Amicus Curiae Brief — Jason Smith, Petitioner v. Arizona
Supreme Court briefDec 20, 2023
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No. 22-899
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------JASON SMITH,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The Court Of Appeals
Of The State Of Arizona, Division One
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE NATIONAL DISTRICT
ATTORNEYS ASSOCIATION AND FORTY-ONE
PROSECUTING ATTORNEY ASSOCIATIONS,
COUNCILS AND GOVERNMENT ENTITIES
IN SUPPORT OF RESPONDENT
---------------------------------♦--------------------------------ALBERT C. LOCHER
Counsel of Record
NATIONAL DISTRICT
ATTORNEYS ASSOCIATION
1400 Crystal Drive, Suite 330
Arlington, VA 22202
(703) 549-9222
lochera@sacda.org
Attorney for Amici Curiae
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
iii
INTEREST OF AMICI CURIAE .........................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
4
I.
Introduction ...............................................
4
II.
Under the Precedents of This Court There
Was No Confrontation Clause Violation......
6
III. A Rule Affecting When a Testifying Drug
Analyst May Rely on Work by Others Will
Affect Many Forensic Science Disciplines .... 12
A. Drug Analysis, Toxicology Analysis (Including Blood Alcohol), Autopsies, and
Forensic Sexual Assault Exams May All
Be Affected by Rules Affecting Reliance
on Work by Other Analysts ................... 12
B. The Field of DNA Evidence Presents
Special Complications with Respect to
Multiple Analysts being Relied on for
the Final Conclusion ........................... 15
IV.
Case Law Supports the Rule That a Testifying Expert May Rely on the Work of Analysts Who Have Not Testified .................. 23
V.
The New York and California Cases Cited
by Petitioner Do Not Indicate an Analyst
Cannot Rely on Material from a Non-Testifying Analyst ........................................... 29
CONCLUSION..................................................... 33
ii
TABLE OF CONTENTS – Continued
Page
APPENDIX
LIST OF CO-AMICI ............................................ App. 1
iii
TABLE OF AUTHORITIES
Page
CASES
Ackerman v. State, 51 N.E.3d 171 (Ind. 2016).............14
Bullcoming v. New Mexico, 564 U.S. 647
(2011) ....................................................... 6-12, 23-27
California v. Green, 399 U.S. 149 (1970) ......................4
Commonwealth v. Brown, 185 A.3d 316 (Pa.
2018) ........................................................................28
Commonwealth v. Greineder, 984 N.E.2d 804
(Mass. 2013), cert. denied, 571 U.S. 865 (2013) .......28
Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013),
cert. denied, 572 U.S. 1135 (2014) ..........................28
Crawford v. Washington, 541 U.S. 36 (2004) ...... 4, 5, 18
Davis v. Washington, 547 U.S. 813 (2006) ................ 7, 8
District Attorney’s Office v. Osborne, 557 U.S. 52
(2009) .......................................................................22
Marks v. United States, 430 U.S. 188 (1977) ............ 6, 7
Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009) ........................................................ 6-12, 24-27
People v. Dungo, 286 P.3d 442 (Cal. 2012)............ 31, 32
People v. John, 52 N.E.3d 1114 (N.Y. 2016) .... 16, 29, 30
People v. Jordan, 2023 NY Slip Op 05957, 2023
N.Y. Lexis 1897, 2023 WL 800 (11/20/23) ...............30
People v. Lopez, 286 P.3d 469 (Cal. 2012) ............. 31, 32
People v. Ortega, 2023 NY Slip Op 05956, 2023
N.Y. Lexis 1902, 2023 WL 8007098 (11/20/23) .......30
iv
TABLE OF AUTHORITIES – Continued
Page
People v. Sanchez, 374 P.3d 320 (Cal. 2016) ......... 30-31
State v. Gonzales, 274 P.3d 151 (N.M. Ct. App. 2012)........13
State v. Griep, 863 N.W.2d 567 (Wisc. 2015), cert.
denied, 577 U.S. 1061 (2016) ...................................27
State v. Manion, 295 P.3d 270 (Wash. App. 2013)........28
State v. Mattox, 890 N.W.2d 256 (Wisc. 2017),
cert. denied, 583 U.S. 932 (2017) ............................13
State v. Maxwell, 9 N.E.3d 930 (Ohio 2014), cert.
denied, 574 U.S. 1160 (2015) ...................................24
State v. McLeod, 66 A.3d 1221 (N.H. 2013) ................28
State v. Mercier, 87 A.3d 700 (Me. 2014), cert.
denied, 574 U.S. 840 (2014).....................................25
State v. Michaels, 95 A.3d 648 (N.J. 2014), cert.
denied, 574 U.S. 1051 (2014) ...................................28
State v. Ortiz-Zape, 743 S.E.2d 156 (N.C. 2013),
cert. denied, 572 U.S. 1134 (2014) ..........................24
State v. Roach, 95 A.3d 683 (N.J. 2014), cert.
denied, 575 U.S. 1028 (2014)...................................26
State v. Sauerbry, 447 S.W.3d 780 (Mo. 2014) ...........28
State v. Watson, 185 A.3d 845 (N.H. 2018) ........... 13, 25
United States v. Katso, 74 M.J. 273 (C.A.A.F.
2015), cert. denied, 136 S. Ct. 1512 (2016) ....... 27, 28
United States v. Turner, 709 F.3d 1187 (7th Cir.
2013), cert. denied, 572 U.S. 1134 (2014), pet.
