Prove it! Musings on advocacy, evidence, and the problems of proof at trial: Confrontation and Cocaine, part III.b

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In the last several columns (part I, part II, part III.a)  we’ve been considering whether the State can introduce the result of forensic testing of suspected controlled substances without calling the lab analyst who did the tests or introduce the report itself into evidence.  By calling Agent Test, and qualifying her as an expert in forensic chemistry and otherwise satisfying the criteria of Rule 702, the State can prove the nature of the questioned substance.  Bubba, the defendant, can cross-examine her.  Alternatively, the State may rely upon the “notice and demand” statute and give Bubba notice that it intends to offer the lab report itself.  Unless Bubba files a written objection within five days, the lab report is admissible without the need for live testimony.  If the State does not call Agent Test and does not rely upon the notice and demand statute, or Bubba files an objection, the State still has to prove the nature of the substance.

The most likely response of the State after Ortiz-Zape is to call Agent Testify, another forensic chemist who reviewed the lab report of Agent Test.  This avoids Bubba confronting the chemist who actually tested the material he is charged with possessing and it avoids the messy hearsay issues that surround the admissibility of the lab report itself.

Prosecutors around the State will prepare standard checklists to insure they follow the guidance of the Supreme Court in laying the foundation for Agent Testify’s “independent opinion.”

This leads us to consider whether Agent Testify can offer her opinion at trial that the substance was cocaine even though she did not perform, or even observe, the actual chemical testing.  Of course, we all know that after Ortiz-Zape the short answer is “yes,” if the questions and answers are framed correctly.  Prosecutors around the State will prepare standard checklists to insure they follow the guidance of the Supreme Court in laying the foundation for Agent Testify’s “independent opinion.”

Because this deals with expert opinion testimony, Agent Testify’s opinion must satisfy the admission standards of N.C.R.Evid. 702-705.  The recent amendments (pdf) to N.C.R.Evid. 702(a) adopting the language of F.R.E. 702, which was itself amended in 2000 “in response to Daubert. . . .” reflects a decision by the North Carolina legislature to jettison the relatively lax admissibility standard of Howerton v. Arai Helmet, Ltd. for the more exacting and rigorous standard applied by Federal courts. ¹ 

The amended Rule 702(a) sets out a six-factor analytical framework to govern the admissibility of expert testimony.  First, the testimony must be based upon “scientific, technical or other specialized knowledge.”  Second, it must “assist the trier of fact to understand the evidence or to determine a fact in issue.”  Third, the witness must be “qualified as an expert by knowledge, skill, experience, training, or education.”  If the first three limitations are met, the witness may testify in the form of an opinion, or otherwise, if, fourth, “the testimony is based upon sufficient facts or data; fifth, the testimony is the product of reliable principles and methods; and sixth, the witness has applied the principles and methods reliably to the facts of the case.”

If all Agent Testify did was read and repeat the information recorded by Agent Test, without applying any scientific, technical, or specialized knowledge of her own, it would appear that the first limitation on the admission of expert opinion testimony is not met.

In our case against Bubba for cocaine possession, expert opinion testimony offered to prove the substance was cocaine will, undoubtedly, assist the jury in determining a fact in issue.  Furthermore, we’ll take as a given that Agent Testify is qualified as a forensic scientist by knowledge, skill, experience, training, or education.  Thus, two of the first three requirements for admitting Agent Testify’s opinion are relatively easily met.

Whether her opinion is based upon “scientific, technical, or other specialized knowledge” or is based merely upon her ability to read and remember the information Agent Test placed in the lab report is another matter.  If all she did was read and repeat the information recorded by Agent Test, without applying any scientific, technical, or specialized knowledge of her own, it would appear that the first limitation on the admission of expert opinion testimony is not met.  One might argue that this would be sufficient grounds to exclude the surrogate expert that testified in Craven about the results of the lab work done by two testing analysts, though the Supreme Court dealt with it on confrontation grounds by finding the substantive evidence offered was the out-of-court statements of the testing analysts.

In future cases I think we can all expect Agent Testify to say that she brought her own scientific, technical, and specialized knowledge to bear on the issue.

