurality opinion by

Justice Alito, joined by Chief Justice Roberts and Justices

Kennedy and Breyer, set forth several rationales for concluding

that the defendant’s right of confrontation was not violated by

the testimony. We refer to this as the plurality opinion,

although the analysis is criticized by a majority of the Court,

see id. at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan,

J., dissenting), including Justice Thomas, who joined in the

judgment but disavowed the reasoning, id. at __, 132 S. Ct. at

2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring).

Two key analyses are set forth in Justice Alito’s opinion.

Justice Alito first reasoned that “[o]ut-of-court statements

that are related by the expert solely for the purpose of

explaining the assumptions on which [her] opinion rests are not

offered for their truth and thus fall outside the scope of the

Confrontation Clause.” Id. at __, 132 S. Ct. at 2228, 183 L.

Ed. 2d at 99 (plurality opinion). In opining that the Cellmark

DNA profile was never admitted for its truth, Justice Alito

reasoned,

[t]his conclusion is entirely consistent

33

with Bullcoming and Melendez-Diaz. In those

cases, the forensic reports were introduced

into evidence, and there is no question that

this was done for the purpose of proving the

truth of what they asserted: in Bullcoming

that the defendant’s blood alcohol level

exceeded the legal limit and in Melendez-

Diaz that the substance in question

contained cocaine. Nothing comparable

happened here. In this case, the Cellmark

report was not introduced into evidence. An

expert witness referred to the report not to

prove the truth of the matter asserted in

the report, i.e., that the report contained

an accurate profile of the perpetrator’s

DNA, but only to establish that the report

contained a DNA profile that matched the DNA

profile deduced from [Williams’s] blood.

[Id. at __, 132 S. Ct. at 2240, 183 L. Ed.

2d at 112.]

Alternatively, Justice Alito’s opinion states that “even if

the report produced by Cellmark had been admitted into evidence,

there would have been no Confrontation Clause violation” because

the report was not produced for the primary purpose of accusing

a targeted individual. Id. at __, 132 S. Ct. at 2228, 183 L.

Ed. 2d at 99. “The report was sought not for the purpose of

obtaining evidence to be used against [Williams], who was not

even under suspicion at the time, but for the purpose of finding

a rapist who was on the loose.” Ibid. This alternative

analysis -- promoting a targeted-accusation test -- provoked

criticism from other Court members, who asserted that the

opinion threw into disorder the Court’s previously settled test

for assessing whether evidence is testimonial for confrontation

34

purposes. Id. at __, 132 S. Ct. at 2274, 183 L. Ed. 2d at 149

(Kagan, J., dissenting). However, before turning to the

dissent’s disagreement with Justice Alito’s plurality opinion,

it is noteworthy that even within the plurality there were

concurring opinions.

Justice Breyer, who also joined Justice Alito’s opinion,

issued a concurring opinion in which he largely agreed with the

plurality, but expressed his view that “neither the plurality

nor the dissent answers adequately: How does the Confrontation

Clause apply to the panoply of crime laboratory reports and

underlying technical statements written by (or otherwise made

by) laboratory technicians?” Id. at __, 132 S. Ct. at 2245, 183

L. Ed. 2d at 117 (Breyer, J., concurring). Addressing the

dissent specifically, Justice Breyer critically noted that its

reasoning would “require[e] the prosecution to call all of the

laboratory experts” who worked on a matter. Id. at __, 132 S.

Ct. at 2246, 183 L. Ed. 2d at 118. Ultimately, Justice Breyer

stated, “I adhere to the dissenting view set forth in Melendez-

Diaz and Bullcoming, under which the Cellmark report would not

be considered ‘testimonial’ and barred by the Confrontation

Clause.” Id. at __, 132 S. Ct. at 2248, 183 L. Ed. 2d at 121.

Justice Thomas concurred only in the judgment of the Alito

plurality opinion. Id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d

at 129 (Thomas, J., concurring in the judgment). In his view,

35

“the disclosure of Cellmark’s out-of-court statements through

the expert testimony of [the analyst who performed the DNA

match] did not violate the Confrontation Clause.” Ibid.

However, he “share[d] the dissent’s view of the plurality’s

flawed analysis,” and only reached his conclusion “because

Cellmark’s statements lacked the requisite ‘formality and

solemnity’ to be considered ‘testimonial’ for purposes of the

Confrontation Clause.” Ibid. (quoting Michigan v. Bryant, 562

U.S. __, __, 131 S. Ct. 1143, 1168, 179 L. Ed. 2d 93, 120 (2011)

(Thomas, J., concurring in judgment)).

Justice Kagan authored a dissent, which was joined by

Justices Scalia, Ginsburg, and Sotomayor. Id. at __, 132 S. Ct.

at 2264, 183 L. Ed. 2d at 138 (Kagan, J., dissenting). In a

single paragraph, Justice Kagan captured the splintered

viewpoints existing among the Court’s members:

The Court today disagrees [that Williams’s

confrontation rights were violated], though

it cannot settle on a reason why. Justice

Alito, joined by three other Justices,

advances two theories -- that the expert’s

summary of the Cellmark report was not

offered for its truth, and that the report

is not the kind of statement triggering the

Confrontation Clause’s protection. . . .

[I]n all except its disposition, his opinion

is a dissent: Five Justices specifically

reject every aspect of its reasoning and

every paragraph of its explication. Justice

Thomas, for his part, contends that the

Cellmark report is nontestimonial on a

different rationale. But no other Justice

joins his opinion or subscribes to the test

36

he offers.

[Id. at __, 132 S. Ct. at 2265, 183 L. Ed.

2d at 139 (citations omitted).]

On the merits of the case, Justice Kagan found that “the

[Cellmark] report is, in every conceivable respect, a statement

meant to serve as evidence in a potential criminal trial,”

putting the report squarely within the realm of testimonial

statements. Id. at __, 132 S. Ct. at 2275, 183 L. Ed. 2d at

151. In concluding, Justice Kagan expressed her frustration

with the results flowing from the Court’s divergent opinions:

The five Justices who control the outcome of

today’s case agree on very little. Among

them, though, they can boast of two

accomplishments. First, they have approved

the introduction of testimony at Williams’s

trial that the Confrontation Clause, rightly

understood, clearly prohibits. Second, they

have left significant confusion in their

wake. What comes out of four Justices’

desire to limit Melendez-Diaz and Bullcoming

in whatever way possible, combined with one

Justice’s one-justice view of those

holdings, is -- to be frank -- who knows

what. Those decisions apparently no longer

mean all that they say. Yet no one can tell

in what way or to what extent they are

altered because no proposed limitation

commands the support of a majority.

[Id. at __, 132 S. Ct. at 2277, 183 L. Ed.

2d at 152.]

IV.

A.

Normally we would turn to the Supreme Court’s most recent

37

decision in an area of law to guide us in our interpretation and

application of the Court’s case law. However, like a number of

state high courts and federal courts of appeal, we find that the

fractured holdings of Williams provide little guidance in

understanding when testimony by a laboratory supervisor or co-

analyst about a forensic report violates the Confrontation

Clause. See Jenkins v. United States, 75 A.3d 174, 184 (D.C.

2013) (noting that Williams “has not provided any clarity” to

Confrontation Clause jurisprudence); State v. Ortiz-Zape, 743

S.E.2d 156, 161 (N.C. 2013) (noting “lack of definitive

guidance” provided by Williams), cert. denied, 82 U.S.L.W. 3685

(U.S. May 27, 2014).

A case may be “of questionable precedential value” where “a

majority of the Court expressly disagree[s] with the rationale

of the plurality.” Seminole Tribe of Fla. v. Florida, 517 U.S.