rhg. denied, 573 U.S. 980 (2104) .............................23
v
TABLE OF AUTHORITIES – Continued
Page
Williams v. Illinois, 567 U.S. 50 (2012) ....... 7, 8, 11, 14,
.......................................................... 16, 18, 23-27, 31
CONSTITUTIONAL PROVISION
U.S. Constitution, Sixth Amendment, Confrontation Clause ............ 2-9, 11, 12, 18, 19, 23-28, 30-33
OTHER AUTHORITIES
Davids, Sharice “Davids Announces Federal
Grant to Help Eliminate Kansas’ DNA Backlog,” Office of U.S. Rep. Sharice Davids,
9/15/2023, online at: https://davids.house.gov/
media/press-releases/davids-announces-federalgrant-help-eliminate-kansas-dna-backlog .............21
Hassan, Anita “Harris County suspends testing
of ‘touch DNA’ evidence in property crimes,”
Houston Chronicle, 7/4/2015, online at:
https://www.houstonchronicle.com/news/houstontexas/houston/article/Harris-County-suspendstesting-of-touch-DNA-6366709.php........................20
Jackson, Kyeland “Citing backlog of 3,800 DNA
cases, law enforcement officials push for legislative support,” Star Tribune, 2/28/23, online
at: https://www.startribune.com/citing-backlogof-3800-dna-cases-law-enforcement-officialspush-for-legislative-support/600255138/ ................21
vi
TABLE OF AUTHORITIES – Continued
Page
Mnookin, Jennifer and Kaye, David (2013) “Confronting Science: Expert Evidence and the
Confrontation Clause,” The Supreme Court
Review, University of Chicago Press, Vol. 2012,
Article 4 (Lexis cite 2013 S.Ct.Rev. 99).............. 12, 19
National Institute of Justice, National Best
Practices for Improving DNA Laboratory Process Efficiency, United States Department of
Justice (2022) .................................................... 17, 20
Samples, et al., “The Rotating Analyst – The
NYC OCME Casework System,” Progress in
Forensic Genetics 8, Proceedings of the 18th
International ISFH Congress, Sensabaugh,
et al., editors, Elsevier (2000) .................................17
Taylor, Michelle, “DA Says City Can’t Prioritize
Murder Cases Because of Crime Lab Backlog,” Forensic,
9/1/2023,
online
at:
https://www.forensicmag.com/602529-DASays-City-Can-t-Prioritize-Murder-Cases-Because-of-Crime-Lab-Backlog/ ....................................21
U.S. Department of Justice, Office of the Inspector General, “The FBI DNA Laboratory: A review of Protocol and Practice Vulnerabilities,”
May 2004 .................................................................16
1
INTEREST OF AMICI CURIAE1
The National District Attorneys Association
(NDAA) is the oldest and largest association of prosecutors in the country with over 5,500 members, including state and local prosecutors’ offices from both urban
and rural districts, and both large and small jurisdictions. NDAA serves as a nationwide resource center for
research, training, and knowledge, working to promote
equitable administration of justice. NDAA routinely
provides policy advice and testimony to Congress and
the Executive Branch on criminal justice issues, and
amicus curiae briefs to the United States Supreme
Court on cases impacting prosecutors throughout the
country, to maintain a high standard of professional responsibility and ethics.
Co-amici (Appendix below) are forty-one prosecuting attorney associations, councils, entities, or government entities with prosecutorial responsibilities and
interests. Co-amici are dedicated to unbiased and equitable administration of justice, achieved through
high standards of advocacy, ethics, and compliance
with constitutional and legal mandates.
1
Pursuant to Supreme Court Rule 37.2, amicus gave counsel
of record for each party written notice of the intention of amicus
NDAA to file this brief at least 10 days in advance of the filing.
Under Rule 37.6, amicus states that this brief was not authored
in whole or in part by counsel for any party, and no person other
than amicus curiae, its members or its counsel made any monetary contribution intended to be used in the preparation or submission of this brief.
2
Your amici have extensive experience in prosecution of criminal cases involving forensic scientific evidence, and the issues presented in the case at bar. Your
amici believe this experience, and the arguments of
amici, will be helpful to this Court in its deliberations
and decision in this case.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
This case, arising under the Confrontation Clause
of the Sixth Amendment, deals with whether and to
what extent a testifying forensic scientist can rely on
the work, data, and analysis produced by another scientist (the underlying analyst), reach his or her own
opinion and conclusion on an ultimate matter, and testify to that in a criminal trial, without the underlying
analyst having testified. Under the precedents of this
Court, the standard for whether the underlying matter
is such that the underlying analyst must testify is
whether the matter is “formalized testimonial materials.” Here, forensic scientist Longoni testified to his
own conclusion that the items in question were illegal
drugs. He reviewed and based his opinion on materials
about the testing done by the original, underlying analyst Rast, Rast’s report and laboratory notes, and
Rast’s conclusion, but those were not admitted in evidence. Since the materials Longoni reviewed and relied on were not formalized testimonial materials, his
testimony did not violate the Confrontation Clause.
3
A rule that Longoni’s testimony violated the Confrontation Clause would affect not only drug analysis
evidence, but a number of other forensic science disciplines. This is so in part because it is common for original analysts, for a variety of reasons, to be unavailable
at the time of trial. It is also common for the original
analyst to arrive at his/her conclusions based on work,
evidence processing, and data from other technicians
or scientists. Of particular concern is DNA evidence
analysis. Many large, high-volume laboratories conduct DNA analysis in a batch, assembly line process,
improving efficiency, and building-in cross-review and
checks. A rule in which all or many underlying analysts would be required to testify would not only burden laboratory operations and court proceedings. It
would also discourage laboratories from efficient and
multi-analyst interactive approaches, which are part
of the nature of scientific inquiry, and help ensure better scientific outcomes overall.
A substantial number of courts and cases, having
considered the issue, have concluded an analyst may
testify to his or her own opinion, based on the material
and data produced by others, without offending the
Confrontation Clause when the underlying analyst
has not testified. This body of case law extends across
many jurisdictions, covers many different types of scientific evidence, and supports the conclusion the Confrontation Clause does not require something more
than what scientist Longoni testified to in this case.
Finally, petitioner’s implied suggestion that the
large jurisdictions of New York and California have
4
restricted forensic science experts from giving their
own opinions based on the work of others is not born
out by a review of cases from those jurisdictions.
---------------------------------♦---------------------------------
ARGUMENT
I.
Introduction
As Justice Harlan observed in California v. Green,
399 U.S. 149 (1970), “ . . . the Confrontation Clause
comes to us on faded parchment. History seems to give
us very little insight into [its] intended scope. . . .” 399
U.S. at 173–174 (Harlan, J., concurring.) However true
that may be of evidence by “conventional witnesses” or
“fact witnesses” (i.e., eyewitnesses, crime victims, other
percipient witnesses, co-defendants who have made
out-of-court statements), and however challenging
some circumstances with those types of witnesses may
be, there is at least some historical precedent for how
such evidence was viewed and dealt with in the founding era, when the Confrontation Clause was adopted.
Thus, in Crawford v. Washington, 541 U.S. 36
(2004), dealing with an out-of-court statement by an
assault (domestic violence) victim who did not testify
at trial, this Court was able to examine the founders’
concerns about abuses in English criminal law matters
to conclude that the clause focuses on “testimony.”
