Prove it! Musings on advocacy, evidence, and the problems of proof at trial: Confrontation and Cocaine, part III.a
An application of the recent Ortiz-Zape decision reveals the steps North Carolina lawyers need to take to protect their client and promote confidence in the justice system.
My last two columns (part I, part II) have reviewed the North Carolina Supreme Court’s recent Confrontation Clause rulings. I have criticized the Court’s creation of the Testing Analyst and Testifying Analyst paradigm that precludes the criminal defendant from ever having the opportunity to cross-examine the forensic chemist who actually conducted the laboratory analysis of the suspected controlled substance at issue. From my privileged perch high atop the ivory tower, I have second-guessed all the players in these cases. Defense counsel didn’t make the right arguments. Prosecutors shielded important witnesses from cross-examination. Judges failed to understand and appreciate the consequences of their analysis.
Though the defense lawyers, prosecutors, and judges may care less, I think it only fair to go out on the proverbial limb and set out how I think the law should be applied in this important and complicated area. What follows is an analytical framework that I think should guide North Carolina lawyers and courts in their application of the Confrontation Clause to the problem of forensic lab results. It seeks to preserve critical constitutional protections while taking into consideration the practical aspects proving the chemical make-up of unknown substances.
Unless and until either the United States Supreme Court clarifies its Confrontation Clause jurisprudence or the North Carolina Supreme Court reconsiders its approach, it is what it is and North Carolina lawyers and judges must deal with it.
I offer this framework as a way to analyze the admissibility of forensic lab results within the constraints of existing North Carolina law. In other words, my suggested approach is a way to apply Ortiz-Zape in future cases at the trial court level. Even though I think the Court’s analytical framework fails to appreciate the scope and importance of the Sixth Amendment, unless and until either the United States Supreme Court clarifies its Confrontation Clause jurisprudence or the North Carolina Supreme Court reconsiders its approach, it is what it is and North Carolina lawyers and judges must deal with it.
Before getting into the weeds of the analysis, let me first set out three basic presuppositions: First, courts should avoid constitutional adjudication if the issue can be resolved on non-constitutional grounds. The North Carolina Supreme Court has told the lower courts of our State to “avoid constitutional questions, even if properly presented, where a case may be resolved on other grounds.” In the context of Confrontation Clause issues, this means that any analytical framework must begin with whether the evidence offered by the prosecution is admissible under the Rules of Evidence. The constitutional question of whether the Confrontation Clause demands cross-examination at trial if the opportunity for cross-examination at the time the statement was made was not afforded need only be reached after the evidence clears the hurdles imposed by State evidence law.
Second, if the Constitution excludes an item of evidence, it is inadmissible even though it may satisfy the admission requirements imposed by state evidence rules. Indeed, Crawford v. Washington, Hammon v. Indiana, Melendez-Diaz v. Massachusetts (pdf), and Bullcoming v. New Mexico (pdf) all excluded evidence that satisfied the admission standards of the various state evidence rules. If the Constitution excludes the item of evidence, it simply does not matter that it meets an exception to the hearsay rule or passes the relevant and reliable standard for expert opinion. Our own evidence rules unequivocally adopt this principle: “All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States….”
Cross-examination is the procedural mechanism guaranteed by the Constitution by which the criminal defendant can test the reliability of particular testimony that state evidence rules have admitted.
Third, under our adversarial system of criminal adjudication, the right of the defendant to confront the witnesses against him is fundamental to a fair trial. Okay, I realize there may be some disagreement over who the “witnesses against” the defendant are, but we’re not there yet; that’s part of the weed whacking. At this point, let’s just agree that the right to cross-examine adverse witnesses is a fundamental right afforded the accused in our system. 1 Whether a particular criminal defendant is entitled to this fundamental right in the context of a particular item of evidence or offered testimony does not turn on whether the evidence sought to be admitted is otherwise reliable or trustworthy. The Crawford Court was clear on this point in overruling Ohio v. Roberts. 2 Excluding unreliable and untrustworthy evidence is a function of state evidence law. Rules governing the authentication of items of evidence, 3 the requirement to produce the original when seeking to prove the contents of a writing, 4 expert opinion testimony, 5 and the rule against hearsay 6 all seek to screen out unreliable or untrustworthy evidence. Testing the reliability of witnesses before the jury is a function of cross-examination. Cross-examination is the procedural mechanism guaranteed by the Constitution by which the criminal defendant can test the reliability of particular testimony that state evidence rules have admitted. Of course, not all of the State’s evidence offered at trial will implicate the Confrontation Clause, but whether the Confrontation Clause applies in a given situation is part of the analytical weed-whacking and does not change the fact that cross-examination is how the Constitution envisioned testing the reliability of testimonial evidence before the jury.