44, 66, 116 S. Ct. 1114, 1128, 134 L. Ed. 2d 252, 273 (1996).

The general rule for interpreting opinions where no single

rationale is espoused by a majority of the Court is that “the

holding of the Court may be viewed as that position taken by

those Members who concurred in the judgments on the narrowest

grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S. Ct.

990, 993, 51 L. Ed. 2d 260, 266 (1977) (internal quotation marks

omitted).

However, as recognized by the Court of Appeals for the

38

District of Columbia in attempting to interpret Williams, the

Marks approach “works only when the narrowest opinion actually

does represent ‘a common denominator.’ If one opinion ‘does not

fit entirely within a broader circle drawn by the others,’ the

Marks approach . . . would ‘turn a single opinion’ to which

‘eight of nine justices do not subscribe’ into law.’” Young v.

United States, 63 A.3d 1033, 1043 (D.C. 2013) (quoting King v.

Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991), cert. denied, 503

U.S. 918, 112 S. Ct. 1290, 117 L. Ed. 2d 514 (1992)). Rather,

as the Court of Appeals for the Third Circuit has noted, in

cases where the rationales given in the multiple opinions are

not subsets of each other, “no particular standard constitutes

the law of the land, because no single approach can be said to

have the support of a majority of the Court.” Rappa v. New

Castle Cnty., 18 F.3d 1043, 1058 (3d Cir. 1994); see also State

v. Deadwiller, 834 N.W.2d 362, 373 (Wis. 2013) (“If no

theoretical overlap exists between the rationales employed by

the plurality and the concurrence, ‘the only binding aspect of

the fragmented decision . . . is its specific result.’”

(alteration in original) (quoting Berwind Corp. v. Comm’r of

Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002), cert. denied, 538

U.S. 1012, 123 S. Ct. 1927, 155 L. Ed. 848 (2003)) (internal

quotation marks omitted)).

We find that Williams is such a case for the following

39

reasons.

Justice Alito, in his four-justice plurality opinion, found

no Confrontation Clause violation because (1) the expert

witness’s reference to the laboratory report in question was not

an assertion that the information in the report was true,

Williams, supra, 567 U.S. at __, 132 S. Ct. at 2240, 183 L. Ed.

2d at 111-12; and (2) the report was not testimonial because it

was not produced for the primary purpose of accusing a specific,

known defendant, id. at __, 132 S. Ct. at 2243-44, 183 L. Ed. 2d

at 115-16. Justice Thomas, writing only for himself, concurred

in the result because he also concluded that the report was not

testimonial. Id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at

129 (Thomas, J., concurring in the judgment). However, he

applied an entirely different test, focusing on the formality

and solemnity of the statement rather than whether its primary

purpose was accusatory. Id. at __, 132 S. Ct. at 2259-60, 183

L. Ed. 2d at 133-34. He also disagreed that the report had not

been introduced for its truth. Id. at __, 132 S. Ct. at 2257,

183 L. Ed. 2d at 130. Justice Kagan, in a four-justice dissent,

disagreed with both the rationales articulated by the plurality

and with the rationale articulated by Justice Thomas. Id. at

__, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J.,

dissenting). Rather, the dissent found that the report was

testimonial because it was intended to serve as evidence in a

40

criminal trial and that the manner of its introduction failed to

satisfy the defendant’s confrontation rights. Id. at __, 132 S.

Ct. at 2267-68, 183 L. Ed. 2d at 142.

In short, each of those three opinions in Williams embraces

a different approach to determining whether the use of forensic

evidence violates the Confrontation Clause, and there is no

narrow rule that would have the support of a majority of the

Supreme Court that we can discern from the opinions in Williams.

Further, Williams advances a wholly new approach to when a

forensic document will be deemed testimonial, and that approach

diverges from the primary purpose test that had been applied

previously.

We find Williams’s force, as precedent, at best unclear.

Without more definitive evidence that the Court is adopting an

approach other than the primary purpose test for use in

determining when a forensic document is testimonial, we are

reluctant to conclude that the primary purpose test has been

abandoned.

Moreover, since the Supreme Court’s Crawford decision and

its subsequent cases applying the “primary purpose” test to

various hearsay statements made to police,8 our Court has

8

See Davis, supra, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d

224 (addressing consolidated cases Davis v. Washington, where

Court found admissible victim’s 911 call in assault case, and

Hammon v. Indiana, where Court held inadmissible affidavit from

41

followed the “primary purpose” test to distinguish between non-

testimonial and testimonial statements when determining whether

a violation of the Confrontation Clause has occurred. See State

ex rel. J.A., 195 N.J. 324, 348-51 (2008) (finding that, because

non-appearing eyewitness’s statement to police about robbery and

robbers’ flight was testimonial, statement’s admission violated

defendant’s confrontation rights); State v. Buda, 195 N.J. 278,

304-08 (2008) (holding battered child’s statement to mother and

separate statement during hospital admission to child services

worker were not testimonial and therefore admission of

statements did not violate defendant’s confrontation rights).9

domestic violence victim interviewed by police at crime scene);

see also Bryant, supra, 562 U.S. at __, 131 S. Ct. at 1150, 179

L. Ed. 2d at 101-02 (holding admissible statement by victim to

police about shooter’s identity because primary purpose was to

respond to ongoing emergency).

9

The primary purpose test also has been used to discern whether

statements in forensic reports were testimonial. In Sweet,

supra, 195 N.J. at 373-74, we distinguished foundational

documents from signed and certified State Laboratory

certificates on the basis that the former were not

“testimonial.” Sweet involved Breathalyzer foundational

documents, specifically ampoule testing certificates and breath

testing instrument inspection certificates. Id. at 370-71. We

noted that those foundational records constituted hearsay but

were admissible as business records under N.J.R.E. 803(c)(3),

and not “testimonial” so as to raise confrontation concerns.

Id. at 372-74. A similar observation was made in State v. Chun

when considering Alcotest blood alcohol test results. 194 N.J.

54, 142, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.

2d 41 (2008). We noted that the foundational documents showing

that the device was in good working condition constituted

admissible hearsay as business records, without risking

violation of a defendant’s confrontation rights. Ibid.

42

Accordingly, we adhere to that approach.

Furthermore, the divergent analytic approaches taken in

Williams with respect to the testimonial nature of the Cellmark

report also undermine the decision’s value in assessing, in any

given circumstance involving forensic evidence, whether a

defendant’s confrontation rights were violated. Accordingly, we

turn for more reliable guidance in that respect to pre-Williams

Confrontation Clause law.

B.

In Melendez-Diaz, supra, no witness was offered to support

and be cross-examined in respect of the statements contained in

the forensic document that was admitted into evidence without

live testimony. 557 U.S. at 308-09, 129 S. Ct. at 2531, 174 L.

Ed. 2d at 320. In Bullcoming, supra, a forensic report was

admitted into evidence through the testimony of a co-worker who

did not observe the work of the analyst who performed the

testing, serve as the analyst’s supervisor, or certify the

results obtained by the analyst whose work was contained in the

report as a second independent reviewer. 564 U.S. at __, 131 S.

Ct. at 2709-10, 180 L. Ed. 2d at 616. The holdings in those two

cases can be understood based on the peculiar and stark facts in

each. That said, it is far from clear that either case compels

a broad new obligation requiring testimony by multiple analysts

involved in every kind of forensic testing that produces a

43

report used in a criminal case against a defendant.

