603.1Crawford, Substitute Analyst
- Crawford and the Confrontation Clause apply to expert testimony, so a “substitute” analyst who has not conducted his or her own analysis may not be used as a mouthpiece for the conclusions of an unavailable witness.
- However, if an expert witness has conducted his or her own analysis and reached an independent conclusion, the testifying witness may be able to testify and express an opinion, even if the witness’s opinions are based in part on the absent witness’s work.
- The state may also seek to introduce the evidence through other means including notice and demand statutes, stipulations, or remote testimony.
This entry primarily focuses on how Crawford v. Washington, 541 U.S. 36 (2004) and the Confrontation Clause affect the admissibility of expert witness testimony and reports. For a more detailed discussion of Crawford and the Confrontation Clause in general, see “Crawford and the Confrontation Clause,” Jessica Smith, North Carolina Superior Court Judges’ Benchbook, July 2018.
Confrontation and Crawford with Expert Witnesses
Under Crawford, the admission of a testimonial statement by a witness who does not testify at trial violates the Confrontation Clause under the 6th Amendment, and therefore it is not allowed unless the prosecution can establish the witness’s unavailability and show that the defendant had a prior opportunity to cross-examine that witness. See Crawford v. Washington, 541 U.S. 36 (2004).
Based on several noteworthy cases that have followed and interpreted Crawford, it is clear that a forensic report prepared by an expert witness is considered “testimonial evidence,” and therefore a substitute expert witness may not be used as a “surrogate” or replacement to testify at trial in place of the witness who actually conducted the testing or examination and prepared the report. See Bullcoming v. New Mexico, 564 U.S. 647 (2011) (blood alcohol report was testimonial, and admission through testimony of a different witness at trial was error); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (forensic lab reports are testimonial, and therefore subject to Crawford); State v. Craven, 367 N.C. 51 (2013) (testimony of analyst about the identity, composition, and weight of substances recovered on two buy dates was testimonial hearsay); State v. Locklear, 363 N.C. 438 (2009) (admission of forensic analyses performed by non-testifying forensic pathologist and non-testifying forensic dentist violated Confrontation Clause); State v. Poole, 223 N.C. App. 185 (2012) (error to admit forensic analysis prepared by non-testifying agent, because it was prepared for the prosecution of a criminal charge was therefore “testimonial”); State v. Brennan, 203 N.C. App. 698 (2010) (admission of testimony of a witness who read the affidavit of the chemical analyst regarding chemical tests performed by the analyst violated defendant's Sixth Amendment right to confront witnesses against him); State v. Galindo, 200 N.C. App. 410 (2009) (error to admit expert testimony on weight of cocaine where testifying expert did not personally perform the analysis and generate the lab report).
In light of these cases, the best course of action for the state is to present all forensic testing and reports through the sworn testimony of the same expert witness who actually performed the tests and prepared the report.
In reality, given the limited number of experts available to conduct testing and the large number of cases set for trial across the state at any one time (not to mention the fact that witnesses routinely retire, change jobs, move, etc.), that is not always possible. The remaining sections in this entry discuss the various ways in which the evidence or reports associated with that expert may still be admissible at trial, even if the witness is not available to testify in court.
Notice and Demand Statutes
Confrontation rights can be waived, and the states are permitted to adopt procedural rules governing how a knowing, voluntary and intelligent waiver of those rights should occur. See Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). North Carolina has implemented this waiver process through a number of “notice and demand” statutes, which basically allow the state to give notice to the defendant that it plans to introduce a lab report, chemical analysis, chain of custody form, etc., without calling the witness to testify. See, e.g. G.S. 8-58.20(a)-(f) (lab report of a forensic analysis); G.S. 20-139.1(c1) (chemical analysis of blood or urine); G.S. 90-95(g) (chemical analysis in drug cases). For a summary of the available notice and demand statutes, see “Don’t Look a Gift Horse in the Mouth,” Jessica Smith, North Carolina Criminal Law Blog, June 25, 2012.
