I. Introduction

The current test for the admissibility of evidence under the Confrontation Clause was established by Crawford v. Washington, 541 U.S. 36 (2004), under which testimonial hearsay is inadmissible absent a showing of the declarant’s unavailability and a prior opportunity for cross-examination. The Supreme Court most recently addressed the issue of substitute analyst testimony in Smith v. Arizona, 602 U.S. 779 (2024), which held that, if an expert conveys an out-of-court statement in support of an opinion, and the statement supports the opinion only if true, then the statement has been offered for the truth of the matter asserted. Smith arguably undermines the rationale previously adopted by North Carolina courts under which one analyst was permitted to testify as an expert based on the (otherwise inadmissible) report of another non-testifying analyst. See Phil Dixon, Smith v. Arizona Comes to NC, N.C. Crim. L.: A UNC Sch. of Gov’t Blog (Dec. 4, 2024).

This entry focuses on the admissibility of expert witness testimony and reports. Given the parameters of Crawford, relevant considerations include whether the evidence sought to be introduced is (1) testimonial and (2) hearsay. Lab reports created solely for an evidentiary purpose, made in aid of a police investigation, such as those which identify a controlled substance, are testimonial. See State v. Craven, 367 N.C. 51, 57 (2013); State v. Clark, 909 S.E.2d 566, 570 (N.C. Ct. App. 2024); cf. State v. Tate, No. COA24-450 (N.C. Ct. App. June 18, 2025) (DNA profile obtained from analysis of sexual assault test kit was not testimonial). By contrast, machine-generated raw data is neither hearsay nor testimonial. State v. Lester, 387 N.C. 90, 100 (2025). For a more detailed discussion of Crawford and the Confrontation Clause, including considerations of unavailability and a prior opportunity for cross-examination, see “Crawford and the Confrontation Clause,” Jessica Smith, North Carolina Superior Court Judges’ Benchbook, July 2018.

II. Crawford and its Progeny

A. Confrontation Clause Rights

“In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Sixth Amendment’s Confrontation Clause was made applicable to the states in 1965. See Pointer v. Texas, 380 U.S. 400 (1965). In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court held hearsay evidence was rendered inadmissible by the confrontation clause unless the State could show (1) that the declarant was unavailable, and (2) that the declaration bore adequate indicia of reliability. Id. at 65-66.

B. Crawford v. Washington

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court overruled Roberts. Under Crawford, the Confrontation Clause prohibits the admission of testimonial hearsay, unless the witness is unavailable to testify and the defendant had a prior opportunity for cross-examination. Id. at 53-54. A statement is “testimonial” if its primary purpose is to establish or prove past events potentially relevant to later criminal prosecution. Ohio v. Clark, 576 U.S. 237, 244 (2015). At a minimum, the term “testimonial” covers prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations. Crawford, 541 U.S. at 68.

C. Melendez-Diaz v. Massachusetts

The defendant in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), was convicted of drug trafficking after the trial court admitted three “certificates of analysis” that identified the substance as cocaine. Upon review, the Supreme Court reasoned that the certificates were essentially affidavits and that the affidavits were testimonial. Hence, the analyst were “witnesses” for purposes of the Sixth Amendment, and the defendant was entitled to confront the analysts at trial, absent a showing of unavailability and a prior opportunity for cross-examination. Id. at 310-11; see also State v. Locklear, 363 N.C. 438, 452 (2009) (trial court erred by allowing one expert to testify to the conclusions of another as to cause of death and identity of victim).

D. Bullcoming v. New Mexico

The defendant in Bullcoming v. New Mexico, 546 U.S. 647 (2011), was convicted of impaired driving after the trial court admitted an analyst’s report certifying the defendant’s blood alcohol content was 0.21 grams / hundred millimeters. The trial court admitted the report as a business record during the testimony of another scientist who was not involved in the testing. Upon review, the United States Supreme Court held that, if an out-of-court statement is testimonial, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront the witness. Id. at 657; see also State v. Craven, 367 N.C. 51, 57 (2013) (trial court erred by allowing one analyst to testify to the conclusions of another as to the identify of a suspected controlled substance).

