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

Under the testing analyst and testifying analyst paradigm established in State v. Ortiz-Zape, the jury gets to hear an expert opine that a substance has been confirmed as an illegal substance, but the criminal defendant never gets to confront the expert that actually conducted the tests producing that opinion.

Last month we discussed the North Carolina Supreme Court’s decision in State v. Ortiz-Zape where the Court authorized a  “Testing Analyst” and a “Testifying Analyst” structure to deal with the problem of forensic lab results and the Confrontation Clause.  The Court’s holding in Ortiz-Zape shields the “testing analyst” from ever having to face cross-examination if a “testifying analyst” uses the inadmissible lab data developed by the “testing analyst” to reach what the Court referred to as an “independent opinion” as to the nature of the substance examined.  Whether North Carolina Rule of Evidence 703, which permits an expert to base an opinion upon otherwise inadmissible data “if of a type reasonably relied upon by experts in the field” can trump the criminal defendant’s constitutional right to confront the witnesses against him will have to await further consideration by the Supreme Court of the United States.

As noted in last month’s article, the Court issued opinions in a total of seven cases that presented Confrontation Clause issues.  While Ortiz-Zape provided the most detailed discussion of the Court’s Confrontation Clause analysis, a couple of the other cases are worth a brief mention, as well.

State v. BrewingtonNo. 235PA10 (June 27, 2013), was the only case where all seven justices participated and we clearly see the deep division of the Court.  The facts are pretty straight-forward.  Defendant John Brewington was stopped by a Goldsboro police office for riding his bicycle after dark without the required lights and reflectors.  A pat-down revealed an “offwhite, rock-like substance” that the officer believed was cocaine.  The officer arrested Brewington for possession of cocaine and sent the rock-like substance to the State Bureau of Investigation crime lab for analysis.  Chemical analysis confirmed the substance was cocaine, and Brewington was indicted for possession.

The SBI Crime Lab Assistant Supervisor in Charge, Nancy Gregory, conducted a chemical analysis of the substance seized from Brewington, but the State did not call her as a witness at trial.  Instead, the State called SBI Special Agent Kathleen Schell, who was also a forensic chemist at the SBI lab but had not conducted any independent testing of the rock seized from Brewington.  In the Court’s paradigm, Gregory was the “testing analyst” and Schell was the “testifying analyst.”

Brewington’s counsel objected to Schell’s testimony because she did not administer the tests and calling her as a witness deprived the defendant of the ability to cross-examine the chemist who actually conducted the scientific tests on the evidence.  Brewington argued that any opinion offered by Schell would be based on work done by someone else.  After extensive voir dire of Agent Schell, the trial judge overruled the objection.

Schell’s trial testimony detailed the normal procedures followed at the SBI lab in processing unknown substances and described the various tests chemist use to determine the chemical composition of an unknown substance.  She also told the jury that the testing analyst routinely prepares a report of the substance’s test results, which are then reviewed by other analysts.

Cross-examination of Agent Schell left no doubt that she did not observe, participate in, or otherwise conduct any test, analysis, or chemical inspection of the rock-like substance seized from Brewington.

The actual report prepared by Agent Gregory based on her testing of the substance was not offered into evidence.  The prosecutor did, however, ask Agent Schell whether she had formed an opinion, based upon her review of Agent Gregory’s report, as to the nature of the substance the police seized from Brewington.  A defense objection was overruled, and Agent Schell testified that in her opinion the substance was cocaine.

Cross-examination of Agent Schell left no doubt that she did not observe, participate in, or otherwise conduct any test, analysis, or chemical inspection of the rock-like substance seized from Brewington.  Her opinion, she testified, was based entirely on the report prepared by Agent Gregory, and she assumed that Agent Gregory followed all lab procedures and protocols and did not make any mistakes in her work.  Brewington was convicted.

The Court of Appeals reversed and held that admission of Schell’s testimony, which was based entirely upon the chemical analysis performed by Gregory, violated Brewington’s confrontation rights.  The Court of Appeals noted that it was the assumption of compliance with procedures and the presumed absences of any mistakes in testing that needed to be explored on cross-examination to determine the reliability of the evidence as to the chemical nature of the rock-like substance.  Without the opportunity to cross-examine Agent Gregory, Brewington could not explore those critical questions.

“When an expert gives an opinion, the opinion is the substantive evidence and the expert is the witness whom the defendant has the right to confront.”

The Supreme Court reversed based upon their Ortiz-Zape opinion.  Justice Edmunds wrote the majority opinion in which Justices Newby, Jackson, and Martin joined.  Specifically, the Court noted, “when an expert gives an opinion, the opinion is the substantive evidence and the expert is the witness whom the defendant has the right to confront.”  In this case, Agent Schell, not Agent Gregory, provided the “substantive evidence,” and Brewington had the opportunity and did cross-examine her.

The Court also said that “an expert may render an independent opinion based on otherwise inadmissible facts or data.”  Describing Agent Schell’s review of Agent Gregory’s lab report as an “independent opinion formed as a result of her own analysis [and] not merely surrogate testimony,” the Court found the “vigorous and searching cross-examination” of Agent Schell was capable of exposing any weakness in Agent Schell’s opinion and, thus, satisfied Brewington’s Confrontation Clause rights.