First, neither Bullcoming’s holding nor Melendez-Diaz’s

requires that every analyst involved in a testing process must

testify in order to admit a forensic report into evidence and

satisfy confrontation rights. That conclusion was underscored

in Justice Sotomayor’s observations on Melendez-Diaz in

Bullcoming, supra. See 564 U.S. at __ n.2, 131 S. Ct. at 2721

n.2, 180 L. Ed. 2d at 627 n.2 (Sotomayor, J., concurring).

Justice Kagan’s dissent in Williams, supra, makes the same

point. See 567 U.S. at __ n.4, 132 S. Ct. at 2273 n.4, 183 L.

Ed. 2d at 148 n.4 (Kagan, J., dissenting). The fact that no

member of the Court except Justice Scalia joined Section IV of

Bullcoming further suggests that all of the other justices

harbor some level of disquiet over the necessity and

practicality of rigidly interpreting the Confrontation Clause to

compel the testimony of all persons who handled or were involved

in the forensic testing of a sample.

Second, neither Melendez-Diaz nor Bullcoming lead to the

conclusion that in every case, no matter the type of testing

involved or the type of review conducted by the person who does

testify, the primary analyst involved in the original testing

must testify to avoid a Confrontation Clause violation. In

Melendez-Diaz, no analyst testified. In Bullcoming, the

surrogate analyst who testified was found to lack sufficient

44

direct knowledge about the blood alcohol testing and the

conclusions in the blood alcohol report that the surrogate

neither certified nor separately reviewed. We do not find that

either Melendez-Diaz or Bullcoming stands for the proposition

that in all cases the primary analyst who performed the test

must testify when a different, sufficiently knowledgeable expert

is called to testify at trial. That would take the holdings of

those decisions to a new level, which we decline to do when the

Supreme Court has not done so.

Moreover, it would take confrontation law to a level that

is not only impractical, but, equally importantly, is

inconsistent with our prior law addressing the admissibility of

an expert’s testimony in respect of the substance of underlying

information that he or she used in forming his or her opinion.

Even prior to the Supreme Court’s reexamination of the

Confrontation Clause in Crawford and our subsequent articulation

of the primary purpose test in J.A. and Buda, we had grappled

with the admissibility of medical reports and other forensic

evidence under our evidence rules. As noted by the State in

this case, N.J.R.E. 703 allows a testifying expert to rely on

inadmissible facts or data as long as those facts or data are

“of a type reasonably relied upon by experts in the particular

field in forming opinions or inferences upon the subject.”

N.J.R.E. 705 further provides that, although an expert “may

45

testify in terms of opinion or inference and give reasons

therefor without prior disclosure of the underlying facts or

data, . . . [t]he expert may in any event be required to

disclose the underlying facts or data on cross-examination.”

While not a substitute for a confrontation analysis as to when

the proponent of the underlying information must be produced for

cross-examination, it provides necessary background to our

analysis of the forensic evidence in issue.

Among the documents that may properly be relied on by an

expert witness under Rule 703 are nontestimonial foundational

documents. We have previously held that documents demonstrating

that a machine is in good working condition and is calibrated

correctly are within this class of nontestimonial foundational

documents because they do not report past facts and are not

generated in order to establish a fact that is an element of a

criminal offense. See Sweet, supra, 195 N.J. at 372-74 (noting

admissibility of ampoule testing certificates and breath testing

instrument inspection certificates because nontestimonial);

State v. Chun, 194 N.J. 54, 142-44 (commenting similarly for

Alcotest blood alcohol test results in respect of foundational

documents that show device is in good working condition), cert.

denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).

A number of other courts similarly have found that the

introduction at trial of calibration records does not violate

46

the Confrontation Clause. See, e.g., People v. Pealer, 985

N.E.2d 903, 907-08 (N.Y.), cert. denied, __ U.S. __, 134 S. Ct.

105, 187 L. Ed. 2d 77 (2013); Commonwealth v. Dyarman, 73 A.3d

565, 574 (Pa. 2013), cert. denied, __ U.S. __, 134 S. Ct. 948,

187 L. Ed. 2d 785 (2014); Jones v. State, 982 N.E.2d 417, 428

(Ind. Ct. App.), transfer denied, 987 N.E.2d 70 (Ind. 2013).

Although a hearsay analysis is not a replacement for a

confrontation analysis, we note further that in the application

of N.J.R.E. 808’s business records hearsay exception to

scientific reports and records containing embedded information

we eschew admission of subjective, complex hearsay statements.

The admissibility of such reports depends on factors including

“the relative degrees of objectivity and subjectivity involved

in the procedure; the regularity with which these analyses are

done; [and] the routine quality of each analysis.” State v.

Matulewicz, 101 N.J. 27, 30 (1985) (addressing laboratory report

prepared by State Police chemist). Recent cases in this context

continue to connect the degree of complexity of the analysis

with the importance of allowing the other party to cross-examine

the expert who conducted that analysis. See Agha v. Feiner, 198

N.J. 50, 65-67 (2009) (differentiating between “straightforward

observations” contained in expert reports that may be admitted

for their truth without an opportunity for cross-examination of

the declarant, and statements of “diagnosis” “critical to the

47

primary issue in the case” which may not be); Chun, supra, 194

N.J. at 142 (finding routine Breathalyzer calibration test

reports admissible as business records); Brun v. Cardoso, 390

N.J. Super. 409, 422 (App. Div. 2006) (rejecting medical

document as business record based on complexity of MRI reading

and diagnosis).

In determining when the facts underlying a forensic expert

opinion may be disclosed to the jury, our evidence case law has

focused on whether the witness is knowledgeable about the

particular information used in forming the opinion to which he

or she is testifying and has a means to verify the underlying

information even if he or she was not the primary creator of the

data. Our evidence law is thus consistent with the principle

that a knowledgeable expert who is someone other than the

primary analyst who conducted a forensic gas chromatography/mass

spectrometry test may testify to an opinion regarding testing

results, when those results have been generated by demonstrably

calibrated instruments. Accord Ortiz-Zape, supra, 743 S.E.2d at

161-62 (holding that expert’s use of machine-generated raw data,

consistent with North Carolina’s Evidence Rule 703, does not

violate Confrontation Clause when defendant has opportunity to

cross-examine expert who rendered opinion based on that data).

With that backdrop, we examine the testimony of Dr.

Barbieri that was challenged in this matter.

48

V.

A.

In this appeal, defendant argues that her confrontation

rights were violated by Dr. Barbieri’s testimony and the

admission of his certified report. She focuses on Dr.

Barbieri’s testimony and opinion that, based on the nature and

quantity of drugs found in defendant’s blood sample from testing

procedures carried out by analysts in the laboratory he

supervised, defendant was drug impaired at the time of her motor

vehicle accident. The evolution of defendant’s argument

deserves brief mention.

At trial, defendant objected to the admission of Dr.

Barbieri’s three-page report on the basis that it was

inadmissible hearsay because Dr. Barbieri testified to someone

else’s findings rather than his own. The State emphasized that

Dr. Barbieri testified that he personally reviewed the data

generated from the gas chromatography/mass spectrometry tests

and that he was the one who drafted and signed the report

setting forth the results and his opinion. There was no quoting

of another person’s findings in Dr. Barbieri’s report; it only

referenced machine-generated data identifying and quantifying

the drugs found in defendant’s blood sample.

The trial court rejected defendant’s hearsay argument as a

basis to exclude the report, and rightly so. Dr. Barbieri

49

examined and used the raw data generated by the gas

chromatography/mass spectrometry machines in preparing his

report and the conclusions that he reached. This case is unlike

Agha, supra, 198 N.J. at 67, where an expert testified based on

a hospital report containing another doctor’s subjective

statements and conclusions. Under those circumstances, we held

that the statements contained in the report were hearsay and

could not be admitted for their truth through the expert’s

testimony. Ibid.