Evidence in the nature of ex parte examinations, and
examinations of witnesses who were unavailable
without there having been a prior opportunity for crossexamination, were the type of “testimonial matter”
5
covered by the Confrontation Clause. The historical
abuses of concern to the founders about percipient,
fact, or accusatory witnesses informed this Court as to
how far the clause went, giving an adequate basis to
determine how the victim’s statement should be evaluated for confrontation purposes. See Crawford, supra,
541 U.S. at 42–56.
It is not so for forensic scientific evidence. Unlike
evidence from ordinary, percipient or fact witnesses,
forensic science as we deal with it today was not a part
of criminal investigations and proceedings in the
founding era; it left no trail in the judicial records. In
the late 18th century, those proposing the Confrontation Clause had no conception of how laboratory and
physical forensic science would develop, how it would
be presented in court, and the importance it would
have in the criminal justice system. One will search in
vain for sources revealing how such evidence was handled by courts in the founding era, but it will not be
found. It is just as well. We should not expect to find
hidden gems about scientific evidence from a time
when one of the principal treatments for illness was
bleeding the patient.
That being said, this Court is now faced with how
the Confrontation Clause should apply to forensic science evidence, based on previous precedents, current
confrontation analysis, and the practicalities of applying these in a manner that satisfies the historic and
core concerns of confrontation in the context of modern
scientific practices and evidence.
6
II.
Under the Precedents of This Court There
Was No Confrontation Clause Violation
At the outset, it is important to recognize the “primary purpose” test for measuring statements under
the Confrontation Clause as applied to the work of
underlying analysts is not the holding of the Court in
Bullcoming v. New Mexico, 564 U.S. 647 (2011), and
does not constitute the standard this Court has
adopted for underlying analyst material in forensic science cases. Justice Ginsberg’s Bullcoming opinion,
which is in part the opinion of the Court and in part a
plurality opinion, sets out the primary purpose test in
footnote 6, where she states one must look to whether
the evidence statement or report had as a “primary
purpose” the “establish[ing] or prov[ing] [of ] past
events potentially relevant to later criminal prosecution.” 564 U.S. at 659, fn. 6. Justice Thomas, the fifth
vote for most of Justice Ginsberg’s opinion, did not join
footnote 6. See 564 U.S. at 651, opening line and dagger
footnote. Thereby, Justice Thomas affected the rationale holding of the majority.
Without five votes for the “primary purpose” rationale, one must look to the lowest common denominator of the rationale accepted by the majority, which
requires focus on whether the evidence at issue
amounts to “formalized testimonial materials.” See
Marks v. United States, 430 U.S. 188, 193 (1977). Justice Thomas made clear in his concurring opinion in
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009),
that in his view, for evidence to be covered by the Confrontation Clause, it must be “formalized testimonial
7
materials.” See 557 U.S. at 329–330 (Thomas, J., concurring). He reiterated that position in Williams v.
Illinois, 567 U.S. 50 (2012), in his concurring opinion.
See 567 U.S. at 103, 110–118 (Thomas, J., concurring).
Justice Thomas had previously dissented from the
use of the “primary purpose” test for confrontation
analysis in Davis v. Washington, 547 U.S. 813 (2006),
proposing instead a rule based on whether the evidence was “formalized testimonial material.” See concurring and dissenting opinion of Justice Thomas, 547
U.S. at 834–842. “Formalized testimonial material” as
Justice Thomas describes it is a subset of “primary purpose” material. The “primary purpose” view does not
represent the opinion of the Court in Bullcoming, because it did not command five votes. Since Justice
Thomas agreed with most of Justice Ginsberg’s opinion
and her disposition, but not the “primary purpose” portion, clearly only the “formalized testimonial materials” subset had the agreement of a majority of the
Court. Justice Thomas’s view is thus the lowest common denominator and establishes the high-water
mark for the reach of the Confrontation Clause in forensic lab evidence cases. See Marks v. United States,
supra, 430 U.S. at 193.
Williams v. Illinois, supra, confirms this analysis.
Counting votes in that case, Justice Kagan’s dissenting
opinion reaffirms her support for the primary purpose
test, but only commanded four votes. 567 U.S. at 118–
141 (Kagan, J., dissenting). Justice Thomas in his concurring opinion rejects that test, again adhering to
8
“formalized testimonial materials.” See 567 U.S. at
103, 110–118 (Thomas, J., concurring).
Thus, through three decisions (Melendez-Diaz,
Bullcoming, and Williams), the lowest common denominator, which constitutes the high-water mark for the
reach of the Confrontation Clause when considering
underlying analyst material in forensic laboratory evidence situations, is “formalized testimonial materials.”
The meaning of “formalized testimonial materials”
as Justice Thomas has used that term can be found in
his concurring and dissenting opinion in Davis. Justice
Thomas explained that the framers intended the Confrontation Clause to prevent the practice employed
under the Marian statutes in 16th century England,
when witnesses were examined outside the presence of
the court, the examinations were transcribed, and the
transcripts were then commonly submitted later to the
court as part of the trial, without the witnesses testifying. 547 U.S. at 835–836. Based on this historical
analysis of the Confrontation Clause, Justice Thomas
concluded that the clause was directed only at “formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.” Id., at 836.
Davis involved two joined cases. In one, a police
officer responding to a domestic violence call questioned a woman. The questioning was in the nature of
a conversation, not a formalized dialogue, the woman
was not Mirandized, she was not in custody, and there
was no other indication of solemnity or formality in the
9
taking of her statement. Justice Thomas concluded
this statement did not have the solemnized or formalized character of an affidavit, deposition, prior testimony, or confession, and thus was not covered by the
Confrontation Clause. 547 U.S. at 835–842. Justice
Thomas explained:
Affidavits, depositions, and prior testimony
are, by their very nature, taken through a formalized process. Likewise, confessions, when
extracted by police in a formal manner, carry
sufficient indicia of solemnity to constitute
formalized statements and, accordingly, bear
a “striking resemblance,” . . . to the examinations of the accused and accusers under the
Marian statutes.
547 U.S. at 837.
He went on to observe that although many interactions between witnesses and law enforcement officials
could have adverse legal consequences for the speaker
who is dishonest, that “ . . . does not, however, render
those statements solemnized or formal in the ordinary
meaning of those terms.” 547 U.S. at 838, fn. 3.
When faced with the “certificates of analysis” admitted without any live witness testimony in Melendez-Diaz, Justice Thomas concluded they were “quite
plainly affidavits,” and thus “formalized testimonial
materials.” (Thomas, J., concurring, 557 U.S. at 329–
330). While a live laboratory witness testified in Bullcoming, not only had he not performed the analysis,
but he did not testify to his own opinion. Instead, he
10
simply testified to the lab report prepared by the original analyst, making the evidence comparable to the
Melendez-Diaz certificates.