Justice Hudson wrote a dissent in which Chief Justice Parker joined.  Justice Beasley dissented in a separate opinion.  Describing the “central question” as “whether the analyst’s opinion is independent or not,” Justice Hudson noted that Schell based her conclusion that the substance was cocaine entirely on the report of Agent Gregory.  Agent Schell’s opinion “involved no independent analysis whatsoever.”

Additionally, the dissent noted that unlike Ortiz-Zape, where the testifying analyst was careful not to refer to the conclusions of the testing analyst, the testifying analyst in Brewington reported the results of the testing analyst’s work, evidence the trial court ruled inadmissible absent the opportunity to cross-examine the testing analyst.  This, Justice Hudson wrote, fails “to follow the guidance of the U.S. Supreme Court’s recent Sixth Amendment opinions, . . . and fail[s] to protect a defendant’s right to confront witnesses against him.”

Justice Beasley’s dissent focused on the nature of the substance seized as a “critical element of the offense charged” and the “person responsible for authoring that evidence becomes a witness against . . . [the defendant].”  Despite the majority’s claim that Agent Schell reached an independent opinion as to the nature of the substance, Justice Beasley viewed “the truth of the matter asserted in a lab report . . . [as] critical to the State’s case . . . and any attempt to reveal the substance of that report, regardless of the stated purpose, without making its author available for cross-examination necessarily violates the defendant’s right to confront witnesses against him.”

Justice Beasley viewed the Ortiz-Zape approach as creating “a back door to evade the Confrontation Clause by merely changing the diction from ‘surrogate’ to ‘independent opinion.’”

North Carolina Rules of Evidence, which allows an expert to base an opinion on otherwise inadmissible evidence, are “entirely without effect when they contradict the Confrontation Clause,” Justice Beasley concluded.  Justice Beasley viewed the Ortiz-Zape approach as creating “a back door to evade the Confrontation Clause by merely changing the diction from ‘surrogate’ to ‘independent opinion.’”  Finding no substantial difference between the facts of Brewington and those of Bullcoming, Justice Beasley chastened the majority for permitting the State to offer “a testifying expert to parrot the report of the nontestifying testing analyst in order to admit evidence of a critical element of the offense charged, . . . [which] clearly violates the Confrontation Clause.”

Lest one think at this point that our Court cannot agree on when the Confrontation Clause is violated, a brief look at State v. Craven is necessary (/appropriate).  Though all participating justices agreed that the lab results in Craven should have been excluded, they do not agree on why.

First, the facts.  Craven was indicted on cocaine trafficking and conspiracy charges as well as for maintaining a place for keeping of controlled substances arising out of three controlled buys set up by Chatham County Sherriff’s deputies.  The controlled buys took place on March 3, March 6, and March 21, 2008.

At trial, the State called Agent Kathleen Schell of the State Bureau of Investigation as its forensic expert.  Agent Schell personally conducted the forensic testing on the drugs seized after the March 21 buy and testified as to her results.  To prove the nature of the substance involved in the March 3 and March 6 buys, the State, over the defendant’s objection, used Agent Schell to authenticate the lab reports from the March 3 and March 6 buys and offered the reports into evidence.  She testified not only as to the contents of the lab reports, but also disclosed the opinion of the reports’ authors, noting her own agreement with those conclusions.

Craven was convicted but the Court of Appeals vacated the convictions arising out of the March 3 and March 6 buys because Craven was not given the opportunity to cross-examine the lab analyst who conducted the chemical analysis of the drugs delivered on those dates.  The conviction arising out of the March 21 buy was affirmed.

Ruling that the underlying lab reports and conclusions of the other testing analysts were “testimonial hearsay,” Justice Jackson found Agent Schell’s “surrogate testimony” violated Craven’s right to confront the witnesses against him.

Writing for the Court, Justice Jackson applied the Ortiz-Zape majority framework and framed the issue as whether the opinion given by Agent Schell was the result of her “independent analysis” or whether she was merely offering “surrogate” testimony for the experts who did the actual testing.  Finding nothing in the trial transcript that would satisfy the evidentiary foundation for an independent opinion under North Carolina Rule of Evidence 702, even if it did rely upon otherwise inadmissible evidence as permitted by North Carolina Rule of Evidence 703, Justice Jackson concluded that Agent Schell merely “parroted Agent Shoopman’s and Agent Allcox’s conclusion from their lab reports.”  Ruling that the underlying lab reports and conclusions of the other testing analysts were “testimonial hearsay,” Justice Jackson found Agent Schell’s “surrogate testimony” violated Craven’s right to confront the witnesses against him.