With these presuppositions in mind, let’s consider these facts: Bubba was stopped by police for riding his bicycle after dark without lights or reflectors. As the officer got out of his car he saw Bubba reach into his pocket, remove a small object, and drop it on the ground. The officer picked up the object, a small plastic baggie containing a rock-like substance that looked like crack cocaine. Subsequent chemical analysis by Agent Test, a forensic chemist at the SBI lab, confirmed the substance was cocaine. Agent Test prepared an official lab report of her testing of Bubba’s baggie. The report included the case number assigned to the matter, the weight of the substance as measured by Agent Test, the results of a cobalt thiocyanate test that indicated the substance was probably cocaine, and the results of a gas chromatograph-mass spectrometer (GCMS) that confirmed that the material was cocaine. Agent Test signed the official report and placed it in the case file.
Subsequently, Agent Testify pulled the case file and reviewed the official report. She noted that the paper work seemed to be in order, that all entries were legible, and that it appeared from the face of the report that appropriate tests were run and proper protocol was followed. Specifically, Agent Testify noted that Agent Test reported the substance weighed 5 grams before any tests were conducted. In the body of the official report, Agent Testify read that Agent Test’s results showed that the cobalt thiocyanante test turned blue, indicating the likely presence of cocaine. Agent Testify also read that Agent Test reported the printout graph from the GCMS on the unknown substance matched the standard graph for cocaine. Agent Testify then keyed into the GCMS machine the test number as recorded by Agent Test in the official report and compared the machine-stored test result with that reported by Agent Test. The machine-stored data was the same as that reported by Agent Test and it matched the lab standard for cocaine.
At Bubba’s trial for the possession of cocaine, the prosecutor must prove the substance the police officer saw Bubba remove from his pocket and discard was cocaine.
At Bubba’s trial for the possession of cocaine, the prosecutor must prove the substance the police officer saw Bubba remove from his pocket and discard was cocaine. The prosecutor could call Agent Test and present her expert opinion that the substance was cocaine. Alternatively, the prosecutor may offer the official lab report that contains the results of the tests and includes Agent Test’s opinion that the material was cocaine. Finally, the prosecutor could call Agent Testify and present her expert opinion, based on Agent Test’s report and the readout of the GCMS machine, that the substance was cocaine.
The first option—call Agent Test—easily satisfies the Confrontation Clause requirement. If the trial judge finds by a preponderance of the evidence that Agent Test is a qualified forensic chemist, that she had sufficient facts and data from which to determine the nature of the unknown substance, that she used reliable principles and methods to determine the nature of the unknown substance, and that she applied those reliable principles and methods reliably to the facts and data before her, she will be permitted to tell the jury that, in her opinion, the substance in Bubba’s baggie was cocaine. Despite the judge’s determination that her testimony meets the qualified, relevant, and reliable standards imposed by the rules of evidence, she will still be subject to cross-examination before the jury. Maybe the cross-examination will lessen the jury’s reliance on her opinion. Maybe it won’t. In either case, Bubba’s right to confront the witnesses against him has been preserved.
The second option is for the prosecutor to offer the official report of the lab testing into evidence as an exhibit. This is almost easier done than said. The Court in Melendez-Diaz noted with approval simple “notice and demand” statutes that provide the defendant with a copy of the lab report and notice the State intends to offer the lab report into evidence without calling the analyst. If the defendant does not object within the statutory time period, he has waived his right to confront the analyst and the report is admissible to prove the nature of the substance. After Melendez-Diaz, the North Carolina legislature amended N.C. Gen. Stat. §90-95(g), which requires the prosecutor to give the defendant a copy of the report and written notice of its intent to introduce the document fifteen business days prior to trial. The defendant must file an objection at least five business days before trial or he waives his confrontation rights. 7 The failure to object within the statutory period also waives any objection based on the Rules of Evidence.
With minimal forethought, a reasonably competent prosecutor can arrange for production of the original lab report as well as the necessary witness to authenticate the document.