The same analysis and conclusion cannot be applied to the laboratory opinion evidence of forensic scientist Longoni in the case at bar. Unlike in MelendezDiaz and Bullcoming, Longoni reviewed the records of
the chain of custody for the items tested, and the notes
of the testing conducted by the original analyst Rast.
As both the testimony of Longoni and the lab documents included in the record show, these notes reflect
the specific observations made and tests performed by
Rast, including observations of the material, notation
of the amount/weight, notation of the appearance of
the material (including observations made under a microscope for the vegetable material), the administration of various reagent and dye tests, which gave visual
displays of particular colors when certain chemicals
were applied; the procedures used in testing the materials in an automated gas chromatograph – mass
spectrometer (GC-MS); and the charts the GC-MS produced in each instance. Appendix to Petition for Certiorari (hereafter Pet. App.), Appendices G, H and I, pp.
27a–126a. The GC-MS charts reflected the “chemical
signature” of the particular controlled substances
(marijuana and methamphetamine). The GC-MS
charts cover 18 pages in the lab file, with a total of
35 GC-MS charts. Pet. App. pp. 108a–126a. Longoni
then evaluated all these elements together, and
reached, based on his training and experience, his own
11
expert opinion as to what the substances were, and
that they were in a usable quantity.
The raw data and test indicators in the lab file
would be meaningless to a non-expert. For instance,
the fact that the application of a Marquis reagent produced an orange-brown reaction, and the application of
sodium nitroprusside produced a blue reaction, would
mean nothing to a lay person. See Pet. App. p. 97a.
Likewise, to a lay observer, the GC-MS charts with certain peaks would mean nothing. But a trained, experienced forensic scientist, like Longoni, can take those
pieces of information, combine them, and reach his
own opinion as to the chemical nature of the substance.
As to the identity of the items examined being the
same items the police seized, and thus relevant to the
case being tried, both Rast and Longoni had in the case
file the same chain of custody information, and thus
could reach the same conclusion on that point. Pet.
App. pp. 100a–105a; 127a.
From this review of Longoni’s testimony, and the
laboratory records on which he based his opinions, the
following points can be had. First, the individual items
of information reflected in lab notes and GC-MS
printouts do not amount to “formalized testimonial
materials,” the standard from the opinions in Melendez-Diaz, Bullcoming and Williams, as discussed
above. Thus, no Confrontation Clause violation occurred. Also, unlike in Melendez-Diaz and Bullcoming,
the conclusion report of the original analyst Rast (i.e.,
that the materials were marijuana and methamphetamine) was not put into evidence in the case at bar.
12
What was put into evidence, by way of live witness testimony subject to cross-examination, was the independent opinion of Longoni. This was not done in
Melendez-Diaz (where no live witness testified) nor in
Bullcoming (where the live witness who testified did
not arrive at and testify to his own opinion). Thus,
neither Melendez-Diaz nor Bullcoming dictate reversal
in this case.
III. A Rule Affecting When a Testifying Drug
Analyst May Rely on Work by Others Will
Affect Many Forensic Science Disciplines
A. Drug Analysis, Toxicology Analysis (Including Blood Alcohol), Autopsies, and
Forensic Sexual Assault Exams May All
Be Affected by Rules Affecting Reliance
on Work by Other Analysts
What Longoni did in the instant case – review
data and information produced by another, and reach
his own conclusion based on that data – happens
across a variety of forensic science disciplines in the
ordinary processing of evidence. This is not surprising. It is how science works. Commonly, scientific
knowledge comes not from an individual or solo enterprise, but rather a collective one, where scientists and
experts rely on and build from facts, data, opinions and
test results of others. Mnookin, Jennifer and Kaye,
David (2013) “Confronting Science: Expert Evidence
and the Confrontation Clause,” The Supreme Court
Review, University of Chicago Press, Vol. 2012, Article
4 (Lexis cite 2013 S.Ct.Rev. 99, at 102–103, 149, 151).
13
For this reason, a ruling from this case will not just
affect a single, garden variety drug analysis matter. It
will reverberate across many forensic science disciplines.
Aside from cases involving drug analysis, other
forensic science evidence may be affected by the same
impediment to using the original analyst that arose in
the case at bar. The original analyst may no longer be
employed by the original crime laboratory, having
moved to a different job, perhaps to a different state,
perhaps hundreds or even thousands of miles away.
This can affect the availability of analysts not just in
drug analysis cases, but also in blood alcohol or other
toxicological matters, as well as autopsies. See e.g.,
State v. Gonzales, 274 P.3d 151 (N.M. Ct. App. 2012),
where the original autopsy pathologist was no longer
employed by the medical examiner’s office in New
Mexico, and had moved to Washington state.
In addition, in some laboratory situations, the
same samples may undergo testing by multiple analysts in different steps, in the testing for different substances. See e.g., State v. Watson, 185 A.3d 845 (N.H.
2018), a toxicology case, where multiple analysts were
involved in the testing of samples from the body of a
deceased. Similarly, State v. Mattox, 890 N.W.2d 256
(Wisc. 2017), cert. denied, 583 U.S. 932 (2017), involved
a situation where the autopsy pathologist relied on a
toxicology analysis that he received, but had not personally performed. These scenarios are analogous to
the multiple analyst situation with DNA discussed in
14
detail below, although with a lesser degree of complications than found in that area.
And it may not simply be a matter of the original
expert having moved to a different job or location. In
recent years, law enforcement agencies have committed significant resources, often with great success, to
investigating and solving old, “cold” murder cases. But
if the case arose years, perhaps decades ago, the
pathologist who conducted the original autopsy may no
longer be living. Ackerman v. State, 51 N.E.3d 171 (Ind.
2016), involved the death of a 21-month-old child.
When the death originally occurred, there was no prosecution, but over three decades later, after further investigation, a suspect was charged. By then, the
original pathologist had died. A rule that another qualified expert could not examine the original autopsy
notes, diagrams, and photos, reach his or her own opinion, and testify to that opinion, would impose a functional statute of limitations on murder, a crime for
which there is no statute of limitations. See discussion
by Breyer, J., concurring in Williams v. Illinois, supra,
567 U.S. at 97–98.
Further, if the original analyst cannot be made
available, re-testing the sample is not always an option. In many situations (some DNA cases, some drug
cases, some sexual assault forensic examinations) the
original sample may have been so small that it was entirely consumed in the original testing. In a forensic
sexual assault examination, injuries may be healed. In
autopsy cases, the body may no longer be available,
and if it can be made available by exhumation (not
15
always a possibility), it will certainly not be in the
same condition.
B. The Field of DNA Evidence Presents
Special Complications with Respect to
Multiple Analysts being Relied on for
the Final Conclusion
One discipline that would be significantly impacted by a broad ruling in the instant case is DNA.