If, as we have seen in the Ortiz-Zape and Brewington cases, the testifying analyst purports to bring her own specialized skill and knowledge into the evaluation, the first limitation is satisfied.  In future cases I think we can all expect Agent Testify to say that she brought her own scientific, technical, and specialized knowledge to bear on the issue.  A simple question by the prosecutor in laying the foundation will be sufficient to satisfy this element, and it should not be a stumbling block except for the most ill-prepared.

At this point we can say that the first three limitations of the admission of Agent Testify’s opinion are relatively easily met.  The North Carolina Supreme Court has specifically held the defendant’s right to cross examine Agent Testify when she gives an independent expert opinion based upon the lab work of Agent Test satisfies the Confrontation Clause.  Because the North Carolina Supreme Court held that Agent Testify’s opinion was the substantive evidence as to the nature of the unknown substance, the admissibility of that opinion under N.C.R.Evid 702(a)(1)-(3) warrants closer scrutiny.  Remember our first presupposition: if the rules of evidence exclude the item we resolve the case on the non-constitutional issue.

Agent Testify must have reached her own conclusion, based on scientific, technical, or other specialized knowledge, that the substance in question was cocaine, and not merely serve as a conduit for the opinion of Agent Test.

In order to determine whether Rule 702(a)(1)-(3) is satisfied, we must first look closely at the opinion actually offered.  The Court in Ortiz-Zape specifically noted that the testifying agent was asked for her “independent expert opinion” as to the identity of the substance tested by the testing analyst.  In other words, Agent Testify must have reached her own conclusion, based on scientific, technical, or other specialized knowledge, that the substance in question was cocaine, and not merely serve as a conduit for the opinion of Agent Test.  Because the opinion goes to the nature of the substance and not whether Agent Test was correct in her conclusion, we must determine whether Agent Testify had sufficient facts and data to reach such a conclusion, whether she applied reliable principles and methods, and whether she applied those principles and methods reliably to the facts and data before her.

Ordinarily, a forensic scientist seeking to determine the nature of an unknown substance has, of course, the unknown substance, various chemicals to which she may expose the unknown substance in order to observe the chemical reaction, equipment to measure the melting point of a substance, machines and instruments with which to weigh, measure, and determine the molecular make-up of the unknown substance, as well as the chemical make-up of known substances, such as cocaine, with which to compare the results of her tests on the unknown substances.  Thus, in the ordinary case it would seem that sufficient facts and data are available to answer the question presented.

I wonder how many undergraduate or graduate programs in chemistry teach that one can scientifically determine the nature of an unknown substance by merely reading and accepting without question what another scientist has done.  If that were truly an appropriate scientific inquiry, science would still be of the opinion the world was flat.

But when Agent Testify purports to give an opinion as to the nature of an unknown substance, what facts and data does she have?  She has none of what Agent Test had.  All she has is what Agent Test said she had.  The question becomes whether an opinion based on “scientific, technical, or other specialized knowledge” can really be so based if it rests entirely upon the written report of someone else.  Is that how scientists really go about applying the scientific method?  I always thought scientists actually applied scientific methods to the question before them and reached a conclusion based upon the results of those methods.  I wonder how many undergraduate or graduate programs in chemistry teach that one can scientifically determine the nature of an unknown substance by merely reading and accepting without question what another scientist has done.  If that were truly an appropriate scientific inquiry, science would still be of the opinion the world was flat.

Ah, but Agent Testify actually went to the GCMS machine and looked at the “raw data” and compared that printout with the lab standard for cocaine and used her scientific knowledge to conclude the material analyzed was cocaine.  If that is “sufficient facts and data” to reach a conclusion that an unknown substance is cocaine, why did Agent Test perform other scientific tests?  Why test the unknown substance’s melting point?  Why run the cobalt thiocyanante test?  Why does the lab protocol require other procedures before an analyst can confidently determine the chemical composition of an unknown substance?  And, of course, Agent Testify did not perform or even observe any of the other tests or lab procedures performed by Agent Test, she merely read about them in Agent Test’s report and accepted them without question.

Furthermore, the only way Agent Testify “knows” the specimen number in the file and the specimen number stored in the GCMS instrument pertain to Bubba’s rock is because Agent Test said so in her report.  She has no independent knowledge or information to verify the specimen referred to in the report and the one stored in the GCMS instrument is Bubba’s.  She may have sufficient facts and data to determine whether Agent Test typed the same number in the GCMS instrument as she recorded in the lab report, but it tells Agent Testify nothing about the actual unknown substance in question.