If Bubba files a written objection to the prosecutor’s notice of intent to offer the lab report without calling the analyst, then all bets are off. The lab report would be an out-of-court statement made by Agent Test offered to prove the truth of the matter asserted, i.e., the substance tested was cocaine. Assuming Bubba’s counsel was prepared to resist introduction of the report on all fronts, the prosecutor would have to produce the original, or a duplicate, offer admissible evidence sufficient to support a finding that the document was what the State claimed it to be, i.e., the lab analysis of the substance Bubba is charged with possessing, convince the trial judge the exhibit has some tendency to make a the existence of a fact of consequence to the determination of the action more probable, or less probable, than it would be without the evidence, persuade the trial judge that the probative value of the item of evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence, that the exhibit is not excluded by the rule against hearsay, and the opinions contained within the document are those of a qualified expert who had sufficient facts and data and who applied reliable principles and methods reliably to the question at hand in order to reach her opinion.
Of those evidentiary hurdles, all but the hearsay problem and the reliability of the opinion are relatively easily overcome. With minimal forethought, a reasonably competent prosecutor can arrange for production of the original lab report as well as the necessary witness to authenticate the document. In the prosecution of Bubba for possession of cocaine, the low bar of relevance and the high probative value of a report identifying the substance as cocaine are obviously satisfied.
Of those evidentiary hurdles, all but the hearsay problem and the reliability of the opinion are relatively easily overcome.
The hearsay issue is a bit more complicated. Two possible exceptions present themselves for consideration: the Business Records exception and the Public Records exception.
Arguably, the work of Agent Test in analyzing the substance the police seized from Bubba is part of the “regularly conducted activity” of the SBI lab, and it was the “regular practice” of the lab to prepare and keep such reports. Furthermore, the report itself was prepared by Agent Test, a “person with knowledge,” and she prepared the report “at or near the time” she conducted the tests. Of course, all of these foundation elements can be established by the “custodian or other qualified witness” without the necessity of calling Agent Test. But, there’s a catch. In State v Forte, the North Carolina Supreme Court held that in a criminal case when N.C.R.Evid 803(8), the Public Records exception, excludes documents, they cannot be admitted under N.C.R.Evid 803(6), the Business Records exception.
In the case against Bubba, we must determine whether Agent Test’s lab report satisfies N.C.R.Evid 803(8) before it can be considered for admission under N.C.R.Evid 803(6). The Public Records exception to the hearsay rule applies to reports that set forth: (A) the activities of the office or agency; (B) matters observed pursuant to a legal duty to observe and report the matters observed, except when the observer was a “police officer [or] . . . other law-enforcement personnel” and the report is offered in a criminal case by either the government or the defendant; and (C) in civil cases and when offered against the government in criminal cases, factual findings from an investigation made pursuant to legal authority, unless the sources of information or other circumstances indicate a lack of trustworthiness.
While Agent Test may not routinely carry a gun, walk a beat, and make arrests, her employment as a forensic chemist in the SBI lab arguably brings her within the ambit of “law-enforcement” personnel.
Does Agent Test’s report fit any of the exceptions carved out in N.C.R.Evid 803(8)? Subsection (A) applies to internal agency matters, like personnel records of government agencies, vehicle registration data, and other routine government records. Clearly, Agent Test’s report of the chemical analysis of the contents of Bubba’s baggie is not merely a report of the activities of the office.
Subsection (B) excepts from the rule barring hearsay, records of matters personally observed by a government official pursuant to a duty to observe and report such matters. Agent Test’s official duties required her to conduct certain chemical tests and “observe” and “report” the results. But there’s an exception to the exception that applies to matters observed by “law-enforcement personnel.” While Agent Test may not routinely carry a gun, walk a beat, and make arrests, her employment as a forensic chemist in the SBI lab arguably brings her within the ambit of “law-enforcement” personnel. Furthermore, in Bubba’s case, Agent Test made her observations and prepared her report as part of the ongoing investigation and preparation for prosecution of Bubba for possession of controlled substances. Unlike State v. Forte, where the DNA analysis of semen found on three murder victims was done some 10 years before the defendant was even identified as a possible suspect, Agent Test’s analysis of the contents of Bubba’s baggie was aimed at producing evidence of an essential element of the offense charged to be used against an identified suspect in an ongoing prosecution for possession of a controlled substance. It certainly seems like Agent Test is part of the law enforcement team employed by the State to prosecute Bubba.