If the defendant fails to make a timely objection to the proposed introduction of the evidence or report (usually within 15 days of receiving the notice, or at least 5 days before trial), then the state may introduce the report without the witness’s testimony. See State v. Whittington, 367 N.C. 186 (2014) (holding that Melendez-Diaz did not invalidate the notice and demand provision of G.S. 90-95); State v. Burrow, 227 N.C. App. 568 (2013) (notice of intent to offer drug analyst’s report without testimony was adequate and timely – not defective for lack formal service or file stamp); State v. Jones, 221 N.C. App. 236 (2012), on remand from 365 N.C. 467 (2012) (crime lab report identifying substance as crack was admissible without testimony of analyst, where state sent timely notice and defendant failed to object – report was sufficient to prove identity of substance).
For more information, see the related Expert Testimony entry regardring Forensic Drug/Blood Analysis (Section C - "Notice & Demand Statutes").
Stipulation (or Failure to Object)
The defendant can also waive his confrontation rights either by stipulating to the admissibility of the evidence, or by simply failing to object at trial. See, e.g., State v. Loftis, 264 N.C. App. 652 (2019) (accepting defendant's oral stipulation to admissibility of lab results without analyst testimony, and finding court had no duty to engage in extensive colloquy with defendant to ensure the waiver was knowing and voluntary); State v. Perez, 260 N.C. App. 311 (2018) (similar ruling, accepting a written stipulation to admissibility of lab results without testimony from the analyst, and judge had no duty to engage in a colloquy with defendant to inquire about the waiver); State v. Ward, 226 N.C. App. 386 (2013) (defendant stipulated to the drug test results and failed to object to analyst’s testimony - no error in allowing analyst to testify about work done by different analyst); see also State v. Brent, 367 N.C. 73 (2013) (defendant failed to object at trial, so there was no error in allowing a substitute analyst to testify about composition of the substance). Therefore, in cases where there is not an applicable notice and demand statute, or where the state has failed to send out a timely notice in advance of trial, it may be possible to get the testimony and reports into evidence by negotiating a stipulation with the defense.
Let’s make a deal
Obviously the prosecutor can’t plan his or her trial strategy around hoping that the defense will fail to object, so getting a stipulation is the more realistic option under these cases. Given a choice between signing a stipulation or facing a lengthy continuance until the state’s witness is available, the defense might actually prefer to sign the stipulation. Alternatively, the state might be able to negotiate with the defense by offering something in exchange for the stipulation, such as the dismissal of a related charge.
As noted in the first section above, using a true “substitute” analyst (that is, a surrogate or replacement witness whose testimony simply parrots the work and conclusions of an absent witness) is not allowed, unless the defendant has waived his confrontation rights. See Bullcoming v. New Mexico, 564 U.S. 647 (2011). However, there are circumstances in which an expert witness may nevertheless be permitted to testify about work performed by another analyst to some degree:
- Independent Analysis, or Basis of Opinion
When the testifying witness has conducted his or her own testing or analysis, and reached his or her own independent conclusion, the witness can testify about his or her own examinations and results, even though a different person conducted the original testing or analysis. See State v. Hartley, 212 N.C. App. 1 (2011) (no error where medical examiner testified in place of pathologist who performed autopsies – medical examiner performed her own analysis, reached her own conclusions, and made minimal references to the pathologist’s autopsy reports in her testimony); accord, State v. McMillan, 214 N.C. App. 320 (2011) (no error where expert forensic pathologist testified about autopsy and gave her own opinion about cause of death).
A testifying witness may rely on the testing or analysis conducted by the original analyst if: (i) that information is of a type “reasonably relied on by experts in the field” in forming their opinions; and (ii) the testifying witness actually used that information and reached his or her own independent conclusion in this case. See, e.g., State v. Crumitie, 266 N.C. App. 373 (2019) (no error in allowing substitute expert testimony on cell site analysis where witness reviewed first expert's report and gave independent opinion about the data); State v. Pless, 263 N.C. App. 341 (2018) (no error in case where, after SBI expert who analyzed drugs moved away, state called the supervisor who peer-reviewed the test results to testify as to her own conclusions based on the first analyst's data); State v. Ortiz-Zape, 367 N.C. 1 (2013) (expert in forensic science testified that substance was cocaine, based on independent analysis of testing that was done by another analyst); State v. Brewington, 367 N.C. 29 (2013) (testifying witness gave opinion formed as a result of her own analysis, based on testing done by a prior analyst); see also State v. Barnes, 226 N.C. App. 318 (2013) (medical examiner’s opinion relied on blood toxicology report prepared by another analyst); State v. Mobley, 200 N.C. App. 570 (2009) (analyst's testimony as to results of DNA tests performed by other analysts did not violate defendant's Confrontation Clause rights; analyst testified not just to the results of other experts' tests, but to her own technical review of these tests, her own expert opinion of the accuracy of the non-testifying experts' tests, and her own expert opinion based on a comparison of the original data); State v. Watts, 172 N.C. App. 58 (2005), rev’d on other grounds, 361 N.C. 161 (2006) (DNA expert permitted to testify about testing done by a colleague, which formed basis of the expert’s own opinion); State v. Bethea, 173 N.C. App. 43 (2005) (firearms expert permitted to give opinion based on non-testifying agent’s testing and analysis, since the non-testifying agent’s work was not offered for the truth of the matter but only as the basis of the testifying analyst’s opinion).