When one considers the majority’s approach in Ortiz-Zape with the outcome of the Court’s analysis of Agent Schell’s testimony in Craven, it is obvious that the prosecutor could have structured Agent Schell’s testimony in such a way so as to avoid the Confrontation Clause in Craven altogether.  If Schell had been asked the same series of foundation questions approved by the Court in Ortiz-Zape, there is little doubt she could have satisfied the “independent analysis” test and offered her “substantive opinion” under NCRE 702 by relying upon the otherwise inadmissible lab work of Agents Shoopman and Allcox.  Instead of Agent Schell parroting the conclusions of the testing analyst, the prosecutor needed to parrot the questions asked Agent Ray in Ortiz-Zape.  Agent Schell could then parrot Agent Ray’s answers and, like magic, the Confrontation Clause is satisfied and Craven has nothing to complain about.

Justice Hudson, who dissented in Ortiz-Zape, concurred in the result but wrote separately to offer “a methodical approach that is simple to apply to future cases” involving forensic lab testing and results.  This approach, which Justice Jackson specifically rejected in lieu of the Ortiz-Zape paradigm, asks four questions: (1) Are the underlying lab reports testimonial?; (2) Who is testifying based on the reports?; (3) Has the testifying analyst offered an independent opinion based on something other than a review of the reports?; and (4) whether any preserved constitutional error is harmless beyond a reasonable doubt?

Even the majority in Craven agreed the reports themselves were testimonial and should not have been admitted.

Applying that methodology to Craven, Justice Hudson first concluded the lab reports themselves were “testimonial.”  They were prepared specifically for the criminal prosecution of Craven.  Like the forensic reports in Melendez-Diaz and Bullcoming, they were aimed at a specific defendant, reported specific facts probative of the defendant’s guilt of the crime charged, and were used as evidence against the defendant.  Though not specifically addressing all the various permutations of “testimonial” embedded in the Supreme Court’s Confrontation Clause jurisprudence, even the majority in Craven agreed the reports themselves were testimonial and should not have been admitted.  Thus, perhaps Justice Hudson and the majority do agree on something.

In analyzing the second question in Justice Hudson’s methodology, it is equally clear that both the majority and the concurrence agreed that the testifying analyst had no personal knowledge of or connection to the testing of the materials from the March 3 and March 6 controlled buys.  Agent Schell knew only that the tests on the March 3 and the March 6 substances were contained in the reports prepared by the testing analysts.  Since neither Agent Allcox nor Agent Shoopman was subject to cross-examination about their findings, admission of their conclusions as substantive evidence of the nature of the materials tested offends the Confrontation Clause.  To this point, the majority and concurrence seem to be in agreement not only on the basic approach, but to the outcome, at least in this particular case.

Justice Hudson’s third question, whether the testifying expert offered an independent analysis based on something other than a review of the underlying lab reports, is also one both the majority and the concurrence addressed.  Again, they agreed that Agent Schell did no independent testing and did not arrive at an independent opinion as to the nature of the substances.  Rather, Agent Schell merely served as a conduit for the opinions of Agents Allcox and Shoopman.

Comparing Craven with Brewington and Ortiz-Zape, however, we can see the basic disagreement between Justice Hudson and the majority.  Justice Hudson would find an opinion based solely on the reported work of the testing analysts without any additional chemical testing by the testifying analyst inadmissible.  In her view, this would not constitute an independent opinion, regardless of whether the prosecutor and the testifying analyst followed the script for admission of expert opinion based on otherwise inadmissible evidence if that otherwise inadmissible evidence was the sort relied upon by experts in the field.  The majority, of course, would not.

The fourth question in Justice Hudson’s methodology asks whether the preserved error was harmless beyond a reasonable doubt.  Interestingly, Justice Hudson did not apply this fourth factor to the error assigned in Craven, even though the majority noted that the Court was evenly divided on whether the error in admitting testimony as to the nature of the substance involved in the March 6, 2008, buy was harmless beyond a reasonable doubt.  Thus, the Court of Appeals opinion finding that the State had not met its burden of showing harmless error was affirmed.

The real disagreement centers on how to determine whether the testifying analyst really has an “independent opinion” or whether the opinion is merely a conduit for the testimonial hearsay of the testing analyst.

On its face, then, the Court seemingly applied Justice Hudson’s four-step methodology.  The real disagreement inherent in the method centers on how to determine whether the testifying analyst really has an “independent opinion” or whether the opinion is merely a conduit for the testimonial hearsay of the testing analyst.  Justice Edmunds, Justice Newby, Justice Jackson and Justice Martin see the North Carolina Rules of Evidence as a relatively easy route around the Confrontation Clause while Justice Hudson, Chief Justice Parker, and Justice Beasley would subject the testifying analyst’s opinion to a more exacting scrutiny.

Now that I’ve spent two columns dissecting the various views of the Justices in this important area, I think it only fair that I offer my own framework for properly analyzing the admissibility of forensic lab testing.  That will be Part III.

Professor Woody Woodruff
About Professor Woody Woodruff (10 Articles)
Professor Woodruff has been teaching evidence and trial advocacy at Campbell University School of Law for over 20 years. Prior to joining the Campbell faculty, he was a colonel in the Army Judge Advocate General’s Corps and was responsible for defending the Army in civil litigation. Professor Woodruff graduated from the University of Alabama and received his J.D., magna cum laude, from the University of South Carolina. Click here to view Professor Woodruff's full bio on the Campbell Law website.
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