Later, at the close of the State’s case, defendant filed a

motion to strike Dr. Barbieri’s testimony, arguing that the

State was required to produce the person who actually performed

the testing about which Dr. Barbieri testified. Defendant did

not expressly claim a violation of her rights under the

Confrontation Clause. The trial court denied the motion,

explaining that “[a]s the supervisor of the lab, certainly [Dr.

Barbieri is] in a position to testify about the procedures that

were employed and give an opinion, based upon his expertise,

[on] what conclusions should flow from that testing.” The court

indicated that the weight to be given to the testimony would be

up to the jury, but it declined “to exclude [Dr. Barbieri’s]

testimony because he did not personally perform the tests.”

In a post-trial motion and when the case was appealed to

the Appellate Division, defendant cast her argument about Dr.

50

Barbieri’s testimony as a violation of the Confrontation Clause.

The Appellate Division addressed that Confrontation Clause

argument, and we do as well. However, the State makes a strong

argument that defendant waived her Confrontation Clause

argument, or that the issue should be assessed as a matter of

plain error in light of the way it has been raised. Had a

confrontation argument been raised before the State concluded

its case, inquiry could have been made as to which analyst or

analysts defendant wanted produced. Even at this stage in the

proceedings, we are uncertain whether defendant argues that the

State must call all fourteen analysts who played some role, no

matter how inconsequential, in the procedures and protocols at

the lab, or one analyst, or some number in between. Defendant

has never been put to the task of making a confrontation

demand.10 As such we must consider defendant’s confrontation

argument taken to the extreme: that all fourteen analysts must

be produced in order for the State to introduce Dr. Barbieri’s

testimony and report.

10

Defendant’s argument that, until the trial, she did not know

that Dr. Barbieri did not personally perform the tests rings

hollow. First, she should have known from the documents turned

over in discovery. The hundreds of pages of discovery that

constituted the lab documents do not contain Dr. Barbieri’s name

on the pages reporting machine readings. Second, even after

discovering this fact during cross-examination of Dr. Barbieri,

defendant still never made any demand for production of any or

all analysts.

51

With that perspective, we turn to Dr. Barbieri’s testimony,

which was offered without any notice that, for confrontation

purposes, he needed to justify in detail the independence of his

review of the testing that was done or the exact manner in which

he reached the conclusions in his report.

B.

Dr. Barbieri’s testimony explained that the analysts and

technicians employed by NMS perform differing roles in the

handling and testing of blood samples. Indeed, much of modern

forensic testing involves multiple analysts, as was the case in

the present matter. He described the process in detail,

including how a specimen is inspected and marked when received,

how a work order is assigned and follows the work through every

step in the process, and how chain of custody is maintained and

recorded. His description of the testing process, he said,

applied generally and in defendant’s case.

The samples are labeled.

The testing is ordered by a forensic

processor.

Aliquots are drawn.

An aliquot is a small sample of the

original sample for moving back into the

laboratory proper for the various types of

testing.

The original sample never leaves the

forensic processing area.

52

After the aliquots are drawn, that

original sample is stored in a secured

refrigerator. Labeled as to location and

things like that. So the aliquot goes back

to the lab.

All of this is done, and [a] forensic

folder is produced, which is labeled and

that carries through with all the testing;

and some of the original data actually goes

into that folder.

When all the testing is done, the

toxicologist is notified. Toxicologists

pick up the folder [and] review all the

data. Either the raw data that’s in the

file, or on the computer. Generate a

report. And that report is sent to the

client. With all the information that we

have received. And positive and negative

findings as well.

Dr. Barbieri testified that 957 pages of raw data,

including chain of custody and machine-generated documents, were

produced from the work that NMS performed on defendant’s blood

sample. That raw data was shared with defendant in discovery

and included, in relevant part, the machine-generated data from

the gas chromatography/mass spectrometry machines on the

calibration material, the quality control material, and the

aliquots of defendant’s blood sample. Dr. Barbieri explained

how gas chromatography/mass spectrometry, which he was trained

to perform and was knowledgeable about, was used to confirm the

presence of drugs in defendant’s blood:

[I]t’s a procedure that’s been around since,

1950’s. So it’s a well established

procedure.

53

There’s two parts to the

instrumentation. The Gas Chromatogram, and

then the Mass Spectrometer.

The GC part of it is basically a large

tube. It’s about 100-foot very fine tube in

an oven. And, there’s a gas that flows

through: Helium inert gas. And the sample

is injected into one end of the column into

the injectory port. And this oven heats.

It heats it up to over 250 degrees

centigrade. It’s very hot. And everything

volatilizes into a vapor phase. And as the

gas flows through this column[, t]he column

separates different compounds. And when it

comes out at the detector, the time from the

time it’s injected, to the time it comes

out, is called the “retention time.” The

time it’s retained in the column.

Every compound, based upon the way the

analysis is set up, will have a definitive

retention time. So we measure the retention

times as a marker for specific compounds.

As we do this, we also include in the

batch, calibration material, which would be

pure compounds of different concentrations.

And also quality control material. Which is

really blood samples that contain either

negative, no compound, or presence of some

compounds.

So we’re monitoring the system as it []

goes through. And we compare the responses

of [the] unknown blood sample, the retention

time, and the pe[a]k height that we get from

the detector against the calibration

materials, quality controls. So we can get

a quantitation of the compound; so we

identify, we quantify.

At the other end after it comes out, is

Mass Spectrometer. This is the really

important part of the instrument. Because

when the pe[a]ks come out through the GC

54

part, those new Mass Spectrometer, it’s like

a ray gun, basically, it’s shooting bullets

at the compound as it’s passing through. It

fractionates them. Breaks them apart. And

it breaks the molecules apart into pieces of

its original molecular weight.

Whether we do it in Willow Grove, we do

it here, or we do it in [] Alaska . . . the

fractionation of that compound is the same.

You have a book. You look up Cocaine.

You get the same pieces of that molecule.

So we basically have a fingerprint of

every molecule that’s moving through that.

And it’s quantified in the system. So we

have a fingerprint for cocaine. We have a

fingerprint for Cocaine metabolites.

And so the Mass Spectrometer breaks it

up, gives us a fingerprint, and gives us,

here is the different masses, and compares

it against a library. And it says; this is

a 98 percent hit, basically. And so, again,

positive identification and qualification.

And that’s how we ran the confirmations

on each of these type of compounds.

Dr. Barbieri then identified the drugs that were found in

defendant’s blood sample and the quantities detected. He

explained that documents are produced by the instruments when

the testing is performed and that the testing results are

printed directly from the machines. Those documents are

compiled for a reviewer who, in this case, was Dr. Barbieri.

Dr. Barbieri testified that he had available all 957 documents

generated during the testing process involved in defendant’s

case when he performed his review and analysis of the data. He

55

reviewed the raw data before preparing his signed and certified

report as the forensic toxicologist on defendant’s testing.

Although in his testimony Dr. Barbieri discussed the nature and

quantities of drugs he found to be present in defendant’s blood,

the machine-generated documents were not admitted into evidence.

The State also entered Dr. Barbieri’s certified report into

evidence through his live testimony. It is undisputed that Dr.

Barbieri did not actually conduct the initial or confirmatory

screening via gas chromatography/mass spectrometry performed on

defendant’s blood. We also have no evidence in this record that

Dr. Barbieri directly observed the individual analysts, who were

under his supervision, as each performed the tasks involved in

the testing process.

VI.

We note at the outset the factual differences between this

case and Melendez-Diaz and Bullcoming.

