Prove it! Musings on advocacy, evidence, and the problems of proof at trial: Confrontation, Confusion, and Cocaine – Clear, but not Convincing

Under the testing analyst and testifying analyst paradigm that is now the law in North Carolina, the jury gets to hear an expert opine that a substance is cocaine, but the criminal defendant never gets to confront the expert who actually conducted the tests that produced that opinion.

Photo by: Cole Hayes

Does the Confrontation Clause of the Constitution require the prosecutor to call the lab analyst who actually conducted the chemical analysis of suspected drugs, or may another qualified expert give an opinion based on the laboratory records?  That was the essence of the question in seven cases argued before the Supreme Court of North Carolina in February, 2013.  We now have the answer: An expert other than the lab analyst who did the work can give an opinion as to the substance of the material analyzed, but you have to phrase the question just right.

State and federal courts have grappled with the application of the new Confrontation Clause standard to modern forensic techniques.

Since the Supreme Court of the United States decided Crawford v. Washington in 2004 and overruled Ohio v. Roberts, state and federal courts have grappled with the application of the new Confrontation Clause standard to modern forensic techniques. The forensic lab report trilogy of Melendez-Diaz v. MassachusettsBullcoming v. New Mexico (pdf), and Williams v. Illinois (pdf) added some clarity and more confusion to this contentious area of the law.

In Melendez-Diaz, a 5-4 Court held that admitting into evidence a “certificate of analysis” certifying that the substance seized from the defendant was cocaine, without giving the defendant an opportunity to cross-examine the lab analyst, violated the Sixth Amendment.  Two years later the same 5-4 split held in Bullcoming that introduction of a machine generated report establishing the defendant’s blood-alcohol level through the in-court testimony of an expert familiar with the lab procedures, but who had no involvement with the actual blood test in the case, was also a violation of the Confrontation Clause.

The following year, Williams held that in-court testimony by a qualified expert that a DNA profile produced by an outside laboratory from semen found on the rape victim matched a profile produced by the state police lab from a sample of the defendant’s blood did not violate the defendant’s confrontation rights.  While Williams was another 5-4 decision, the line-up was a bit different.  The dissenters in Melendez-Diaz and Bullcoming, Justices Kennedy, Roberts, Breyer, and Alito, were joined by Justice Thomas, who concurred in the result but not the rationale.  Justice Kagan wrote a dissent in which Justices Scalia, Ginsburg, and Sotomayor joined.

The 4-1-4 nature of the Williams decision means that no single theory carried a majority of the Court.

At first-blush, one might think that Williams broke new ground and provided a way in which prosecutors could prove the nature of a substance at trial without having to produce the lab analyst who actually conducted the test.  But upon closer analysis, Williams will not carry that load.  The 4-1-4 nature of the decision means that no single theory carried a majority of the Court.  Four justices viewed the lab report from the private lab as non-testimonial and beyond the purview of the Confrontation Clause because it was an objective scientific test carried out by an independent laboratory at a time when the defendant was not even a suspect in the rape.  In the view of the Kennedy, Roberts, Breyer, Alito quartet, the analyst at the private lab who performed the tests that produced the DNA profile was not a “witness against” the accused and the Confrontation Clause did not guarantee him a right to cross-examination.

The plurality opinion also noted that the DNA profile was not admitted for its truth value but was the type of evidence routinely relied upon by experts in the field and was, thus, a proper basis under Illinois evidence rules upon which the testifying expert could base his opinion.  Because the DNA profile was not admitted for the truth of the matter asserted, it was not testimonial hearsay and the Confrontation Clause did not require the state to produce the lab analyst for cross-examination.  Justice Alito stressed, in this regard, that Williams was a bench trial and the trial judge was certainly capable of only using the DNA profile evidence for its basis of opinion use and not for its truth value.  Whether a jury of laypersons was capable of accomplishing the same intellectual feat was not something the Court had to decide in this case, but the plurality opinion took care not to suggest that the Confrontation Clause would apply differently if a jury were the fact finder instead of the judge.

Justice Kagan, writing for Ginsburg, Scalia, and Sotomayor argued that the case was indistinguishable from Melendez-Diaz and Bullcoming.  Calling the testifying expert’s opinion “functionally identical” to the surrogate testimony rejected in those earlier cases, the dissent noted that in Williams the defense counsel was in an even more difficult position to challenge the testimony.  At least the surrogate experts in Melendez-Diaz and Bullcoming were part of and familiar with the procedures of the lab that conducted the underlying tests.  In Williams, however, the testifying expert had no personal experience in the private lab that produced the critical DNA profile.