What she cannot do by looking at the lab file is apply the scientific method and forensic science procedures to the unknown substance seized from Bubba and conclude that it is cocaine.

Agent Testify may have sufficient facts and data to conduct a “peer review” of Agent Test’s work.  She can determine whether the forms were filled out correctly and legibly.  She can evaluate whether the face of the documents reveal compliance with lab protocols.  She can see if the forms were signed in the correct place.  She can even compare the specimen number written on the form with the specimen number stored in the GCMS machine to see if there is a discrepancy.  What she cannot do by looking at the lab file is apply the scientific method and forensic science procedures to the unknown substance seized from Bubba and conclude that it is cocaine.  She simply does not have sufficient facts and data to apply the recognized scientific principles and methods to determine the chemical nature of an unknown substance.

There is also no real question over the reliability of the principles and methods commonly employed by forensic scientists to determine the chemical make-up of unknown substances in routine cases like Bubba’s.  The combination of gas chromatograph-mass spectrometer, infrared spectrometer, melting point, and cobalt thiocyanante reaction tests have all been routinely accepted by courts across the land as reliable principles and methods to determine whether an unknown substance is cocaine. In fact, generally accepted lab protocols require analysts to use more than one test to confirm the nature of an unknown substance. When Agent Test uses these principles and methods to determine the nature of the unknown substance and is called to give an opinion based upon their application, N.C.R.Evid 702(a)(2) is easily satisfied.

Checking the stored data in the GCMS instrument is not a “reliable principle or method” to determine the chemical makeup of Bubba’s rock.

The problem is that Agent Testify, not Agent Test, is the witness.  Agent Testify is not offering an opinion on whether Agent Test’s file reflects compliance with lab protocol.  Rather, the prosecutor called Agent Testify to give an independent opinion that the rock in the plastic baggie seized from Bubba was rock cocaine.  Checking the stored data in the GCMS instrument is not a “reliable principle or method” to determine the chemical makeup of Bubba’s rock.  The only result checking the “raw data” had was to confirm that Agent Test recorded in her file the same number that was entered, at some point and by someone, into the GCMS.  Agent Testify has no way to independently verify that Agent Test actually placed Bubba’s rock into the instrument under that reference number or to independently verify that the test was otherwise properly conducted on the actual rock seized from Bubba.

Agent Test may have reliably applied reliable principles and methods to the facts and data available, but that is a unique question in every case and one that Agent Testify’s “peer review” cannot determine.  Did Agent Test accurately weigh the material in this case?  Did she apply the correct amount of reactive agent to the unknown substance to get an accurate presumptive test result?  Did she correctly observe the melting point of the unknown substance?  Was the GCMS free of other substances when she ran Bubba’s sample so the output would reflect the composition of material Bubba is charged with possessing and not that of a previous test?  Did she correctly enter the identifying number associated with Bubba’s case into the machine so that someone checking the result later would actually be looking at the analysis of Bubba’s rock, and not someone else’s?  Did she properly handle and account for Bubba’s unknown substance to avoid the possibility of contamination within the lab?

Agent Testify can review the paperwork to determine whether Agent Test said she did those things properly, but Agent Testify cannot independently confirm any of it.  That may well be sufficient for internal laboratory “peer review,” but the issue in this case is whether Bubba’s rock is cocaine, not whether Agent Test’s file passed “peer review.”  Conflating these two separate and distinct questions ignores the more rigorous and exacting standards of admissibility of expert opinion imposed by the amendments to N.C.R.Evid 702(a).  Because Agent Testify did not apply the “reliable principles and methods” used by forensic scientists to determine the chemical composition of unknown substances, her opinion fails to meet the requirements of N.C.R.Evid 702(a)(1) and (2) and is not sufficiently reliable to put before the jury.  In this instance, the Rules of Evidence—not the Confrontation Clause—excludes the opinion testimony of Agent Testify.

Basing an opinion on the reported results of another’s test is simply a procedural review, at best, of the actual test and cannot answer the essential question from a scientific perspective.