DNA analysis as currently performed involves several
steps: (1) Examination, to determine if biological material (which would include cells with DNA) is present;
(2) Extraction, where chemical reagents are applied to
break open the cells and their nuclei, to release the
DNA; (3) Quantification, which is measuring the
amount of DNA to ensure there is a sufficient amount
for further testing; (4) Amplification, which involves
the use of polymerase chain reaction (PCR) in a machine using an automated thermal cycling process to
create additional “copies” of particular loci (genes), producing an enhanced quantity, as well as “tagging” the
specific genes in question (attaching a molecule that
can be visually detected in the next step); (5) Electrophoresis, whereby the material is passed through a
gel medium subject to an electrical field, causing it to
migrate through the gel, but at varying speeds, depending on the size of the individual molecule, since
different alleles (forms of the gene) are of different
sizes, and therefore migrate through the gel at different speeds, then being read by a sensor which detects
the tags, the machine producing a line graph visual
16
depiction of the genetic material (electropherogram),
with peaks showing the presence and length of various
DNA strands at different loci; and (6) Report that
identifies the various alleles (genes) present, compares
those to the known frequency of the alleles in the
population, then computes the overall probability or
likelihood of an individual having this particular combination of genes. See generally, Williams v. Illinois,
567 U.S. 50 (2012), concurring opinion of Breyer, J.,
Appendix, 567 U.S. at 99–102, with sources compiled
and cited there; U.S. Department of Justice, Office of
the Inspector General, “The FBI DNA Laboratory: A
review of Protocol and Practice Vulnerabilities,” May
2004, p. 29; People v. John, 52 N.E.3d 1114 (N.Y. 2016)
at 1117–1118.
While in some crime labs with DNA sections, all
the steps for a particular sample, or in a particular
case, are done by a single analyst, that is not true in
all laboratories. Many large labs, for purposes of capacity and efficiency, employ a case processing structure
where each of the steps is performed by a different
analyst, in what may be described as an assembly line.
In some laboratories, even sub-parts within the basic
delineated steps may be further divided up, with more
than one analyst or technician performing individual
sub-parts of the procedure. See e.g., “The FBI DNA Laboratory. . . .” supra, at pp. 25, 29; People v. John, supra,
52 N.E.3d at 1118, regarding the New York City, Office
of the Chief Medical Examiner system. High volume
private laboratories providing forensic DNA analysis
on contract, such as Bode Forensics, use such a system.
17
The purpose of such batch processing, assembly line
procedures is to achieve high throughput without sacrificing quality. Samples, et al., “The Rotating Analyst
– The NYC OCME Casework System,” Progress in Forensic Genetics 8, Proceedings of the 18th International
ISFH Congress, Sensabaugh, et al., editors, Elsevier
(2000), at p. 620. As recently as May 2022, the National
Institute of Justice released a report on best practices
for DNA laboratory efficiency, recommending adoption
of a team approach to casework where possible, the use
of batching and automated processes, and the batch review of data. National Institute of Justice, National
Best Practices for Improving DNA Laboratory Process
Efficiency, United States Department of Justice (2022),
at pp. 14–15, 21–24, 54.
In criminal investigations, at some point at least
two samples will have been processed – the questioned
or unknown evidence sample recovered from the crime
scene or the victim, and the known or suspect sample,
taken from the suspect – so the number of persons performing all the steps for a given case must be doubled
(except that, depending on the circumstance, the analyst performing the final step of identifying the alleles
and their frequencies, and computing the match likelihood, may be the same person). Thus, in the end, it will
be common for ten technicians or analysts, and quite
possibly more, to be involved in the lab work that arrives at conclusions regarding the comparison of forensic crime profiles to known profiles, including whether
a particular person is included or excluded as a potential DNA donor to a forensic sample in a particular
18
case. In private communication, the Westchester N.Y.
Forensic Lab reports that commonly eight criminalists
will work on a case, plus additional numbers for supervisors and technical review. The New York City Office
of the Chief Medical Examiner (a larger laboratory) reports that 14 to 30 criminalists may work on a case,
depending on the nature of the case.
Turning to the Confrontation Clause, the implications of a strict, “all analysts must testify” approach to
DNA evidence is obvious. Writing in concurrence in
Williams v. Illinois, supra, Justice Breyer pointed out
that “ . . . there would seem often to be no logical stopping place between requiring the prosecution to call as
a witness one of the laboratory experts who worked on
the matter and requiring the prosecution to call all of
the laboratory experts who did so.” 567 U.S. at 89
(Breyer, J., concurring).
Justice Kagan, in her dissenting opinion in Williams, acknowledged the issue, without giving an indication as to how it might be resolved, writing: “In the
event that some future case presents the multipletechnician issue, the Court can focus on “the broader
‘limits’ question” [of how many analysts must be
called] that troubles Justice Breyer.” 567 U.S. at 134,
fn. 4.
With Crawford expressly declining to give a comprehensive definition of what is “testimonial” for Confrontation Clause purposes (541 U.S. at 68), and this
Court not having settled on a definition of that term
for forensic science evidence, it is not at all clear what
19
principled distinction may be made in the forensic science realm to distinguish the work of one scientist
as being testimonial (and thus subject to the Confrontation Clause), and the work of underlying scientists,
whose observations, tests, and results are essential to
the conclusion of the final analyst. It is not satisfactory
to simply say, “All analysts will not have to testify,”
without a principled legal reason explaining why that
is so, and how the distinction is to be made between
those who must testify and those who need not. See
Mnookin and Kaye, “Confronting Science: Expert Evidence and the Confrontation Clause,” supra, Lexis cite
2013 S.Ct.Rev. at 152–153.
The relevance of this issue to the case at bar is
that what Longoni did in this case (review the materials, notes, testing and data done by another analyst,
then rely on them to reach his own opinion) does not
seem different from what the final analyst will have
done in a DNA case, reviewing and relying on the work,
notes, and testing done before by analysts who conducted one of the preceding steps in the DNA analysis.
Any ruling here must take into account the reverberations it will have across the criminal justice system.
If in fact all ten or more analysts involved in a particular DNA case analysis must testify, then disruption
of both laboratory processes and court proceedings
will result. On the other hand, if such a rule forces
laboratories to abandon the efficiencies of the team
assembly line process, then laboratory production and
throughput of cases will be negatively affected. Such a
consequence will have severe negative consequences.
20
As DNA has become an increasingly powerful investigative tool, the demand for DNA testing has risen.