The dissent also took issue with the “not for the truth” rationale of the plurality opinion.  The government’s testifying expert, Justice Kagan argued, did more than just assume the sample tested by the private lab came from the vaginal swab of the rape victim, he affirmed it without reservation or qualification.  Had he qualified his testimony and made clear that if the report relied upon by the government’s testifying expert was a scientifically valid and reliable test from the vaginal swab of the victim, then it would link the defendant to the rape by its consistency with the DNA profile of Williams developed by the testifying expert.  Had the testimony been presented in that fashion, Justice Kagan believed the case would have been different and the “not for the truth” theory may have more traction.  Justice Kagan’s commentary on how the prosecutor might avoid the confrontation issue by framing the critical foundation questions as hypotheticals was seized upon by the our Supreme Court in resolving the confrontation issue for North Carolina.

Justice Thomas concurred in the result but rejected the pluralities’ theory that the DNA profile was not admitted for its truth value.  He adhered to his unique theory that a testimonial statement must possess some “formality and solemnity” to be the sort of statement the Confrontation Clause contemplated.  The DNA profile prepared by the private lab had no indicia of formality or solemnity while the statement in Melendez-Diaz was sworn to before a notary and the Bullcoming report included a “Certificate of Analysis” executed by the lab technician who performed the tests.  Justice Thomas’ “formality and solemnity” requirement is unique to him and has not been adopted by any other member of the Court.

Does simply asking the in-court expert to assume the scientific reliability and validity of the underlying lab report avoid the Confrontation Clause?

So where does all this leave us?  If we count noses we find that five justices believe that the Confrontation Clause applies when a testifying expert seeks to put before the jury the uncross-examined opinion of the non-testifying expert who conducted the analysis in issue.  The five-justice majorities in Melendez-Diaz and Bullcoming , Scalia, Kagan, Sotomayor, and Ginsburg, are pretty clear on this point and are joined by Thomas when the underlying lab report meets his unique “formality and solemnity” requirement.

Four justices, Kennedy, Breyer, Alito, and Roberts are equally clear that testifying experts can rely upon the results of non-testifying experts in forming their own expert opinions as to the nature of the substance in question.

Federal Rule of Evidence 703 and similar state rules specifically permit an opinion based on otherwise inadmissible evidence if it is the sort reasonably relied upon by other experts in the field.  In this context, the underlying lab report is inadmissible because it fails to meet an exception to the hearsay rule, or if it does satisfy a hearsay exception, it violates the Confrontation Clause because the analyst who conducted the tests and prepared the report was not subject to cross-examination.

But what about Justice Kagan’s qualifying language in Williams that “There [is] . . . nothing wrong with [the expert] . . . testifying that two DNA profiles—the one in the [private lab] . . . report and the one derived from Williams’s blood—matched each other. . . .   Similarly, [the expert] . . . could have added that if the [private lab] . . . report resulted from scientifically sound testing of [the victim’s] . . . vaginal swab, then it would link Williams to the assault”?  Does simply asking the in-court expert to assume the scientific reliability and validity of the underlying lab report avoid the Confrontation Clause?

It does in North Carolina.  Of the seven cases decided on June 27, 2013, 1 the decision in Ortiz-Zape sets out in the greatest detail the view of the Confrontation Clause embraced by a majority of the Court.

The Sixth Amendment, the defense argued, guaranteed the defense the right to cross-examine the analyst who actually did the work.

Mario Ortiz-Zape was arrested after a Charlotte Mecklenburg Police officer observed a suspicious package believed to be cocaine during routine questioning about the temporary thirty-day tag on Ortiz-Zape’s car.  When asked about the plastic bag, Ortiz-Zape told the officer it was cocaine for his personal use.  A subsequent search of the car revealed more suspicious plastic bags containing what appeared to be cocaine.  The seized material was sent to the police crime lab where chemical analysis by forensic chemist Jennifer Mills determined it was 4.5 grams of cocaine.  Ortiz-Zape was indicted, tried, and convicted of possession with intent to sell or deliver cocaine.