E. Williams v. Illinois

The defendant in Williams v. Illinois, 567 U.S. 50 (2012), was convicted of sexual assault after the trial court permitted a forensic scientist from the in-state lab to testify that the profile obtained from a sexual assault kit (results obtained by an out-of-state lab) matched the defendant’s profile. Upon review, the United States Supreme Court affirmed the conviction in a fractured opinion. Justice Alito, writing for a four-justice plurality, believed Evidence Rule 703 authorized the analyst to base her opinion on the inadmissible report. Id. at 78. Justice Kagan and four other justices, including Justice Thomas, rejected the suggestion that the out-of-state report was being used for anything other than the truth of the matter asserted. Id. at 132. The defendant’s conviction was affirmed, however, based on Alito’s plurality and Thomas, who together concluded that the out-of-state report did not constitute testimonial hearsay. Justice Thomas concurred with the plurality but based on a different rationale. Id. at 111 (Thomas, J., concurring).

F. Smith v. Arizona

The defendant in Smith v. Arizona, 602 U.S. 779 (2024), was convicted of drug offenses after the trial court allowed a testifying analyst to identify the substances based entirely on another analyst’s report. Upon review, the United States Supreme Court posited that if an expert conveys an out-of-court statement in support of his opinion, and the statement supports the opinion only if true, then the statement has been offered for the truth of the matter asserted. Id. at 795. If the statements were testimonial, their admission violated the confrontation clause. Id. at 800. The Court remanded for a determination of whether the statements were testimonial. Id. at 803; see also State v. Clark, 909 S.E.2d 566, 571 (N.C. Ct. App. 2024) (trial court erred by allowing one analyst to testify to conclusions of another as to the identify of a suspected controlled substance).

G. Recommendations

In light of these cases, the better practice for the State is to present all forensic testing and reports through the sworn testimony of the witness(es) who performed the tests and prepared the reports. Given the limited number of experts available to conduct testing and the number of cases set for trial across the state at any one time (not to mention that witnesses routinely retire, change jobs, move, etc.), that is not always possible. The remaining sections in this entry discuss ways the evidence may be admissible at trial, even if the testing analyst is not available to testify in court.

III. Waiver or Stipulation

A. Notice-and-Demand Statutes

Confrontation rights may be waived, and states may adopt procedural rules governing the exercise of such waivers. See Melendez-Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 (2009).

North Carolina has adopted such rules in several “notice and demand” statutes. Under these statutes, when the State has given the defendant adequate notice of intent to offer certain evidence, the defendant’s failure to object within a prescribed period renders the evidence admissible at trial, without calling the declarant 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.

Cases have generally upheld these statutory waiver provisions. See State v. Whittington, 367 N.C. 186, 192 (2014) (State’s compliance with G.S. 90-95(g) and defendant’s failure to object produced “valid waiver”); State v. Burrow, 227 N.C. App. 568, 571 (2013) (notice in compliance with G.S. 90-95(g) was sufficient even without proof of service or file stamp); State v. Jones, 221 N.C. App. 236, 239 (2012) (State’s compliance with G.S. 90-95(g) and defendant’s failure to object made lab report admissible without testimony of chemical analyst). For more information, see the related entry on Forensic Drug/Blood Analysis (Section C - "Notice & Demand Statutes").

B. Stipulation or Failure to Object

Alternatively, the defendant may waive confrontation rights by stipulating to the admissibility of the evidence or failing to object at trial. See, e.g., State v. Loftis, 264 N.C. App. 652, 658 (2019) (finding no error in trial court’s acceptance of oral stipulation to admissibility of lab report absent extensive colloquy); State v. Perez, 260 N.C. App. 311, 315 (2018) (same, regarding written stipulation); State v. Ward, 226 N.C. App. 386, 391 (2013) (finding no error in trial court’s admission of one analyst’s lab report and another analyst’s testimony when the defendant stipulated to the identity of the controlled substance tested and failed to object to the witness’s testimony); see also State v. Brent, 367 N.C. 73, 76 (2013) (defendant’s failure to object to raw data or substitute analyst’s testimony at trial precluded consideration of confrontation issue on appeal).