Additionally, any “machine-generated raw data” created in the original, non-testifying analyst’s work should be admissible under Rule 705, since that data is also the basis of the testifying expert witness’s opinion, unless the trial judge chooses to exclude it on prejudice grounds under Rule 403. See State v. Ortiz-Zape, 367 N.C. 1 (2013) (no error where testifying witness’s opinion was based in part on “reviewable data” generated by a machine during a different analyst’s review); see also State v. Hough, 202 N.C. App. 674 (2010), aff’d by equally divided court, 367 N.C. 79 (2013) (similar holding finding that the “reports” of the original analyst were also admissible, but justices were equally divided so the case lacks precedential value).
Williams v. Illinois
The most recent guidance we have from the United States Supreme Court on this multi-analyst/basis-of-opinion issue is Williams v. Illinois, 567 U.S. 50 (2012). In Williams, the analyst from an outside lab who was involved in generating a DNA profile did not testify, so the defendant challenged the admissibility of the other analysts’ testimony (which relied on his work) on confrontation grounds. A four justice plurality of the court felt that the reports from the outside lab analyst were (a) non-testimonial, and (b) not offered for the truth of the matter asserted, so there was no confrontation violation at all. One justice concurred in that result, but rejected the plurality’s reasoning. And a total of five members of the Court apparently disagreed with the argument that the evidence would be admissible anyway as the basis for the testifying experts’ opinions – which is potentially problematic, since that is part of the rationale for admissibility used in several of the North Carolina cases cited above.
The highly fractured nature of the Williams opinion means that it has limited precedential value, and the state cases cited above were not directly overruled by it. In fact, cases such as Ortiz-Zape, Brewington, and Barnes were all decided after Williams, and factored it into their analyses. But until the United States Supreme Court issues better guidance on exactly what is or is not permissible in multi-analyst cases, obviously the safest course of action would be for the state to have every analyst testify, whenever possible. If that’s not possible, the prosecutor should consider having the testifying witness fully re-test the evidence, so that he or she can make a totally independent analysis and report. If that’s not possible either, then the state can still rely on the North Carolina “basis-of-opinion” cases cited above, but the prosecutor should be aware that such testimony may come back up as an issue on appeal in the future.
For a more detailed discussion of this issue, see “Confrontation Clause Update: Williams v. Illinois and What it Means for Forensic Reports,” Jessica Smith, Administration of Justice Bulletin, September 2012.
- Multiple Analysts Working Together
When testing or analysis is conducted by more than one analyst acting together, or by someone else who was acting under the supervision and direction of the testifying witness, the testifying witness may speak about the testing or analysis performed by the other person(s). See State v. Harris, 221 N.C. App. 548 (2012) (state’s expert permitted to testify about DNA testing performed by a non-testifying trainee, who acted under the testifying witness’s direct observation and supervision); see also State v. Blue, 207 N.C. App. 267 (2010) (medical examiner permitted to testify about autopsy where he was one of three people who participated in the procedure).
