Forensic Analyst Independent Review Opinion Testimony, Basis Only Under Fed.R.Evid. 703: Is the Confrontation Clause Satisfied?

“Forensic Analyst Independent Review Opinion Testimony, Basis Only Under Fed.R.Evid. 703: Is the Confrontation Clause Satisfied?”, is the first of three consecutive articles dealing with specific applications of the confrontation clause as interpreted in Crawford to Williams/Clark. In Illinois v. Williams, — U.S. —, 132 S.Ct. 2225 (2012), a forensic laboratory test result employed pursuant to a corresponding state evidence rule to Fed.R.Evid. 703 was held to be “nontestimonial” in a 4-1-4 United States Supreme Court opinion described by Justice Kagan dissenting as a decision that leaves “significant confusion” in its wake. With respect to the interrelationship of Fed.R.Evid. 703, mere conduit experts, and the confrontation clause’s “testimonial” “nontestimonial” distinction, Williams/Clark in fact has created not only “significant confusion” but “substantial complexity” as well. The second article in this series, “Autopsy Reports Under the Confrontation Clause: "Significant Confusion" Indeed!!!”, 53 Crim.L.Bull. 1041 (2017), will explore the divergence of opinion in reported opinions following Williams as to whether, and if so under what factual circumstances, an autopsy report is “testimonial”. The final article in this series will address issues arising under the Confrontation Clause as interpreted in Crawford to Williams with respect to recordings of any kind, whether or not also photographic, of communication in a language other than English translated at some point into English and presented as evidence in a criminal trial against the accused. This third article will also contain an up to date confrontation clause “Testimonial” “Nontestimonial” Crawford to Williams/Clark Application Summary. Summary of Current Waterfront: First, it is relatively certain that the United States Supreme Court has learned its lesson with Williams and that no additional confrontation clause opinion will soon be forthcoming relating to forensic laboratory test results until there is a significant change in the courts makeup. Second, Crawford to Williams/Clark has more or less solidified that forensic laboratory test results are “testimonial” and as such the prosecution at least upon demand by the criminal defendant, must produce a forensic laboratory analyst to testify, under oath, against the criminal defendant subject to cross-examination at trial presenting the forensic laboratory test results. Third, the “testimonial” avoidance technique of encouraging the creation of insufficiently “formal” and “solemn” forensic laboratory test result reports and declaring such test result reports “nontestimonial” on the strength of Justice Thomas’s concurrence opinion in Williams as was done in California has, for good reason, not been adopted elsewhere except for Maryland, Derr v. State, 73 A.3d 254 (Md. 2013). Similarly, the poorly developed primary purpose of accessing a particular targeted individual of a crime Fed.R.Evid. 703 rational of Justice Alito, has been relied upon solely in Illinois. Fourth, it appears that a significant number jurisdictions, some admitting the forensic laboratory test report pursuant to a hearsay exception as substantive evidence, others employing Fed.R.Evid. 703, with some permitting disclosure and some not, require that the forensic laboratory analyst testifying to the test result in question against the criminal defendant comply with the holding of Melendez-Diaz/Bullcoming, i.e., must possess sufficient personal knowledge of the test having signed the certification or performed or observed the test reported in the certification. Fifth, at least 21 states and 7 federal courts, while requiring as per Melendez-Diaz the in court testimony of a forensic laboratory analyst as to the test result, have also opined that in court testimony by a forensic laboratory analyst who, lacking sufficient personal knowledge to comply with the express holding of Bullcoming, formed an “independent” opinion following a “review” of the test results, testing procedures, etc., and objective evaluation of the raw data, satisfies the confrontation clause. While these jurisdictions do not agree with the dissenters in Melendez-Diaz and Bullcoming that requiring a forensic laboratory analyst to testify is a “hollow formality,” these jurisdictions also do not agree with the majority in Bullcoming that the testifying forensic analyst must have been personally involved in the testing process. Obviously, the “independent” opinion review analyst approach addresses the concern that dismissal of the prosecution would be necessitated if only a personal knowledge analyst satisfies the confrontation clause and none were available to testify. In addition, vastly increased flexibility provided to the prosecution in selecting an forensic laboratory analyst to actually appear at trial addresses to some extent the cost and administrative burden argument of the dissenters in Melendez-Diaz and Bullcoming. So, is the confrontation clause satisfied by forensic review analyst independent opinion testimony? Yes, in spite of Bullcoming, because the United States Supreme Court is not going to in the near future to say otherwise. Finally, should testimony in court by a forensic review analyst offering an independent opinion satisfy the confrontation clause? Yes!!! As indicated in the text of this article and in the footnotes in support, the right to cross-examine a single member of the forensic laboratory analyst team conducting the test and in particular a supervisor who actually signed the certification not having performed or observed any of the testing itself personally as permitted by Bullcoming, is simply not likely to effectively address the possible reliability concerns arising with respect to laboratory test results expressed by the majority in any meaningful way. The right to cross-examine a single sufficient personal knowledge analyst for many reasons is simply a “hollow formality”. Since full acceptance of the dissenters position that no live analyst testimony is required by the confrontation clause in the accused’s trial is so far contrary to Melendez-Diaz and Bullcoming and denigrating of the United States Supreme Court as to find no adherence beyond California and Maryland, the “independent” review analyst opinion amelioration tactic clearly makes the best of a truly confused and theoretically unsupportable approach to confrontation clause analyses expound in Crawford to Williams/Clark.