First, unlike in Melendez-Diaz, where no witness was

offered to testify to the statements contained in the state

lab’s forensic document that was admitted into evidence, here we

are not asked to consider a self-admitting report.

Indeed, to the extent that, once before, we were presented

with an argument that laboratory certificates issued by the New

Jersey State Laboratory could be regarded under N.J.S.A.

2C:35-19 as self-admitting documents that obviated any

56

confrontation right concerns, we rejected the notion. See State

v. Simbara, 175 N.J. 37, 49 (2002). Instead, we interpreted

N.J.S.A. 2C:35-19 as creating a notice-and-demand procedure for

the assertion -- or waiver -- of a defendant’s right to confront

the certificate’s preparer. Id. at 48-49.

The NMS report at issue here is outside the purview of

N.J.S.A. 2C:35-19 because the report was the product of a

private laboratory. More importantly, the report was admitted

through the live testimony of Dr. Barbieri, the person who

prepared, signed, and certified the report, and Dr. Barbieri was

available for cross-examination on his report. That renders the

circumstances of the NMS report’s admission materially different

from those of the report admitted at trial in Melendez-Diaz.

Second, the forensic report and testimony admitted in this

case differs in several respects from what happened in

Bullcoming. In Bullcoming, supra, the SLD forensic report was

admitted through the testimony of a co-analyst who did not

observe the work of the SLD analyst who performed the testing

and who did not serve as a supervisor or reviewer responsible

for certifying the blood alcohol results obtained by the analyst

whose work was referenced in the report. 564 U.S. at __, 131 S.

Ct. at 2711-12, 180 L. Ed. 2d at 618. If all we had was a co-

analyst reciting the findings contained in a report that he had

not participated in preparing or evaluated independently, we

57

would be faced with a scenario indistinguishable from

Bullcoming. But that is not the case here.

In the present matter, Dr. Barbieri supervised the

technicians and analysts who handled defendant’s blood sample

and performed the tests on small amounts of that sample using

the laboratory’s gas chromatography/mass spectrometry machines.

But we do not have testimony from someone simply bearing the

title of supervisor. Here we are presented with testimony by a

supervisor who was qualified as an expert in the relevant

subjects, and who analyzed the machine-generated data and

produced the certified report in issue.

Dr. Barbieri reviewed the procedures followed in the

testing and personally reviewed the machine-generated documents,

including the readings from calibration material and quality

control material, when reviewing the readings taken on the

aliquots of defendant’s blood.11 He signed the report and

certified its accuracy. The supervisory role that Dr. Barbieri

played in the testing process also required him to be

responsible for the testing procedures utilized by the NMS lab

generally and in this case, to be knowledgeable about the

testing, and to be able to evaluate the results generated by the

11

Dr. Barbieri also reviewed the chain of custody records as

part of his review and certified that the analysis was performed

under chain of custody. All of the necessary documents were

turned over in discovery and are not at issue in this appeal.

58

tests run by persons under his supervision and responsibility.

He testified that he had to satisfy himself that the lab’s

procedures and protocols were followed during the testing before

issuing his report.

Dr. Barbieri’s participation in preparing the report and

developing the substantive conclusions contained therein was

real and direct. He evaluated the results of the testing, found

them to be reliable, and produced the report detailing those

results. Moreover, he signed and certified that report. As the

reviewer of the testing process and the author of the report, it

was proper for him to testify to its contents and to answer

questions about the testing it reported. The fact that Dr.

Barbieri was testifying in respect of his own report

distinguishes him from the co-analyst in Bullcoming, who merely

presented a blood alcohol report prepared by another SLD co-

employee.

With regard to Dr. Barbieri’s in-court testimony, we note

that he explained how he independently reviewed the machine-

generated data and came to his conclusion about the findings and

opinion stated in the report that he authored, signed, and

certified. Dr. Barbieri testified that he reviewed the compiled

calibration and quality control documents and machine-generated

test results on defendant’s blood sample and concluded that they

demonstrated that

59

[a]ll the tests were done appropriately,

according to our standard operating

procedures, including our quality controls,

calibration, blanks, and all the testing was

done. And I believe the results produced

were accurate and true representations of

what was there in the blood of Julie

Michaels.

We conclude that there is no confrontation violation caused

by Dr. Barbieri’s use of nontestimonial calibration and quality

control data in preparing his report, or by his discussion of

that data in his testimony. Cf. Sweet, supra, 195 N.J. at 370-

71; Chun, supra, 194 N.J. at 142-44. Other courts similarly

have determined that the introduction at trial of calibration

records does not violate the Confrontation Clause. See, e.g.,

Pealer, supra, 985 N.E.2d at 907-08; Dyarman, supra, 73 A.3d at

574; Jones, supra, 982 N.E.2d at 428.

To the extent that the machine-generated results of the

tests conducted on defendant’s blood are of a more directly

accusatory nature, we address that data separately. As noted,

the machine-generated documents identifying the drugs found in

defendant’s blood, and quantifying each drug, were not

introduced into evidence, but their content was used by Dr.

Barbieri in preparing his report that stated the drugs found to

be present in defendant’s blood and the quantities detected.

Certainly, Dr. Barbieri’s report is testimonial, both in

his conclusion and in his use of test results indicating that

60

defendant had specific amounts of certain drugs in the blood

sample taken shortly after her motor vehicle accident. One can

hardly dispute that those conclusions are testimonial in nature,

and Bullcoming, supra, supports such a determination. See 564

U.S. at __, 131 S. Ct. at 2717, 180 L. Ed. 2d at 623-24. Dr.

Barbieri’s report bears all the indicia of a direct accusation

against defendant. As the author of that report, he is bearing

witness against the accused, namely defendant, when the report

is prepared for the State at its request. Because defendant had

the opportunity to confront and cross-examine Dr. Barbieri in

court about the results of the testing that he reviewed and

certified, defendant was not denied her right to confrontation.

Reviewed in toto, the machine-generated data provided the

basis for Dr. Barbieri to review the test results independently

and certify that the results were accurate and not flawed in

some way. Clearly, defendant could not cross-examine the

machines themselves. See Jenkins v. State, supra, 102 So. 3d at

1069 (approving supervisor’s expert testimony after review of

gas chromatography results obtained by nontestifying analyst);

see also United States v. Moon, 512 F.3d 359, 362 (7th Cir.)

(“[H]ow could one cross-examine a gas chromatograph?”), cert.

denied, 555 U.S. 812, 129 S. Ct. 40, 172 L. Ed. 2d 19 (2008).

And we have rejected the argument that defendant’s confrontation

rights could only be satisfied by testimony from all analysts

61

involved in the testing. Defendant’s opportunity to cross-

examine Dr. Barbieri about the testing and its results provided

meaningful confrontation. His testimony is in no way equivalent

to the surrogate testimony provided by the co-analyst from the

SLD lab in Bullcoming.

To be complete, we highlight our point of difference with

the dissent. Contrary to the dissent’s characterization of this

record, Dr. Barbieri was not repeating the findings and

conclusions of the analysts who manned the gas

chromatography/mass spectrometry devices. Rather, the findings

and conclusions contained in the report and to which he

testified were his own. It was his job to review and certify

the results of the tests performed on defendant’s blood sample.

Dr. Barbieri testified that he relied on raw data produced

by the machine tests regarding the levels of alprazolam,

cocaine, and cocaine metabolites in defendant’s system, and drew

his own conclusions from that data. He reviewed the calibration

and quality control tests to ensure that the machine was

producing accurate results in order to be satisfied that the

machines were generating true readings when defendant’s blood

sample was tested. He explained the confirmatory test that is

performed by the gas chromatography and mass spectrometry

machine and how its results are issued by the machine itself and

are not capable of being misreported or altered by a human

62

being. Dr. Barbieri’s explanation could have been more fulsome.