Hence, even when waiver is not accomplished via compliance with a notice-and-demand statute, it may be possible to get evidence admitted by negotiating a stipulation with the defense.

III. Substitute Analyst

As noted above, absent a waiver of confrontation rights, lab results are not admissible via the testimony of an analyst who did not perform the test (i.e., a substitute analyst). See Bullcoming v. New Mexico, 564 U.S. 647 (2011). There are, however, circumstances in which an expert witness may nevertheless be permitted to testify, to some degree, about work performed by another analyst.

The Confrontation Clause prohibits the introduction of testimony by an expert witness that is based solely on the reports of a non-testifying analyst. When the testifying witness conducted his or her own testing or analysis, and reached independent conclusions, the witness may testify about his or her own examinations and results, even though a different person conducted the original testing or analysis. See State v. Taylor, 293 N.C. App. 303, 313 (2024) (forensic scientist participated in preparing blood sample for testing, reviewed the underlying data, and formed her own independent opinion); State v. McMillan, 214 N.C. App. 320 (2011) (forensic pathologist was present for autopsy and testified to her own independent opinion); State v. Hartley, 212 N.C. App. 1 (2011) (pathologist described victim’s wounds depicted in autopsy photographs and provided her own expert opinion); State v. Blue, 207 N.C. App. 267, 281 (2010) (medical examiner participated in autopsy and testified to his own observations and conclusions).

IV. Remote Testimony

In Maryland v. Craig, 497 U.S. 836 (1990), the Supreme Court upheld a Maryland statute that permitted the use of one-way, closed circuit television to present the testimony of a child victim in a sexual abuse case. Under Craig, the defendant’s right to confrontation may be satisfied absent a physical, face-to-face confrontation at trial only where (1) denial of such confrontation is necessary to further an important social policy and (2) the reliability of the testimony is otherwise assured. Id. at 850. The State’s interest in the well-being of child abuse victims and in protecting child witnesses from the trauma of testifying is an important social policy. Id. at 853, 855. Whether use of a procedure that fails to provide face-to-face confrontation is necessary must be decided on a case-by-case basis. Id. at 855. Reliability of the testimony is assured by requirements that the witness be competent to testify and must testify under oath; that the defendant retains the opportunity for contemporaneous cross-examination; and that the judge, jury, and defendant are able to view the demeanor of the witness as he or she testifies. Id. at 851.

Craig established the controlling test to determine the admissibility of witness testimony absent face-to-face confrontation at trial. State v. Seelig, 226 N.C. App. 147, 156 (2013). Though Craig predated Crawford, courts continue to apply the Craig test to determine the admissibility of remote testimony. Id. at 157; State v. Jackson, 216 N.C. App. 238, 243 (2011). Accordingly, in State v. Seelig, 226 N.C. App. 147 (2013), the Court of Appeals found no error in the admission of testimony via two-way, closed circuit web broadcast where the adult witness (a forensic analyst) was unable to travel because of his health and the witness testified under oath, was subject to cross-examination, and was able to be observed by the judge, jury, and the defendant. Id. at 159; cf. G.S. 15A-1225.3 (permitting forensic analyst remote testimony subject to conditions).

Like the Maryland statute at issue in Craig, a North Carolina statute provides that a child witness may testify remotely if the court determines (1) the child witness would suffer serious emotional distress by testifying in the defendant’s presence and (2) the child’s ability to communicate with the trier of fact would be impaired. G.S. 15A-1225.1(b). The Court of Appeals has upheld the admission of remote testimony from child victims consistent with this statute. See State v. Lanford, 225 N.C. App. 189, 208 (2013); State v. Jackson, 216 N.C. App. 238 (2011).