At trial, the state called Tracey Ray of the Charlotte Mecklenburg Police Department (CMPD) crime lab as an expert in forensic chemistry to prove the substance seized from Ortiz-Zape was cocaine.  Mills, the analyst who actually tested the substance and prepared the lab report memorializing the results of her tests was no longer working for the CMPD crime lab at the time of trial.  Because Ray did not perform the chemical analysis of the suspicious substance, the defense moved to exclude her testimony as well as the lab report prepared by Mills.  The Sixth Amendment, the defense argued, guaranteed the defense the right to cross-examine the analyst who actually did the work.

While the trial court excluded the lab report itself, Ray was permitted to testify as to the general procedures followed by the CMPD lab, the various tests used to determine the chemical composition of an unknown substance, and the standard procedures for insuring the various lab machines and instruments are working properly.

Ray also testified that she performed a “peer review” of the results of the chemical analysis performed by Mills.  In conducting this review, she examined all of the lab notes made by Mills and the data and output from the testing instruments used by Mills.  She testified that the tests performed by Mills are tests that “experts in the field of forensic chemistry would rely upon . . . in performing [sic] the opinion as to the identity of a chemical substance.”  The prosecutor then asked her whether, based on her training, experience, and review of the case file prepared by Mills she had come to an “independent expert opinion” as to the chemical composition of the substance.  The trial judge overruled a defense objection and Ray told the jury that in her opinion the substance was cocaine.

The jury convicted Ortiz-Zape, but the Court of Appeals reversed, finding that Ray did not perform any tests herself, did not personally observe any of the testing done by Mills and could not provide an opinion as to the chemical composition of the unknown substance.  In essence, the Court of Appeals viewed Ray as merely telling the jury what Mills had concluded.  Thus, it was Mills’ uncross-examined opinion that established the substance was cocaine. In an unpublished opinion, the Court of Appeals held the admission of Ray’s testimony in violation of the Confrontation Clause was reversible error.  The Supreme Court granted the state’s petition for discretionary review and reversed.

The Supreme Court held that Ray’s opinion, not the underlying lab data produced by Mills, was the substantive evidence in the case.

The Supreme Court traced the evolution of the Supreme Court of the United States’ Confrontation Clause jurisprudence from Crawford through Williams and noted the uncertainty left by Williams.  Seizing upon Justice Kagan’s suggestion in her dissent in Williams that an expert not involved in the actual testing could give an independent opinion based upon an assumption that the underlying test was properly conducted, coupled with North Carolina Rule of Evidence 703, which permits experts to base opinions on otherwise inadmissible evidence if “of a type reasonably relied upon by experts in the particular field,” the Court held that Ray’s opinion, not the underlying lab data produced by Mills, was the substantive evidence in the case.  The Confrontation Clause was not violated because Ray was available for and was thoroughly cross-examined by the defense at trial.

The Court’s decision in Ortiz-Zape focused upon the intersection of the Confrontation Clause and the North Carolina Rules of Evidence that govern expert testimony.  First, the Court held that if the testifying expert gives an independent opinion without parroting the out of court statements of the analyst who did the actual testing, the substantive evidence in the case is the testifying expert’s opinion and that witness is who must be available for cross-examination.  Second, the Court applied the well-known principle that an expert can rely upon otherwise inadmissible evidence if it is the type reasonably relied upon by other experts in the field.  Each of these points warrants further scrutiny.

“When an expert states her own opinion, without merely repeating out-of-court statements, the expert is the person whom the defendant has the right to cross-examine”

First, the Court clearly drew the distinction between the “surrogate expert” who is merely a conduit for the work of the non-testifying analyst and the “independent opinion” of a qualified expert who comes to her own conclusion based upon a review of the tests conducted by the non-testifying analyst and the data generated by the machines and equipment used by the non-testifying expert.  This distinction permits the Court to avoid the “surrogate expert” scenario rejected by the Supreme Court of the United States in Bullcoming.  In fact, it creates a testing analyst and a testifying analyst scenario that, essentially, shields the work of the testing analyst from scrutiny.

Citing the new version of North Carolina Rule of Evidence 702, which did not apply to the trial of this case but will apply in trials commenced after October 1, 2011, the Court noted expert opinion testimony is admissible when, 1) the expert is qualified by knowledge, experience, training, or education; 2) the opinion based upon the expert’s scientific, technical, or other specialized knowledge will assist the trier to fact to understand the evidence or to determine a fact in issue; 3) the opinion is based upon sufficient facts or data; 4) the opinion is the product of reliable principles and methods; and 5) the expert reliably applied those reliable principles and methods to the facts of the case.