See e.g., Ortiz-Zape, supra, 743 S.E.2d at 158-59 (setting forth

detailed testimony of co-analyst on workings of gas

chromatography/mass spectrometry machine, whose results witness

independently reviewed and testified to without violating

defendant’s confrontation rights). However, as he explained,

the machine process is highly standardized. In the instant

case, the State’s presentation of this supervisor/reviewer’s

signed and certified report, based on his independent review of

machine-generated data, through his live testimony, did not

violate defendant’s confrontation rights.

Our difference with the dissent thus comes down to this:

we believe that a truly independent reviewer or supervisor of

testing results can testify to those results and to his or her

conclusions about those results, without violating a defendant’s

confrontation rights, if the testifying witness is knowledgeable

about the testing process, has independently verified the

correctness of the machine-tested processes and results, and has

formed an independent conclusion about the results. The dissent

claims that such testimony thwarts a defendant’s confrontation

rights. In the dissent’s view, only testimony by the original

analyst who worked on a test procedure, of any kind, can satisfy

a defendant’s confrontation rights. The majority’s view, and

holding, recognizes that testimonial facts can “belong” to more

63

than one person if the verification and truly independent review

described above are performed and set forth on the record by the

testifying witness.

In our judgment, Dr. Barbieri satisfied that standard and

was not parroting the testimonial hearsay of another analyst.

Rather, he testified to the findings and conclusions that he

reached based on test processes that he independently reviewed

and verified. Permitting such testimony does not value

expediency over constitutional rights, as the dissent claims.

Instead, this approach recognizes the reality that more than one

expert can responsibly verify a process, find a fact to be

reliable, and draw a conclusion. Respectfully, we do not accept

the dissent’s inflexible approach to scientific testing that

involves machine-generated data.

In concluding, as we do on this record, that defendant’s

confrontation rights were not violated, we note that several

other jurisdictions similarly have found that a supervisor or

reviewing analyst who reviews and certifies the work of an

analyst or analysts may testify in respect of forensic evidence

without running afoul of a defendant’s confrontation rights.

Specifically, a number of states have held that there is no

Confrontation Clause violation where a supervisor, who has

conducted his or her own independent review of the data

generated by other analysts, testifies to the conclusions he or

64

she has drawn from that independent analysis. See, e.g.,

Marshall v. People, supra, 309 P.3d at 947-48 (finding no

confrontation violation where testifying expert was lab

supervisor who reviewed urinalysis test results and prepared,

signed, and certified report); Jenkins v. State, supra, 102 So.

3d at 1069 (finding no confrontation violation where testifying

expert was lab supervisor who reviewed and co-signed report

identifying tested substance as cocaine and was knowledgeable

about testing procedures); Commonwealth v. Yohe, 79 A.3d 520,

540-41 (Pa. 2013) (finding confrontation rights satisfied by

ability to cross-examine supervisor who analyzed raw data from

blood alcohol tests, drew conclusions about intoxication, and

prepared and signed report), cert. denied, 82 U.S.L.W. 3685

(U.S. May 27, 2014); see also Ortiz-Zape, supra, 743 S.E.2d at

164-65 (finding no confrontation violation where testifying

expert was technical reviewer who testified to independent

conclusions based on review of cocaine substance analysis report

as well as all raw data and calibration and maintenance

documentation from testing).

We recognize that the holdings of various courts around the

country have not been uniform in analyzing Confrontation Clause

questions like the one presented here. Some courts, following

Justice Thomas, have adopted an approach that focuses on the

formality and solemnity of the report at issue. See, e.g.,

65

People v. Lopez, 286 P.3d 469, 581-84 (Cal. 2012) (finding no

confrontation violation where analyst testified based on

colleague’s blood alcohol report and testing because report was

unsigned and consisted entirely of chain of custody log and

machine-generated test data), cert. denied, __ U.S. __, 133 S.

Ct. 1501, 185 L. Ed. 2d 556 (2013); Derr v. State, 73 A.3d 254,

272-73 (Md. 2013) (finding serological and DNA testing reports

introduced through lab supervisor’s testimony insufficiently

formal to be testimonial because unsigned and no statements

attesting to accuracy), cert. denied, 82 U.S.L.W. 3707 (U.S.

June 9, 2014).

Another subset of courts, citing the confusion generated by

the fractured Williams opinions, have not attempted to formulate

a general approach for determining when the introduction of

forensic evidence by someone other than the analyst who

performed the tests will violate the Confrontation Clause. See,

e.g., State v. Bolden, 108 So. 3d 1159, 1161 (La. 2012);

Deadwiller, supra, 834 N.W.2d at 373. Rather, these courts have

resolved the cases before them by drawing analogies to the

specific facts of Williams and holding that, because the facts

are similar, the same result should pertain. Bolden, supra, 108

So. 3d at 1162; Deadwiller, supra, 834 N.W.2d at 373-75.

We further acknowledge that a few state high courts have

found that a defendant’s confrontation rights are violated when

66

the analyst who physically performed the tests at issue does not

testify, even when the testifying expert is a supervisor who

reviewed the data generated by the analyst and prepared the

report based on that data. See Martin v. State, 60 A.3d 1100,

1108-09 (Del. 2013) (finding Confrontation Clause violation

where lab manager who reviewed data and wrote report testified

about results of blood alcohol tests because manager did not

perform or observe tests and underlying test documents were

testimonial and admitted for truth under Bullcoming); Jenkins v.

United States, supra, 75 A.3d at 189-92 (finding violation where

testifying expert was lab supervisor who prepared report stating

DNA profile match but did not perform underlying tests; test

documents were testimonial because prepared for and used in

criminal prosecution). That approach has the advantage of

avoiding the possibility that the United States Supreme Court

may one day agree on the most exacting interpretation of

confrontation rights vis-à-vis multiple actors involved in

handling and testing evidence subject to all forms of forensic

testing. However, as noted earlier, that outcome is uncertain.

And taking the most rigid approach to confrontation rights in

the context of forensic reports carries practical drawbacks that

range from moderate to severe. It leaves no meaningful solution

where the analyst or analysts no longer work at the lab, are

unavailable, or are deceased. There is a real likelihood that

67

such dilemmas may arise in cold cases. Further, it cannot be

assumed that retesting a sample is invariably a possibility.

Moreover, demanding the in-court testimony of every analyst is

unnecessary for providing the defendant with meaningful cross-

examination on every testing process utilized in forensic

examinations.

We believe that the Supreme Court’s decisions and various

opinions in Melendez-Diaz and Bullcoming have left the states

room to apply the confrontation principles expressed in those

cases in meaningful ways, depending on the nature of the testing

that is involved and the independence of the analysis and review

of the person who testifies on the basis of verifiable test

results.

Here we are satisfied that the machine-calibrated, quality-

controlled gas chromatography/mass spectrometry tests performed

on defendant’s blood sample provided a sound basis for Dr.

Barbieri, as an expert in the fields of forensic toxicology and

pharmacology and a person knowledgeable about the testing

process employed, to opine on the drugs found in defendant’s

blood and their likely impact on her at the time the blood was

drawn. When a confrontation challenge is raised, the record

must show in detail the basis upon which the testifying witness

soundly has reached his or her conclusion. Here, defendant’s

opportunity to cross-examine Dr. Barbieri satisfied defendant’s

68

right to confrontation on the forensic evidence presented

against her.

VII.

The judgment of the Appellate Division is affirmed.

CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-

VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned)

join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a

separate, dissenting opinion.