The 2022 NIJ Best Practices report stated:
It may not be surprising, then, that the demand for DNA forensic testing has outstripped the capacity of many laboratories.
According to a U.S. Department of Justice report, the number of forensic biology casework
requests received by publicly funded crime
laboratories rose 28% from 2009 to 2014.
Data from NIJ show that state and local government laboratories participating in the
agency’s DNA Capacity Enhancement and
Backlog Reduction program have experienced
a similar trend: From 2011 to 2017, the number of DNA submissions that were not processed within 30 days rose by 85% – even as
the laboratories consistently processed more
requests over time.
National Best Practices for Improving DNA Laboratory
Process Efficiency, supra, at p. 9.
Such backlogs and delays have an impact in the
real world of cases. At one point, in Texas the Harris
County Institute of Forensic Services suspended the
analysis of DNA in certain types of cases due to burgeoning demand pitted against the capacity of the
laboratory. Hassan, Anita, “Harris County suspends
testing of ‘touch DNA’ evidence in property crimes,”
Houston Chronicle, 7/4/2015, online at: https://www.
houstonchronicle.com/news/houston-texas/houston/
article/Harris-County-suspends-testing-of-touch-DNA6366709.php. More recently (September 2023) a state
21
law in the same jurisdiction mandating priority for
murder cases in trial court assignments was declared
to have no practical meaning due to the backlog for
laboratory services. The backlog specifically for DNA
analysis stood at over 1,000 cases. Taylor, Michelle “DA
Says City Can’t Prioritize Murder Cases Because of
Crime Lab Backlog,” Forensic, 9/1/2023, online at:
https://www.forensicmag.com/602529-DA-Says-CityCan-t-Prioritize-Murder-Cases-Because-of-Crime-LabBacklog/. In February 2023, the backlog for DNA case
analysis in Minnesota crime labs stood at 3,800 cases.
Jackson, Kyeland, “Citing backlog of 3,800 DNA cases,
law enforcement officials push for legislative support,”
Star Tribune, 2/28/23, online at: https://www.startribune.
com/citing-backlog-of-3800-dna-cases-law-enforcementofficials-push-for-legislative-support/600255138/. The
Kansas Bureau of Investigation has dealt with DNA
backlogs for over two decades, with the statewide backlog at times exceeding 31,000 cases. Davids, Sharice,
“Davids Announces Federal Grant to Help Eliminate
Kansas’ DNA Backlog,” Office of U.S. Rep. Sharice
Davids, 9/15/2023, online at: https://davids.house.gov/
media/press-releases/davids-announces-federal-granthelp-eliminate-kansas-dna-backlog.
A rule that forces crime laboratories to restructure, abandoning efficient lab practices, will only compound these problems. It is also not in the best interest
of the public or an effective criminal justice system for
another reason. The adoption of lab procedures which
diminish, rather than enhance, the teamwork and
mutual interaction of analysts will diminish the very
22
things which are not only an inherent part of science,
but also help ensure the accuracy and reliability of the
process. Fostering systems where individual forensic
scientists operate in silos, rather than interacting together, will certainly increase the chances for negligence or even misconduct to go undetected. It is the
interaction and review by others which assures quality
control in the first instance, and brings negligence or
misconduct to light. A rule which pushes laboratories
away from an interactive, multi-analyst team approach will move in the opposite direction from practices that ensure better quality and reliability.
As this Court has recognized, DNA testing has
an unparalleled ability to both identify the guilty and
exonerate the innocent. District Attorney’s Office v.
Osborne, 557 U.S. 52, at 55 (2009). Imposing processes
that make DNA analysis less efficient will naturally
affect both sides of that public interest – the interest
of crime victims or their survivors in seeing that the
guilty are identified and brought to justice, and the interest of the innocent who are suspected or accused in
being exonerated. Public agencies involved in the criminal justice system have an interest in seeing that their
efforts are directed against the correct perpetrators.
Prosecutors and the general public have an interest
in seeing that justice is done. A rule which impedes,
rather than encourages, prompt and efficient case processing will not serve any of these interests.
23
IV. Case Law Supports the Rule That a Testifying Expert May Rely on the Work of Analysts Who Have Not Testified
Substantial, well-reasoned case law supports the
conclusion that an expert other than the original analyst, or a final analyst in cases where a multi-step process involved multiple analysts, may, having reviewed
and relied on the work of others, reach his or her own
opinion, and testify to that opinion, without offending
the Confrontation Clause.
United States v. Turner, 709 F.3d 1187 (7th Cir.
2013), cert. denied, 572 U.S. 1134 (2014), pet. rhg. denied,
573 U.S. 980 (2104) is such a case. The defendant on
multiple occasions sold crack cocaine to an undercover
officer. At the time of trial on federal drug charges, the
original analyst Hanson was on maternity leave. Robert Block, a supervisor at the crime lab who had peer
reviewed her work, then reviewed Hanson’s lab notes
and data, reaching his own opinion that the material
was cocaine. After conviction at trial, Turner’s loss on
appeal in the 7th Circuit was pending his petition for
certiorari in the U.S. Supreme Court while Williams v.
Illinois was being heard, and was then remanded to
the Circuit Court for reconsideration in light of Williams once that case was decided. On remand, the Circuit Court concluded that Block’s testimony about his
own opinion and conclusions, reached based on his review of Hanson’s notes and data, did not violate the
Confrontation Clause, noting that this amounted to
the bulk of Block’s testimony. The Court observed that,
unlike in Bullcoming, Hanson’s notes, report and test
24
results were not entered into evidence, either as
marked exhibits, or as part of the testimony of Block.
The court did state that two of Block’s statements in
his testimony (that Hanson used proper procedures
and that his own conclusion was the same as hers)
appeared to be improper but concluded that if those
statements did violate the Confrontation Clause, in the
circumstances of the case it was harmless.
State v. Ortiz-Zape, 743 S.E.2d 156 (N.C. 2013),
cert. denied, 572 U.S. 1134 (2014), was a prosecution
for possession of cocaine. The seized drugs were tested
at the crime lab by analyst Mills. At trial, Mills did not
testify, chemist Ray did. Ray relied on the lab notes and
records, and the machine printouts from the GC-MS,
and testified to her opinion. The report of Mills was
not admitted in evidence. After conviction, on appeal
to the North Carolina Supreme Court, that court reviewed Melendez-Diaz, Bullcoming, and Williams. It
concluded that the defendant’s Confrontation Clause
rights had not been violated, stating: “[Ray’s] expert
opinion, from Ray’s own analysis of the data, constituted the substantive evidence being presented
against defendant. . . . Therefore, the testifying expert
was the witness whom defendant had the right to confront.” 743 S.E.2d at 164
State v. Maxwell, 9 N.E.3d 930, 949 (Ohio 2014),
cert. denied, 574 U.S. 1160 (2015) was a murder case.