Whether a forensic chemist employed by the SBI crime lab is properly classified “law enforcement personnel” within the meaning of N.C.R.Evid 803(8)(B) is not clear, however. In United States v. Oates, 560 F.2d 45, 63-84 (2d Cir. 1977), the Second Circuit held that a forensic chemist was a “law enforcement” officer and the exception to the exception in F.R.E. 803(8)(B) precluded admission of the lab report. Though not directly addressing the question of whether an SBI chemist is a “law enforcement” officer within the meaning of N.C.R.Evid. 803(8)(B), the North Carolina Supreme Court in State v Smith found the Oates rationale unpersuasive in a case involving an affidavit to prove the defendant’s blood-alcohol level in a District Court proceeding as then permitted by N.C. Gen. Stat. §20-139.1(e1). The Smith Court noted that the equipment used to determine blood-alcohol concentration did not require extensive operator discretion and did not require him to render an opinion or draw conclusions; it was more of a ministerial function than an investigative one. Furthermore, the Court noted that the statute permitting the admission of the affidavit to prove blood-alcohol concentration applied only to District Court proceedings and “the defendant’s right to confront the analyst is ultimately guaranteed by her absolute right to trial de novo in Superior Court.” [ ref] 8. Id. at 382; 328. The Court seemed to assume that introduction of the affidavit in Superior Court would violate the Confrontation Clause. [/ref] The same “ministerial observations” rationale was applied in Forte to find that the DNA analysis done 10 years earlier—and before any suspect was ever identified—was not excluded by N.C.R.Evid 803(8).
Neither Smith nor Forte directly addressed the scope of “law enforcement personnel” in N.C.R.Evid 803(8)(B), but both accepted the notion that the exclusion of reports by “law enforcement personnel” in criminal cases was intended to satisfy Confrontation Clause concerns. Neither case dealt with the application of the plain language of the rule nor considered whether the law enforcement exclusion warranted an inquiry beyond that dictated by the Confrontation Clause. The Court’s current approach, then, would seem to conflate the “testimonial” analysis and the 803(8) analysis.
If the lab report is the typical forensic analysis of an unknown substance seized from a suspect charged with possession of a controlled substance, the entire purpose of the chemical testing is to further the prosecution.
If the document, like the DNA reports in Forte, is not “testimonial” because it “concern[s] routine, nonadversarial matters . . . [where] potential use in court was only one purpose among several served by [its]. . . creation,” the Court will most likely find it not excluded by 803(8)(B) and, thus, admissible under that exception and under the Business Records exception. If, however, the lab report is the typical forensic analysis of an unknown substance seized from a suspect charged with possession of a controlled substance, the entire purpose of the chemical testing is to further the prosecution. While the chemical testing itself may be routine in the sense that a prescribed protocol is followed, it is not a nonadversarial exercise. Indeed, the substance itself is identified and linked to the named suspect from whom it was seized. Thus, the lab report on the substance seized from Bubba would, even under the Smith and Forte approach, seem to fall within the 803(8)(B) exclusion. Because it is excluded by 803(8)(B), it cannot be admitted through the backdoor of 803(6).
Another limitation on the 803(8)(B) exception is that it applies to “matters observed” by the government agent and does not extend to opinions or conclusion. By their very nature, lab reports prepared by forensic chemists include their opinions and conclusions concerning the nature of the substance examined based upon the results of the various tests they conduct. Even comparing the GCMS printout of the questioned substance with the standard graphs for known substance involves a degree of analysis and judgment. The forensic chemist must reach a conclusion that the two graphs are sufficiently similar so that the chemist can then conclude the unknown substance is, indeed, cocaine. Accordingly, the typical forensic analysis of unknown substances involves more than mere observation and is not within the 803(80(B) exception. This removes it from the ambit of N.C.R.Evid 803(6), as well.
Unlike subsection (B) of Rule 803, subsection (C) goes beyond “matters observed” and excepts from the hearsay rule “factual findings resulting from an investigation made pursuant to authority granted by law.” “Factual findings” include opinions of qualified government investigators. But these are only admissible in civil litigation and against the State in criminal cases. Thus, N.C.R.Evid 803(8)(C) clearly excludes the opinions and conclusions of SBI lab analysts that are contained in their official reports when offered by the State against the criminal defendant. Because they are excluded by 803(8)(C), they are not admissible through 803(6), either.