In Ortiz-Zape and Brewington, the Court stressed that the opinion testimony of the testifying analyst was the substantive evidence of the nature of the unknown substances.  The Court also emphasized that the testifying analyst was the witness the accused had the right to confront.  Though the testifying analyst relied upon the lab report of the testing analyst in forming her opinion, the Court noted that experts may base an opinion on otherwise inadmissible evidence if it is of a “type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject….”  In other words, N.C.R.Evid 703 recognizes that the “sufficient facts and data” required to support a reliable forensic analyst’s opinion as to the nature of an unknown substance under N.C.R.Evid 702(a)(1) need not be in the form of admissible evidence if other forensic analysts reasonably rely upon such information in reaching their conclusions to similar questions.  In Ortiz-Zape, the Court pointed to the following exchange between the testifying analyst and the prosecutor as the foundation for Rule 703:

Q.  And are these tests [color test, melting point, and GCMS] standards such that other experts in the field of forensic chemistry would rely upon them in performing [sic] the opinion as to the identity of a chemical substance?

A. Yes, they are. ² 

Note that these are actually the “reliable principles and methods” required by N.C.R.Evid. 702(a)(2), which forensic analysts apply to determine the chemical structure of unknowns substances, not the “facts and data” envisioned by N.C.R.Evid. 702(a)(1). Obviously, forensic analysts around the country apply these tests to determine the nature of unknown substances.  But the real question under N.C.R.Evid. 703 is whether forensic analysts rely upon the statements of other forensic analysts reporting their test results to determine the nature of unknown substances.  Neither the Federal Bureau of Investigation nor the Scientific Working Group for the Analysis of Seized Drugs list accept on faith the accuracy of reports by another analyst as an appropriate analytical scheme upon which to identify an unknown drug. ³   Simply put, for a qualified scientist to offer an opinion as to the nature of an unknown substance based upon reliable application of reliable scientific principles and methods, the scientist must perform those scientific tests.  Basing an opinion on the reported results of another’s test is simply a procedural review, at best, of the actual test and cannot answer the essential question from a scientific perspective.

 Scientific inquiry, especially forensic scientific inquiry into the nature of an unknown substance, requires applying the appropriate scientific principles and methods, not merely accepting what others have said about their own application of those principles and methods.

While “peer review” of the work of scientists in the lab is important to maintain credibility, consistency, and confidence in the lab’s work product, unquestionably adopting the reported test results of others is not how the forensic analyst brings the principles of scientific inquiry to play in determining the nature of an unknown substance.  Scientific inquiry, especially forensic scientific inquiry into the nature of an unknown substance, requires applying the appropriate scientific principles and methods, not merely accepting what others have said about their own application of those principles and methods.  Conflating the reported results of one analyst’s application of reliable principles and methods of scientific testing into the “facts and data” relied upon by another analyst who had no personal involvement, nor any independent knowledge of the testing, ignores the difference between the reliability of an opinion under N.C.R.Evid. 702(a) and the source of information experts may reasonably rely upon under N.C.R.Evid. 703 in applying the reliable principles and methods of their discipline. ⁴ 

Returning to Bubba’s case, it seems apparent that Agent Testify’s opinion as to the nature of the substance is not reliable under N.C.R.Evid. 702(a), and reliance upon the “otherwise inadmissible” language of N.C.R.Evid. 703 does not save it.  Based on the information she reviewed, Agent Testify’s opinion would only be admissible under North Carolina’s amended Rule 703(a) if we concluded that unquestionably assuming the accuracy of Agent Test’s recorded results is a “reliable principle or method” for forensic scientists to use in determining the nature of an unknown substance.  Nor is the opinion made more reliable by Agent Testify’s personal retrieval of the stored “raw data” in the GCMS instrument.  The only way we know that data applies to Bubba, not to mention that the tests itself was conducted correctly, is because Agent Test said so.  Thus, we are back to the unquestioning reliance upon the work of another to develop an “independent” opinion as to the nature of an unknown substance.  Hardly a reliable scientific principle or method.

Labeling the opinion of the testifying analyst as the substantive evidence that the defendants had the right to confront, when that opinion was based almost exclusively on the work of the testing analyst, assumed the question rather than analyzing it.