The murder took place in Cleveland, Ohio, and the
autopsy was conducted there by Dr. Dolinak. By the
time of trial, Dr. Dolinak had moved to become the
medical examiner for Austin, Texas. The prosecution
25
called at trial Dr. Felo, who reviewed the autopsy report, photos, x-rays, and tissue slides. He reached his
own independent judgment as to the manner and
cause of death, which he testified to at trial. The defendant was convicted. On appeal to the Ohio Supreme
Court, he raised the Confrontation Clause. After reviewing Melendez-Diaz, Bullcoming, and Williams,
the court concluded the admission of Dr. Felo’s opinion
did not violate the defendant’s Confrontation Clause
rights.
State v. Watson, 185 A.3d 845 (N.H. 2018) was a
toxicology case where the defendant was charged with
furnishing illegal drugs that caused death. Under a
state contract, the toxicology analysis of the specimens
from the decedent’s body was done by a private company, NMS. Multiple technicians and analysts did the
actual laboratory work, with their work, the actual instrument data, and chain-of-custody records being
submitted to Isenschmid, who prepared the final NMS
report, and testified at trial. On appeal, after reviewing
Melendez-Diaz, Bullcoming, and Williams, the New
Hampshire Supreme Court concluded that the admission of Isenschmid’s own opinions which he arrived at
on reviewing all the material submitted to him did not
violate the defendant’s Confrontation Clause rights.
State v. Mercier, 87 A.3d 700 (Me. 2014), cert. denied, 574 U.S. 840 (2014), involved the prosecution of a
1980 murder. The case had become “cold,” but nearly
30 years after the crime, DNA analysis of sperm cells
found in samples from the female victim’s body produced a DNA profile that, through investigation, was
26
found to match the defendant. At trial, the medical
examiner who had performed the 1980 autopsy did
not testify. Another medical examiner, Dr. Greenwald,
reviewed the original autopsy report and reached her
own opinion as to the injuries and cause of death. Dr.
Greenwald testified at trial about her opinions and
conclusions, but was not permitted to testify to any details of factual findings in the original autopsy report,
and that report was not entered into evidence. After
conviction, the Supreme Judicial Court of Maine considered the defendant’s Confrontation Clause claim,
and reviewed Melendez-Diaz, Bullcoming, and Williams. The court concluded the evidence was properly
admitted, and affirmed.
State v. Roach, 95 A.3d 683 (N.J. 2014), cert. denied, 575 U.S. 1028 (2014) was a DNA evidence rape
case. Analyst Schiffner had analyzed swabs taken from
the victim’s inner thigh area, and buccal (cheek) swabs
taken from the victim and a suspect E.A. She found
sperm cells with DNA in the inner thigh swabs and
concluded that the perpetrator’s genetic profile did not
match either the victim or E.A. At some later point,
Schiffner relocated from New Jersey to Wisconsin. After the defendant was identified as a suspect, police
obtained a buccal swab from him, which was analyzed
by Analyst Banaag. Banaag also analyzed all of the
notes, records and machine outputs from the work
done by Schiffner. Banaag concluded Roach was the
source of the sperm cells from the thigh swabs, computed a frequency figure in the quintillions, and testified at trial. Schiffner did not testify. After conviction
27
and on appeal, the New Jersey Supreme Court reviewed Melendez-Diaz, Bullcoming, and Williams. The
court concluded the evidence was proper, and affirmed the conviction.
State v. Griep, 863 N.W.2d 567 (Wisc. 2015), cert.
denied, 577 U.S. 1061 (2016), involved blood alcohol
analysis in a DUI case. The defendant’s blood sample
was first analyzed at the Wisconsin State Laboratory
by analyst Kalscheur. At trial, she was unavailable, so
the prosecution called Harding, the chief of the laboratory toxicology section. Harding reviewed the records
of Kalscheur’s testing, including the chromatographs
produced by the analysis machine. He reached his own
opinion as to the blood alcohol, to which he testified at
trial. Kalscheur’s report and opinion were not entered
into evidence. After conviction on appeal, the Wisconsin Supreme Court conducted an extensive review of
Wisconsin case law, and Melendez-Diaz, Bullcoming,
and Williams, and ruled that Griep’s Confrontation
Clause rights had not been violated.
Since Melendez-Diaz, Bullcoming, and Williams,
many additional cases, in a variety of jurisdictions,
have likewise held that when an expert reviews materials produced by another, including testing notes,
observation notes, and tests produced by automated
machines, and then reaches his/her own opinion and
conclusions, and the underlying analyst has not testified, that second expert may still testify to his/her
own conclusions, without violating the Confrontation
Clause. Included among cases so holding are: United
States v. Katso, 74 M.J. 273, at 282–284 (C.A.A.F. 2015),
28
cert. denied, 136 S. Ct. 1512 (2016) (DNA expert); Commonwealth v. Greineder, 984 N.E.2d 804 (Mass. 2013),
cert. denied, 571 U.S. 865 (2013) (DNA expert); State v.
Sauerbry, 447 S.W.3d 780 (Mo. 2014) (autopsy expert);
State v. McLeod, 66 A.3d 1221 (N.H. 2013) (arson experts); State v. Michaels, 95 A.3d 648 (N.J. 2014), cert.
denied, 574 U.S. 1051 (2014) (blood toxicology for drugs
expert); Commonwealth v. Yohe, 79 A.3d 520 (Pa. 2013),
cert. denied, 572 U.S. 1135 (2014) (blood alcohol expert); Commonwealth v. Brown, 185 A.3d 316 (Pa. 2018)
(autopsy expert); State v. Manion, 295 P.3d 270 (Wash.
App. 2013) (DNA expert). Cases from New York and
California discussed below also support this position.
While these cases involve a variety of factual and
forensic science settings, they have in common the key
confrontation scenario presented in the case at bar –
forensic testing done by an analyst who then does not
testify at trial; the notes, records, recorded observations, and if applicable machine analysis records and
printouts of the original analyst reviewed by a second
analyst; the second analyst reaching his or her own
opinion; and the second analyst testifying to that opinion at trial, fully open to cross-examination by the
defendant. The analyses and holdings of these cases
provide strong support for the conclusion that in this
case Smith was not denied his rights under the Confrontation Clause.
29
V.