69

SUPREME COURT OF NEW JERSEY

A-69 September Term 2012

072106

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIE L. MICHAELS, a/k/a LYNN

MICHAELS, JULIE LYNN, JOLINE

BROOKS, JODIE L. CALLOWAY,

JODIE CALLAWAY,

Defendant-Appellant.

JUSTICE ALBIN, dissenting.

In criminal cases, the State routinely retains scientists

and analysts to perform tests on a suspect’s blood to detect the

presence of drugs or alcohol. Today, the majority pronounces

that the accused has no constitutional right to confront the

scientist or analyst who actually performs the test. The

majority upholds a criminal conviction based on the expert

testimony of a laboratory “supervisor,” who did not perform,

participate in, or observe the analysis of defendant’s blood

test. Indeed, this “supervisor” was used as a conduit to pass

through to the jury the testimonial statements of the real test

analysts who were never subject to cross-examination.

The Sixth Amendment’s Confrontation Clause generally bars

the admission of an absent witness’s out-of-court testimonial

1

hearsay as a substitute for live in-court testimony when the

accused has not had the opportunity to cross-examine the absent

witness. Crawford v. Washington, 541 U.S. 36, 50-62, 124 S. Ct.

1354, 1363-71, 158 L. Ed. 2d 177, 192-99 (2004). The majority’s

opinion cannot be squared with that principle. More ominously,

the opinion is in direct conflict with Bullcoming v. New Mexico,

564 U.S. ___, ___, 131 S. Ct. 2705, 2713, 180 L. Ed. 2d 610, 619

(2011), a case in which the United States Supreme Court held

that the State violated the Sixth Amendment’s Confrontation

Clause by calling a non-testing analyst as a substitute witness

for the analyst who performed a blood analysis. However

confused the United States Supreme Court’s Confrontation Clause

jurisprudence may be in the wake of Williams v. Illinois, 567

U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) -- with its

plurality, concurring, and dissenting opinions -- it is doubtful

that any member of the Williams Court would adopt the approach

the majority is taking here.

The purpose of the Confrontation Clause is not to foster

expedient trial procedures, but to ensure that testimonial

evidence is tested in the crucible of cross-examination --

however time consuming or difficult that process may be. See

Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed.

2d at 199. Thus, chemical analysts who provide out-of-court

“testimony” through laboratory reports must be made available

2

for cross-examination. Bullcoming, supra, 564 U.S. at ___, 131

S. Ct. at 2716, 180 L. Ed. 2d at 622.

Curtailing confrontation rights is not the answer to the

uncertainty in federal jurisprudence. Although the majority

upholds the conviction in this case, it is chancing the reversal

of countless future convictions by rendering an opinion that may

fall below the minimum guarantees of the Sixth Amendment. The

majority may be charting a course that will collide with the

next United States Supreme Court case construing the

Confrontation Clause. Law enforcement, if properly directed,

can successfully prosecute cases while conforming to the

dictates of the Confrontation Clause. It has done so in the

past.

Whatever perceived benefits are achieved by the majority

opinion, they come at a high price -- the abandonment of basic

principles that underlie our Confrontation Clause jurisprudence.

I therefore respectfully dissent.

I.

A.

The majority opinion cannot be reconciled with the United

States Supreme Court’s recent Confrontation Clause

jurisprudence. One overarching principle remains clear from

that jurisprudence: the admission of testimonial statements

3

from witnesses absent from trial violates the Sixth Amendment’s

Confrontation Clause unless the witnesses are “unavailable,” and

“the defendant has had a prior opportunity to cross-examine”

them. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158

L. Ed. 2d at 197. A statement is “testimonial” if the primary

purpose of making the statement is to establish a fact as

evidence in a later criminal prosecution. Bullcoming, supra,

564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d at

620 n.6 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.

Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).

Applying that test in Melendez-Diaz v. Massachusetts, 557

U.S. 305, 310-11, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321

(2009), the Court held that a laboratory report identifying a

substance as cocaine was testimonial evidence and therefore its

admission at trial, without the testimony of the analyst who

prepared it, violated the Sixth Amendment’s Confrontation

Clause. The report in Melendez-Diaz was created for the

specific purpose of serving “as evidence in a criminal

proceeding.” Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at

2709, 180 L. Ed. 2d at 615.

Bullcoming presented a variation of the theme in Melendez-

Diaz. In Bullcoming, the Court held that the in-court testimony

of a scientist who did not conduct or participate in any

laboratory tests relevant to the case, but who read into

4

evidence the actual analyst’s test results contained in a

certified report, violated the Confrontation Clause. Id. at

___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. The facts in

Bullcoming are remarkably similar to the facts in the present

case.

In Bullcoming, the defendant was arrested for driving while

intoxicated (DWI). Id. at ___, 131 S. Ct. at 2710, 180 L. Ed.

2d at 616. A blood sample was taken from him at a hospital and

submitted for testing at a state laboratory. Ibid. A forensic

analyst operated a gas chromatograph machine to test

Bullcoming’s blood sample and determined his blood alcohol

content (BAC). Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at

617. The Supreme Court made the following observations about

the operation of the gas chromatograph machine: “‘[T]he analyst

must be aware of, and adhere to, good analytical practices and

understand what is being done and why.’” Id. at ___ n.1, 131 S.

Ct. at 2711 n.1, 180 L. Ed. 2d at 617 n.1 (quoting David T.

Stafford, Chromatography, in Principles of Forensic Toxicology

92, 114 (B. Levine ed., 2d ed. 2006)). Although the gas

chromatograph machine produces a printed graph, securing “an

accurate BAC measurement . . . is not so simple or certain.”

Ibid. Indeed, the “risk of human error [is not] so remote as to

be negligible.” Ibid.

5

The forensic analyst determined that Bullcoming’s BAC was

0.21, a level sufficient to support a conviction for aggravated

DWI. Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617–18.

The analyst was not called as a witness at Bullcoming’s trial.

Id. at ___, 131 S. Ct. at 2711–12, 180 L. Ed. 2d at 618.

Instead, the State called Gerasimos Razatos, a scientist also

qualified as an expert in the gas chromatograph machine but who

did not participate in testing Bullcoming’s blood. Id. at ___,

131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live,

in-court testimony” about laboratory procedures, the machine’s

operation, and the results of the BAC test. Id. at ___, 131 S.

Ct. at 2713, 180 L. Ed. 2d at 619. In addition, the analyst’s

report was admitted as a business record. Id. at ___, 131 S.

Ct. at 2712, 180 L. Ed. 2d at 618.

The United States Supreme Court held that Razatos’s

surrogate testimony violated the Confrontation Clause because

Bullcoming did not have the opportunity to cross-examine the

forensic analyst who tested his blood. Id. at ___, 131 S. Ct.

at 2713, 180 L. Ed. 2d at 619. According to the Court, the

surrogate expert’s testimony “could not convey what [the

forensic analyst] knew or observed about the events his

[laboratory report] concerned, i.e., the particular test and

testing process he employed. Nor could such surrogate testimony

expose any lapses or lies on the certifying analyst’s part.”

6

Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Indeed,

at trial, Razatos admitted that “‘you don’t know unless you

actually observe the analysis that someone else conducts,

whether they followed th[e] protocol in every instance.’” Id.

at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L. Ed. 2d at 622 n.8

(alteration in original). Razatos, moreover, was unable to

testify why the forensic analyst was on unpaid leave. Id. at

___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Thus, the

defense could not ask “questions designed to reveal whether

incompetence, evasiveness, or dishonesty accounted for [the

forensic anaylst’s] removal from his work station.” Ibid.

