In recent years, the U.S. Supreme Court has created a new field of evolving case law regarding the Sixth Amendment’s confrontation clause (the criminal defendant’s right “to be confronted with the witnesses against him”). This right was given new life in the 2004 Crawford decision, and the high court has been clarifying (or muddying, depending on your perspective) the contours of this right ever since.
One line of cases deals with how the results of scientific tests (like drug analysis or DNA profiles) can be used properly at trial. These are Melendez-Diaz (2009, decided 5-4), Bullcoming (2011, 5-4), and Williams (2012, 4-1-4 and downright confusing). A full explanation of these cases would be too long. But to simplify, the current Supreme Court seems to have (with the occasional qualification):
- four justices (Roberts, Kennedy, Breyer, Alito) who would make an exception to the confrontation clause for scientific tests;
- four justices (Scalia, Ginsburg, Sotomayor, Kagan) who tend to rule that the specific analyst who performed the test must be present to testify; and
- one justice (Thomas) who bases his rulings on whether each out-of-court analysis counts as “formalized testimonial material.”
In Melendez-Diaz and Bullcoming, the view of the latter four (plus the one) prevailed. The analysts (drug and blood alcohol, respectively) had to come to court, testify, and be cross-examined about the tests they performed; otherwise, the results could not be used. This was a fairly clear rule… until Williams, in which a DNA expert was allowed to testify to the results of a test that she did not do herself.
Here, the other four justices wrote a non-controlling plurality opinion, holding that the DNA test was being admitted not as evidence of the defendant’s guilt, but only as the basis for the expert’s opinion. The five remaining justices thought this justification was nonsense: of course the DNA test was being treated as substantive evidence against the defendant. But because Justice Thomas also wrote separately that the DNA test was not “formalized testimonial material”, the result was that five justices held that the analysis was admissible. So, with no controlling justification coming out of Williams, the state of the law is extremely confusing.
With this backdrop, the North Carolina Supreme Court concluded its term last month with seven decisions about drug analysis. The justices on this court are also closely divided on the issue, 4-3. But the controlling opinion (in the lead case, Ortiz-Zape) was that an independent expert could “present an independent opinion obtained through his or her own analysis [as long as it was] not merely ‘surrogate testimony’ parroting otherwise inadmissible statements.” (The other opinions can be found here.)
As a result, in most of the seven cases the NC Supreme Court looked at, the expert’s testimony was permitted, even though the testimony described the results of tests that the expert did not perform him- or herself. According to the majority, the defense has the right to cross-examine this witness, and this would include establishing, for example, that the witness did not actually run the test, and is only assuming that another analyst did the test correctly. As long as the witness engages in this rhetorical dance (giving an “independent opinion” assuming the tests were done correctly), the results of the test may be described as the basis for the expert’s opinion.
This reasoning aligns with the four-justice plurality in Williams. But would five justices of the US Supreme Court buy it? I think this is unclear, but my opinion is, probably not. In my view, the NC cases are unlike Williams, in part because the drug analyses were done specifically for proving the guilt of a specific defendant. By contrast, in Williams, the plurality noted (in an alternative holding) that the original DNA profile was generated without a specific suspect in mind; the potential for misconduct is much less in such a situation. This angle also seemed to influence Justice Thomas’s holding that the original DNA profile was not a “formalized testimonial” statement.
Similar stories are playing out in each jurisdiction across the country right now. For now, the state of the law in North Carolina is that an expert scientific witness can give an “independent opinion” based on tests done by other analysts, even if those analysts do not come to court and present their results.
Emphasis on “for now.” Eventually, the U.S. Supreme Court will have to address these questions again. I think that they will be confronted with issues like this for years to come.