Assuming the testifying expert is a qualified forensic chemist and we are dealing with the chemical nature of an unknown substance that can be determined through chemical analysis, it seems the first two factors are easily met.  The third factor is met only if one assumes the testing analyst handled the sample correctly, followed lab testing protocol properly, correctly operated the various machines and equipment used in testing, and reliably recorded the results.  Of course, experts can testify based on facts known to them or presented to them before or during trial.  Asking an expert to assume the existence of certain underlying facts and basing an opinion on those assumed facts is a time-honored way of introducing expert opinion testimony.

In our testing analyst and testifying analyst scenario, the fourth factor required by Rule 702 is, however, problematic.  What principles and methods does the testifying expert apply, other than assuming the underlying truth, correctness, and reliability of the testing analyst’s work?  The testifying analyst performs no independent analysis or test.  The testifying analyst might not have even visually examined the substance in question.  The testifying analyst did not calibrate or test the lab equipment before the tests are run, did not observe any chemical reaction, did not measure any chemical compound, and did not verify that the correct reagent was used to do the preliminary analysis of the unknown substance.  The testifying analyst merely reviewed the data and reports prepared by the testing analyst and reports that she would have determined the substance was cocaine if she had conducted the same tests in the same manner and obtained the same results as those reported by the testing analyst.

The sort of “peer review” of Agent Mills’ work performed by Agent Ray, a review of the lab file and checking the read out of the gas chromatograph mass spectrometer (GCMS) machine, could not determine whether the substance was cocaine.  It could only identify departures from standard lab protocol if such departures were duly noted in the lab files.  In other words, the principles and methods applied may have been reliable in determining whether Agent Mills missed a step in the testing process or otherwise departed from established testing procedures, but the principles applied by Agent Ray were not reliable to support the use to which they were put, identifying the chemical nature of the substance seized from Ortiz-Zape.

There is a huge difference between conducting quality assurance or “peer review” evaluations to see if the data recorded by the testing analyst and the reports reflecting the testing analyst’s conclusions are consistent and, at least on their face reflect compliance with lab standards and protocols, and reaching an “independent opinion” as to the chemical nature of an unknown substance.  The two analysts are applying different principles and methods to determine the answers to different questions.  The testing analyst is asking, “What is the substance before me?”  To answer that question she applies scientific tests and principles that are appropriate to the question.

The testifying analyst, on the other hand, is asking, “Does the data recorded by the testing analyst appear consistent with the conclusion the testing analyst reached and is there any evidence on the face of the documents or in the file that the testing analyst departed from standard procedure or protocol?”   While an appropriately qualified testifying analyst applying her specialized knowledge of lab tests and procedures can reach an answer to that question, it does not rise to the level of an “independent opinion” as to the nature of the substance involved.   By failing to appreciate the different questions the two analysts are asking and by conflating the principles and methods applied by the testing analyst and the principles and methods applied by the testifying analyst conducting a “peer review,” the Court has failed to apply a critical reliability factor required by Rule 702.

“Admission of an expert’s independent opinion based on otherwise inadmissible facts or data ‘of a type reasonably relied upon by experts in the particular field’ does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert”

Second, North Carolina Rule of Evidence 703, which permits an expert to base an opinion on otherwise inadmissible evidence if that otherwise inadmissible evidence is a type reasonably relied on by other experts in the field, allows the State to introduce the testifying expert’s opinion as to the nature of the substance in question without having to either produce the analyst who did the work or introduce the lab reports themselves.  The key question and one not developed very well by the Court, is just what sort of evidence does a forensic scientist reasonably rely upon in reaching a conclusion about the chemical structure of an unknown substance?  The Court assumes without much discussion that forensic scientists routinely rely upon the work of other forensic scientists to determine the chemical composition of unknown substances.  That is, after all, what Agent Ray did in reaching her opinion that the substance Ortiz-Zape possessed was cocaine.

Of course, forensic scientists rely upon various scientific tests and chemical reactions to reach a conclusion as to the nature of the unknown substance being tested.  But do they rely upon the results of those tests performed by others in their day to day business of forensic chemistry?  That is what Agent Ray did.