The New York and California Cases Cited
by Petitioner Do Not Indicate an Analyst
Cannot Rely on Material from a Non-Testifying Analyst
In arguing against a “not for the truth of the matter” standard for dealing with the issue of information
from underlying analysts, petitioner seems to imply
that the rules judicially adopted in New York and California have somehow limited the ability of an analyst
to testify based on the work and data produced by another. See Petitioner’s Brief on the Merits, pp. 43–44.
This is part of petitioner’s larger argument that putting more strict confrontation requirements on the
prosecution will not lead to an undue burden on the
state in proving its case. Id., at pp. 42–44; see also brief
of Amicus Curiae the Alameda County Public Defender et al., at pp. 4–16. If that is petitioner’s position, it overstates the rules in those jurisdictions, and
their impact on the admissibility of the opinion testimony of a forensic science expert.
With respect to New York, petitioner ignores the
fact that the New York Court of Appeals has specifically approved the testimony of a single analyst who
did not personally conduct, supervise, or observe all
the underlying procedures in a DNA analysis case. In
People v. John, 52 N.E.3d 1114 (N.Y. 2016), analyzing
its own precedents as well as cases from this Court, the
Court of Appeals expressly stated that “ . . . an ‘all analysts’ rule is not consistent with the decisional law.”
52 N.E.3d at 1126. As to what would be necessary, the
court went on to state:
30
We conclude that an analyst who witnessed,
performed or supervised the generation of defendant’s DNA profile, or who used his or her
independent analysis on the raw data, as opposed to a testifying analyst functioning as a
conduit for the conclusions of others, must be
available to testify.
52 N.E.3d at 1128 (emphasis added).
Thus, the New York court expressly stated that the
testimony of a single witness, who either supervised
the generation of a DNA profile, or who used independent analysis on the raw data, would satisfy the Confrontation Clause. In two very recent cases, the New
York Court of Appeals confirmed its adherence to the
John standard. People v. Ortega, 2023 NY Slip Op 05956,
2023 N.Y. Lexis 1902, 2023 WL 8007098 (11/20/23) (autopsy case); People v. Jordan, 2023 NY Slip Op 05957,
2023 N.Y. Lexis 1897, 2023 WL 800 (11/20/23) (DNA case).2
Petitioner’s argument with respect to the law in
California stems from the California Supreme Court
decision in People v. Sanchez, 374 P.3d 320 (Cal. 2016).
That case did not involve forensic science testimony
at all, but rather the testimony of a police officer who was
a gang expert. In testifying as to the defendant’s alleged
status as a gang member, the officer related four times
2
In each case the court found deficiencies in the prosecution
showing under the John standard for those particular cases, but
in each the court made it clear that a single witness who was not
the original analyst, but who used his or her own independent
review and analysis of primary data and made his or her own
independent conclusions, could with the proper showing testify
without violating the Confrontation Clause.
31
when the defendant had been given “STEP” notices by
police that he was associating with gang members, and
that if he was convicted of a crime, his gang involvement could lead to enhanced penalties. The officer also
testified to the facts from several incidents when the
defendant had previously been involved with or in the
proximity of gang behavior. The police reports and the
STEP notices themselves were not admitted into evidence, but the testifying officer related the facts from
these in his testimony, even though he had not been a
percipient witness to any of them, nor had he been involved in giving defendant the STEP notices. The California Supreme Court held that the admission of these
pure hearsay “case-specific” facts was improper.
Pertinent to the issue in this case, the California
Supreme Court in Sanchez did not indicate the rule it
enunciated had any application to forensic science evidence, or the use a testifying forensic science expert
may permissibly make of observations and analysis
made by a scientist or technician who did not testify.
The court observed that it had previously decided two
Confrontation Clause cases dealing with forensic science evidence in which it had considered and applied
Williams v. Illinois: People v. Lopez, 286 P.3d 469 (Cal.
2012), a blood alcohol analysis case; and People v.
Dungo, 286 P.3d 442 (Cal. 2012), an autopsy case. People v. Sanchez, supra, 374 P.3d at 338. In each of those
cases, the testifying analyst had relied on materials,
observations, and testing data produced by another expert, who did not testify. In each case, the California
court concluded that the Confrontation Clause had
not been violated. When it decided Sanchez four years
32
later, the court noted its decisions and analysis in
Lopez and Dungo. In deciding that the case-specific
gang contact information admitted against Sanchez
was improper, the California court specifically disapproved six of its prior decisions relating to expert
opinion basis evidence. 374 P.3d at 334, fn. 13. None
of the disapproved cases involved crime lab evidence
analysis, and the list of disapproved cases did not include Lopez or Dungo. Accordingly, the practices considered and approved in Lopez and Dungo regarding
the admission of testimony by a scientific analyst who
relied on materials, observations and data from a nontestifying analyst remain approved in California.
Thus, it is not surprising, as the Solicitor General
observed in her amicus brief filed in this case, that
notwithstanding petitioner’s assertions, courts in New
York and California still allow analysts to testify about
conclusions derived from materials and data produced
by underlying analysts. See Amicus Brief of Solicitor
General, p. 30. Neither the rules in New York nor the
rules in California stand for the proposition that an
analyst may not rely on work by other, non-testifying
analysts, reach his or her own opinion, and testify to
that opinion without violating the Confrontation
Clause. Nor does petitioner’s reference to the procedures in these states support the position that overly
strict requirements for the testimony of underlying
experts will have little or no impact on the ability of
the prosecution to prove its case, both in individual
situations, and in the larger scheme of the criminal
justice system as a whole.
---------------------------------♦---------------------------------
33
CONCLUSION
When a forensic scientist receives and reviews
work materials, data and analysis produced by another
scientist, then reviews and analyzes that material,
using his or her own judgment, and reaching his or
her own opinion, that scientist is conducting inquiry,
analysis and conclusions in the way that science works.
When that scientist then testifies to his or her own
conclusion, and is available for cross-examination, the
historical and core concerns of the Confrontation
Clause have been satisfied. That is what happened in
this case. A result which extends the requirement for
the testimony of underlying scientists not only reaches
beyond anything the founders conceived for the Confrontation Clause. It also imposes impracticalities and
impediments to the practice of forensic science in both
laboratories and the courts. For these reasons, your
amici respectfully urge this Court to affirm.
Respectfully submitted,
ALBERT C. LOCHER
Counsel of Record
NATIONAL DISTRICT ATTORNEYS ASSOCIATION
1400 Crystal Drive, Suite 330
Arlington, VA 22202
(703) 549-9222
lochera@sacda.org
Counsel of Record for Amici Curiae
National District Attorneys Association,
and Forty-one Amici Prosecutor Associations,
Councils and Government Entities
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.