The Rules provide an opportunity for the opponent to present facts that may cast doubt upon the objectivity, competence, care, qualification, methodology, and/or motivation of the government agent who created the report.
The final limitation on N.C.R.Evid 803(8), as well as to N.C.R.Evid. 803(6), is that a report that falls within one of the three subsections is excluded if “the sources of information or other circumstances indicate lack of trustworthiness.” 8 This does not impose an affirmative obligation on the proponent to prove trustworthiness in addition to the other factors that would bring the document within the exception. It does, however, provide an opportunity for the opponent to present facts that may cast doubt upon the objectivity, competence, care, qualification, methodology, and/or motivation of the government agent who created the report. In the context of forensic lab reports generated by the North Carolina SBI Crime Lab, the trustworthiness issue would seem to be one of particular importance to judges, lawyers, and prosecutors. In her dissent in Ortiz-Zape, Justice Hudson noted, “Recent events have proved that these [trustworthiness] concerns about forensic testing are more than just mere speculation.” 9 Even if a given lab report otherwise met the 803(8) standards, it would seem that in light of the “recent events” referred to by Justice Hudson, defense counsel would be well advised to raise the lack of trustworthiness concerns in an effort to exclude the report under the law of evidence and preserve the issue for appeal.
Based upon the above analysis of Agent Test’s lab report in the prosecution of Bubba for possession of cocaine, it is apparent that the report, when offered to prove the substance was cocaine, does not meet an exception to the hearsay rule. Accordingly, the rules of evidence exclude the document without regard to whether admission would violate the Confrontation Clause. This is a straightforward application of our first presupposition: courts should avoid constitutional adjudication if the issue can be resolved on non-constitutional grounds. 10
In the context of the important values that underlie the Confrontation Clause, it would seem that the danger of jury misuse of the report as substantive proof would substantially outweigh any probative value of the document to illustrate the opinion of one who did not prepare it.
The North Carolina Supreme Court would likely agree with the above analysis if properly presented. In the seven recent Confrontation Clause cases the underlying lab reports were actually admitted as substantive evidence in only one case, State v. Craven. The Court was unanimous in concluding that entering the lab reports as substantive evidence without calling the testing analyst was error. The Court did not, however, analyze admissibility under the Rules of Evidence, but only addressed the question of whether the lab reports were “testimonial” for Confrontation Clause purposes. While this would seem to violate our first presupposition, we must remember that appellate courts are constrained by the record before them and resolve issues raised in the courts below. Trial counsel only raised the Sixth Amendment objection and did not argue either at trial or before the Court of Appeals that the North Carolina Rules of Evidence excluded the lab reports. Unless and until a defense counsel properly preserves the issue we will never know for sure how the Court will rule.
In State v. Williams, the lab reports prepared by the nontestifying analyst were admitted as “illustrative” of the opinion offered by the testifying analyst and the trial judge cautioned the jury to only consider them as such. Because the Supreme Court found any error harmless beyond a reasonable doubt, it did not comment upon the propriety of publishing the underlying lab reports as illustrative exhibits. The combination of the Testing Analyst and the Testifying Analyst paradigm created by Ortiz-Zape and the non-substantive nature of an illustrative exhibit will, no doubt, create the temptation for prosecutors to offer the “independent opinion” of the Testifying Analyst and offer the underlying report as an illustrative exhibit, with the appropriate cautionary jury instruction, of course.
In my view, this approach ignores the powerful impact on the jury of an official document that reports the results of scientific tests. Despite cautionary instructions, it invites the jury to consider it as substantive proof of the results of the chemical analysis. In the context of the important values that underlie the Confrontation Clause, it would seem that the danger of jury misuse of the report as substantive proof would substantially outweigh any probative value of the document to illustrate the opinion of one who did not prepare it. Accordingly, a proper application of N.C.R.Evid. 403 should exclude the report even when offered for illustrative purposes.
Well, if the State does not call Agent Test and the defendant objects to the introduction of the lab report, can the State get around both the Confrontation Clause and the hearsay issues associated with the lab report by calling Agent Testify, instead? Ortiz-Zape would seem to say, “Yes.” But Ortiz-Zape didn’t consider the nuances of the the admissibility of expert opinion testimony under the new Rule 702. We’ll take up that issue in the next column.
[Editor’s note: The second part (part III.b) of Professor Woodruff’s suggested course of action was published Friday, September 13, 2013 and is available here.]