A scientist accepted as an expert witness must give an opinion based upon the application of reliable scientific principles and methods to the facts and data at hand.  The facts and data upon which the scientist brings to bear the reliable scientific principles and methods of her discipline do not need to be admissible if they are the sort of facts and data reasonably relied upon by other scientists in performing their daily scientific duties apart from forensic work.  However, the “facts and data” envisioned by Rule 703 are those that are contemplated by Rule 702(a)(1) and do not take the place of the reliable application of reliable principles and methods required by Rule 702(a)(2) and (3).

The most Agent Testify could say is that assuming Agent Test’s report was true, accurate, correct, complete, and followed protocol exactly, she agreed with Agent Test’s opinion that the drug was cocaine.  But that is not an “independent opinion” as to the identity of the unknown drug, no matter how the prosecutor frames the question, and it does not satisfy the government’s burden of proof that Bubba possessed cocaine.  The State must prove the substance was cocaine, not that Agent Testify believes Agent Test got it right.  The principles and methods applied by Agent Testify in this instance could only produce an opinion as to the correctness of Agent Test’s work and cannot support an independent analysis of the unknown material and reach a conclusion as to its chemical makeup.  While Agent Testify may bolster Agent Test’s opinion, the State’s obligation to prove the nature of the substance is only satisfied with the admission into evidence of Agent Test’s opinion.

Like the exclusion of the lab report as substantive exhibits because it does not fit within an exception to the hearsay rule, the failure of Agent Testify’s opinion to satisfy the reliability standards of the expert opinion rule precludes its admission without regard to the Confrontation Clause issue. ⁵  Again, we have a straightforward application of our first presupposition.  But what if the Court did find Agent Testify’s opinion sufficiently reliable to be admissible under N.C.R.Evid. 702?  Should that end the inquiry?  Or, does the Confrontation Clause still have some impact?

As the Court noted in Ortiz-Zape, the opinion of the testifying analyst was the substantive evidence and since the defendant had the right to cross-examine the testifying analyst at trial, there was no Confrontation Clause violation.  The fact that the testifying analyst relied upon the work of the testing analyst, which was not admissible unless the testing analyst was presented for cross-examination, did not matter because the Court found that N.C.R.Evid. 703 allowed the testifying analyst to base an opinion upon otherwise inadmissible evidence.  Essentially, State evidence law trumped the Sixth Amendment.  That violates our second presupposition.

The Court, of course, was limited by the record before it and the questions presented by the parties.  It does not appear that the Court really considered whether State evidence law could admit through the back door of expert testimony what the Sixth Amendment turned away at the front door.  Labeling the opinion of the testifying analyst as the substantive evidence that the defendants had the right to confront, when that opinion was based almost exclusively on the work of the testing analyst, assumed the question rather than analyzing it.

When the right to confront directly conflicts with the efficient operation of the State crime labs, we must first consider how to avoid the conflict in the first place.

The proper approach would be to weigh the constitutional importance of the right protected by the Confrontation Clause against the State’s interest in the efficient operation of the crime lab.  Our third presupposition is that the right to cross-examine witnesses is a fundamental right in our criminal justice system.  Accordingly, it must carry significant weight in any analysis.  To be sure, efficient operation of the forensic labs is an important interest as well.  The State Legislature recognized that fact when it put into place the various notice and demand statutes that simplified the admissibility of forensic lab reports in criminal trials.

When the right to confront directly conflicts with the efficient operation of the State crime labs, we must first consider how to avoid the conflict in the first place.  Obviously, the most direct avoidance is to produce Agent Test at trial.  She appears, testifies, and is subject to cross-examination.  But that doesn’t consider the efficient operation of the State crime labs; that’s merely a capitulation to the defendant’s interests without considering the State’s efficiency interests.  Not really.  Under the Testing Analyst and Testifying Analyst paradigm some forensic analyst will have to testify and if is the analyst that did the work it avoids the Confrontation Clause issue.  In any given case at least one forensic analyst will be in the courtroom and not the lab.  Why not the analyst who did the actual testing?