- “Verification” of the Analyst’s Work
Several North Carolina cases have held that an expert witness is permitted to testify that his or her results were “verified” or “confirmed” by a supervisor (or another analyst), if that verification is a necessary part of the testing or analysis process. The rationale is that under those circumstances, the testimony about the verification is only being offered as part of the basis of the testifying expert’s own opinion, rather than for the truth of the matter asserted. See State v. Jones, 322 N.C. 406 (1988) (expert properly permitted to testify that expert’s opinion was confirmed by another expert); see also State v. Morrison, 176 N.C. App. 769 (2006) (unpublished) (no error or confrontation violation – expert’s “testimony regarding the confirmation of her identification by another fingerprint examiner in her unit, as part of her unit's standard operating procedure, clearly refers to a part of the basis upon which her own expert opinion was formed and was, therefore, not offered for the truth of the matter asserted”).
However, some courts have disagreed with this rationale, and found such testimony to be improper bolstering, impermissible hearsay, or a confrontation violation, particularly when the confirmation or verification at issue is only a matter of policy, and not truly a necessary step for the testifying analyst to form his or her own opinion. E.g., State v. Connor, 937 A.2d 928 (N.H. 2017) (error to allow testimony about confirmation process when analyst admitted it did not factor into forming his opinion, but was simply a requirement before the results could be finalized and “released”); Bunche v. Florida, 5 So.3d 38 (Fla. App. 2009) (testimony that second examiner agreed with first examiner’s conclusions was improper bolstering, but error was harmless).
In some cases, the state may be able to avoid using a substitute analyst by having the original analyst testify remotely – for example, if the witness has moved out of state, or is deployed on military duty and cannot feasibly be brought back to testify in person. See also G.S. 15A-1225.3 (allowing remote testimony from a forensic analyst testifying regarding the results of forensic testing conducted pursuant to G.S. 8-58.20, as long as the qualifying criteria are met and the correct procedures are followed for giving notice and presenting the testimony in court).
The use of remote video to present the testimony of child victims was expressly approved as an exception to the Confrontation Clause by Maryland v. Craig, 497 U.S. 836 (1990). Under Craig, the state is permitted to use remote testimony if it makes a case-specific showing (and if the court agrees and so finds) that the remote testimony is: (i) necessary to further an important public policy (e.g., the psychological well-being of a child abuse victim); and (ii) the reliability of the testimony is otherwise assured (i.e., witness is competent, jury is able to hear and view witness in real time, and defendant can cross-examine). Craig was decided prior to Crawford, but the North Carolina Court of Appeals has subsequently held that the use of remote two-way video testimony in such cases is still permissible, even post-Crawford. See State v. Jackson, 216 N.C. App. 238 (2011); State v. Lanford, 225 N.C. App. 189 (2013).
The same basic test applied in the child victim cases cited above has been used in North Carolina to permit an expert witness to testify remotely at trial. See State v. Seelig, 226 N.C. App. 147 (2013), cert denied, 366 N.C. 598 (2013). In Seelig, the expert witness’s illness (including panic attacks) left him hospitalized and unable to fly, and the court agreed that protecting the witness’s health was a sufficiently important state interest to justify letting the witness testify remotely from out-of-state about the forensic testing he performed. Id.
Based on case law from other jurisdictions, there appear to be other reasons besides the witness’s health that may also be deemed sufficiently important to justify remote testimony. For example, remote testimony has been allowed when a national security interest is at stake, when a witness has been targeted for intimidation, or when the witness is barred from attending the trial due to some other legal process. See, e.g., U.S. v. Abu Ali, 528 F.3d 210 (4th Cir. 2008) (introduction of video depositions taken in another country did not violate confrontation clause, given the important national security interest in fighting terrorism and the inability of witnesses to leave that country); State v. Johnson, 958 N.E.2d 977 (Ohio Ct. App. 2011) (allowing two way remote testimony of witnesses who were critical to state’s murder case, after they were subjected to severe intimidation by defendant’s associates); U.S. v. Rosenau, 870 F.Supp.2d 1109 (W.D. Wash. 2012) (allowing remote live video testimony from Canada, in light of important government interest in combatting drug trafficking, and the fact that the witness was legally barred from entering the U.S.).
On the other hand, the routine difficulties, expenses, or inconvenience associated with securing the attendance of a busy expert witness likely would not constitute a sufficiently important state interest to justify the use of remote testimony. See, e.g., Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) (noting that complying with confrontation clause requirements may be “burdensome” to the state, but so is trial by jury and the defendant’s right against self-incrimination, and those are not sufficient reasons to relax the rule).