The Supreme Court reached conclusions relevant to the facts

before us. First, “the comparative reliability of an analyst’s

testimonial report drawn from machine-produced data does not

overcome the Sixth Amendment bar.” Id. at ___, 131 S. Ct. at

2715, 180 L. Ed. 2d at 621. Second, the analysts who write

reports that the prosecution introduces must be made available

for confrontation even if they possess “‘the scientific acumen

of Mme. Curie and the veracity of Mother Teresa.’” Ibid.

(quoting Melendez-Diaz, supra, 557 U.S. at 319 n.6, 129 S. Ct.

at 2537 n.6, 174 L. Ed. 2d at 327 n.6).

In her concurring opinion, Justice Sotomayor noted that

Bullcoming would have been “a different case if, for example, a

supervisor who observed an analyst conducting a test testified

7

about the results or a report about such results.” Id. at ___,

131 S. Ct. at 2722, 180 L. Ed. 2d at 629. Razatos did not

observe the testing of the forensic analyst. Ibid.

B.

The facts before us are remarkably similar to those in

Bullcoming, and yet the majority reaches a diametrically

different result.

Here, defendant Julie Michaels was charged with vehicular

homicide, assault by auto, and related offenses stemming from a

head-on car collision. The State claimed that defendant was

under the influence of drugs at the time of the accident. At

the direction of a police officer, a sample of defendant’s blood

was taken at the hospital where she was treated. The Sussex

County Prosecutor’s Office forwarded the blood sample to NMS

Labs in furtherance of its criminal investigation. NMS Labs

submitted back a report entitled “STATE V. JULIE MICHAELS”

authored by forensic toxicologist Edward J. Barbieri, Ph.D.

The report revealed that defendant had concentrations of

cocaine and Xanax in her blood. According to Dr. Barbieri,

defendant’s “alertness, judgment, perception, coordination,

response time and sense of care and caution were impaired

rendering this individual unfit to operate a motor vehicle

safely.” The report failed to reveal that Dr. Barbieri did not

conduct, participate in, or observe any of the blood tests that

8

detected the drugs in defendant’s system. Dr. Barbieri’s

report, which was admitted into evidence, does not name the

analysts who conducted the test, although the discovery, which

is referenced by the majority and is not part of the record,

suggests that only two analysts were involved in the actual

testing. Other laboratory employees referred to by the majority

appear to be merely in the chain of custody.

Like in Bullcoming, the analysts here used a gas

chromatograph machine to test defendant’s blood sample. Like

Razatos in Bullcoming, Dr. Barbieri conceded that “there’s

always a human element” involved when a gas chromatograph

machine is operated. Like Razatos in Bullcoming, Dr. Barbieri

averred to the procedures that NMS technicians follow when

testing samples. Like Razatos in Bullcoming, Dr. Barbieri took

the test results of the analysts and merely parroted them before

the jury. Like Razatos in Bullcoming, Dr. Barbieri could not

testify about what the forensic analysts “knew or observed” when

they performed the “particular test and testing process,” nor

was he in a position to “expose any lapses” on the part of the

analysts. See id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at

622. Moreover, Dr. Barbieri does not fit within the example

given by Justice Sotomayor in her concurrence of a supervisor

who observed the testing performed by an analyst.

9

In sum, Dr. Barbieri, in his surrogate testimony, passed

through the testimonial statements of the analysts who actually

performed the tests on defendant’s blood, denying defendant her

right of confrontation. This is exactly what Bullcoming says

the Sixth Amendment prohibits. There are no meaningful

differences between the case before us and Bullcoming, except

the outcomes.

II.

The majority contends that, even though Dr. Barbieri

conducted none of the blood tests involved in this case, his

testimony is constitutionally admissible expert testimony under

N.J.R.E. 703. The majority concedes that the analysts’ “facts”

-- the tests they performed on defendant’s blood sample and the

results they recorded -- are testimonial statements. That Dr.

Barbieri relied on facts or data from the analysts in forming

his own opinion does not diminish the impermissible use of the

analysts’ testimonial statements, which were presented to the

jury. Those absent analysts’ tests, moreover, were offered for

their truth -- offered to prove that the substances in

defendant’s blood were cocaine and Xanax. Those tests were not

foundational, not calibrations of a machine, but were the very

tests that went to the heart of whether defendant was guilty of

the crimes charged. The majority allows the absent analysts’

10

testimonial statements to be passed through Dr. Barbieri to the

jury without cross-examination of the analysts.

The position taken by the majority has not only been

rejected in Bullcoming but also does not find support in either

the plurality opinion or dissenting opinion in Williams v.

Illinois. In Williams, supra, the Court divided over the

question of whether a DNA profile, prepared by a specialist who

did not testify, was offered for the truth of its contents. 567

U.S. at ___, ___, 132 S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99,

108 (plurality opinion). Here, the majority asserts that it is

not relying on Williams. The majority, moreover, does not

contest that the analysts’ tests results were offered for their

truth or that the results were testimonial in nature. No

justice in Williams suggested that passing testimonial

statements offered for their truth through a surrogate witness

would be acceptable under the Confrontation Clause.

It may be true that Dr. Barbieri gave an independent

opinion. But that opinion was formed by the testimonial

statements of the analysts who performed the tests. The State

cannot deprive the accused of the right to confront the analysts

by the use of a surrogate witness. The core purpose of the

Confrontation Clause is undermined when the accused cannot

confront those whose statements bear testimony against her.

11

The majority opinion will have far-reaching effects for

future cases involving laboratory tests that are critical to

criminal prosecutions. From this point forward, a laboratory --

regardless of how many scientists are employed there -- can

designate one forensic expert to testify at all trials, relying

on the tests of fellow scientists in which he has had no

involvement. The incentive will be to select as the expert

witness the best pitch person, the one who appears to have

walked out of Central Casting. This approach will destroy the

ability of the accused to have any meaningful opportunity to

cross-examine the persons who are actually bearing testimony

against her -- the actual chemists or analysts conducting the

tests.

III.

The majority acknowledges that courts throughout the

country are reading Williams and reaching divergent results. We

know that Williams is not the last word. If the United States

Supreme Court does not follow the path taken by the majority

today, and if prosecutors take the approach that providing fewer

confrontation opportunities is the better strategy, then

countless convictions may be jeopardized.

Prudence would dictate that when federal jurisprudence is

in a state of flux, a conservative approach is best. See State

12

v. O’Neill, 193 N.J. 148, 175 (2007) (affording protections to

accused under state law when “[t]he shifting sands of federal

jurisprudence provide no certainty concerning the standard that

might apply to the next set of slightly different facts”).

Cautious prosecutors can still place on the stand the chemist or

analyst who actually conducted the test and will not have to

worry about a United States Supreme Court decision upending a

conviction.

IV.

In the wake of the majority’s opinion, defendants will no

longer have the opportunity to cross-examine the analysts who

actually perform scientific tests -- no longer have the

opportunity to expose errors, lapses, and shortcomings in the

testing process. This is a backward step that, I believe,

violates the Sixth Amendment.

For the reasons expressed, I respectfully dissent.

13

SUPREME COURT OF NEW JERSEY

NO. A-69 SEPTEMBER TERM 2012

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JULIE L. MICHAELS a/k/a LYNN

MICHAELS, JULIE LYNN, JOLINE

BROOKS, JODIE L. CALLOWAY,

JODIE CALLAWAY,

Defendant-Appellant.

DECIDED August 6, 2014

Chief Justice Rabner PRESIDING

OPINION BY Justice LaVecchia

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY Justice Albin

CHECKLIST AFFIRM REVERSE

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 6 1

1