Another option is to use the notice and demand statutes that are already on the books.  The legislature passed them for a reason.  They create a mechanism to determine early on whether the defendant is really interested in actually cross-examining Agent Test or whether he’s just trying to create an appellate issue.  Defendants waive constitutional protections at many points during the criminal justice process; the notice and demand procedures merely present and memorialize that decision.  Some defendants may insist upon calling Agent Test and live to regret it.  Most competent defense counsel will realize when they have a case where cross-examination of Agent Test will help and when it will hurt.

A competent forensic scientist explaining to the jury her careful application of well-established scientific tests to determine that the material in Bubba’s baggie was rock cocaine may be the last thing the defense wants the jury to experience.  Waiving cross-examination of the analyst and admitting the lab report may be in the defense’s best interest.  This, of course, furthers the State’s interest in efficient operation of its crime labs, as well.   Neither the Testing Analyst nor the Testifying Analyst need to leave their work bench and spend their time sitting in the courthouse hall waiting to be called to the witness stand.

Relying upon N.C.R.Evid. 703 to permit the Testifying Analyst to offer an opinion that is merely a recitation of the Testing Analyst’s conclusions disguised as an “independent opinion” elevates form over substance and places semantics above constitutional rights.

As I noted in Part II of this series, the real point of departure between the majority and dissenting Justices in the recent North Carolina cases, is in determining whether the Testifying Analyst has truly reached an “independent” opinion as to the nature of the unknown substance.  Justice Hudson, Chief Justice Parker, and Justice Beasley are of the view that without some sort of independent testing there can be no independent opinion.  Justice Newby, Justice Edmunds, Justice Jackson, and Justice Martin are comfortable with the Testifying Analyst reviewing the Testing Analyst’s work and reporting the result as her own independent opinion, if she has at least looked at the data stored in the GCMS machine.

The majority’s approach fails to give sufficient consideration to the three presuppositions noted above.  First, they avoided the constitutional issue by finding the substantive witness was the Testifying Analyst instead of the Testing Analyst, but they failed to subject the Testifying Analyst’s expert opinion to the scrutiny required under the Rules of Evidence before declaring it admissible.  Instead, the majority held that an exercise designed to promote quality assurance within the lab was a determination of the nature of an unknown substance.  The procedures followed by the Testifying Analysts in conducting the “peer review” of the Testing Analyst’s work simply cannot produce an independent opinion as to the chemical nature of the unknown substance.  The Testifying Analyst’s opinion is based completely upon the work of the Testing Analyst.  Without some sort of independent application of recognized scientific principles and methods, there simply cannot be a reliable independent opinion as to the chemical nature of an unknown substance.

Second, they gave no real weight to the principle that State evidence rules cannot trump rights guaranteed by the Constitution.  Relying upon N.C.R.Evid. 703 to permit the Testifying Analyst to offer an opinion that is merely a recitation of the Testing Analyst’s conclusions disguised as an “independent opinion” elevates form over substance and places semantics above constitutional rights.

Third, they failed to give appropriate consideration to the fundamental right of cross-examination in our criminal justice system.  Sanctioning a procedure that permits the State to offer an expert opinion on the nature of an unknown substance by one who has not seen, handled, tested, evaluated, or otherwise subjected the unknown material to any recognized scientific test or analysis—while at the same time shielding from cross-examination the scientist who actually did all those things—makes a mockery of the right to confront adverse witnesses.

When or whether the Court’s Confrontation Clause framework will be revisited is anyone’s guess.  In the meantime, defense counsel should persist in raising appropriate objections under the Rules of Evidence as well as the Confrontation Clause.  Only by protecting and preserving the record at trial will the appellate courts ever have the opportunity to revisit this important issue.  Trial judges should carefully perform their gatekeeping function and insure the opinion evidence offered satisfies the heightened standard of the new N.C.R.Evid. 702.  Prosecutors should avail themselves of the notice and demand procedures provided for in State law and approved by the Unites States Supreme Court.  If the defendant objects and demands the right to cross-examine the Testing Analyst, the prosecutor should call her unless she is truly unavailable.  If the Testing Analyst is truly unavailable, the prosecutor should insist the Testifying Analyst actually conduct an independent analysis of the unknown substance using reliable scientific principles and methods and not just rely upon the work of the Testing Analyst.

Following the steps outlined above will promote confidence in our system, protect important constitutional rights, and give prosecutors the flexibility they need to manage a large caseload with limited resources.