Consider, for example, the expert testimony of a physician who relies upon lab reports and recorded notations in the medical records by other health care providers in order to reach a diagnosis of the patient’s condition.  This is normal, routine, and a daily occurrence in medical offices and hospitals around the nation.  It is part and parcel of the everyday practice of medicine aimed at diagnosing and treating patients seeking help.  It is done in the context of the expert’s professional work in the practice of medicine.  Rule 703 merely recognizes the reality of what those experts do in their daily practice and declares that reliance upon the work, observations, and notes of others to be good enough for the courtroom opinion if it is good enough for the operating room or the medical examination room opinion.  It seeks to align professional expert opinion delivered from the witness stand with professional expert opinion formed in the normal setting of the profession.  Doctors do not worry about whether a lab report satisfies the hearsay rule or other limitations on the admissibility of evidence before relying upon it to diagnose the patient’s condition or to determine a course of treatment, and Rule 703 makes clear that the jury can hear that same opinion based upon that same sort of information.

Can the same be said for the daily “practice” of forensic science?  By definition, forensic science is all about developing evidence to be used in some sort of legal context.  Unlike the physician who is seeking information, answers, and lab data to make a medical diagnosis and prescribe treatment, the forensic scientist doing her work for the State crime lab is attempting to answer a question to aid in the prosecution of one suspected of a crime.  Do forensic scientists rely upon the reported results of other forensic scientists to determine whether the white powdery substance in the plastic baggie is cocaine?  Or, do they conduct well established and reliable scientific tests in order to determine the composition of the unknown substance?

The testifying expert in Ortiz-Zape did not rely upon the actual test results to reach an “independent” opinion that the substance was cocaine.  Rather, she depended upon what Agent Mills said those tests produced.  According to the Court, “She stated that the color test and the GCMS test performed on the substance are tests that ‘experts in the field of forensic chemistry would rely upon . . . in performing [sic] the identity of a chemical substance.”  Her testimony was that forensic scientists rely upon forensic tests, not upon tests, reports, and observations generated by other forensic scientists.  But her opinion in the case was based not on the results of the color test and the GCMS test, but upon what Agent Mills reported were the results of those tests.  To be fair, Agent Ray did testify that she checked the GCMS machine readout itself and compared that machine-generated graph with the lab standard for cocaine. But the only way she knew that readout was referring to the substance seized from Ortiz-Zape was because Agent Mills said so.

One might argue that the doctor who refers his patient to a radiologist for x-rays implicitly assumes the radiologist x-rayed the correct limb and the report accurately describes the resulting radiographic study of the referred patient.  Courts would routinely permit the doctor to testify as to his diagnosis based upon the out of court report of the radiologist.  But, unlike the forensic chemist report, the radiographic report was not generated to prove an essential element of the prosecutor’s case.  It was generated to treat an injured patient and the medical profession has developed sufficient trust and reliance upon that system of reports and sharing information that they routinely rely upon them to diagnose and treat patients.  The forensic chemist report, on the other hand, is not generated to answer a question unrelated to a legal proceeding.  The reason behind generating the forensic report in the first place is to further the legal proceeding in which the unknown substance has some significance.

To follow the Ortiz-Zape paradigm to its logical conclusion, the State will never have to produce the forensic chemist who did the actual analysis of the questioned substance.  Our crime lab can be organized around scientists who do the actual testing and those who do the testifying.  The lab analysts can spend their time analyzing unknown substances and the testifying analysts can spend their time reading reports, preparing for trial, and rehearsing their testimony with the District Attorney.

 The jury gets to hear an expert opine that the substance is cocaine, but the defendant never gets to confront the expert who actually conducted the tests that produced that opinion.

While this arrangement may be more efficient for the State and reduce the turmoil in having lab analysts away from their labs to substantiate their work in court, it means the defendant can never cross-examine the scientist who actually handled the substance in question.  He can never question the scientist about his or her training or expertise.  He can never confront the scientist about the extent of the workload and the similarity of other unknown substances tested by that scientist around the time the unknown substance in the instant case was tested.  He can never explore with the scientist the degree to which the scientist followed standard lab protocols and quality assurance measures.  He can never ask the scientist who determined the chemical structure of the unknown substance the sort of questions that may raise doubts about the scientist’s character for truthfulness and professional and personal reliability.  In short, under the testing analyst and testifying analyst paradigm that is now the law in North Carolina, the jury gets to hear an expert opine that the substance is cocaine, but the defendant never gets to confront the expert who actually conducted the tests that produced that opinion.  What is wrong with this picture?

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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