Sunday, April 18, 2010
In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant's trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).
In Winston, Robert Earl Winston was convicted of aiding and abetting another who murdered Haines City Police Officer Christopher Todd Horner with the intent to prevent Officer Horner from communicating to law enforcement or a judge information related to the commission of a federal offense, and aiding and abetting another who knowingly used and carried a firearm during and in relation to a crime of violence, and, in the course thereof, murdered Officer Horner.
The opinion in Winston doesn't give us many details, but it does tell us that a medical examiner prepared a forensic report and did not testify at Winston's trial. Another medical examiner, however, reviewed the report and offered his "own" conclusions based upon this report, with the report not being admitted into evidence.
After he was convicted, Winston appealed, claiming that the admission of the medical examiner's testimony violated his rights under the Confrontation Clause based upon the Supreme Court's opinion in Melendez-Diaz v. Massachusetts. The Eleventh Circuit disagreed, finding that the testimony was admissible under Federal Rule of Evidence 703, which provides in relevant part that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.
In my earlier post on this subject, I stated some of my reasons for disagreeing with this general proposition. There is one sentence in Winston, however, that I find particularly problematic. The Eleventh Circuit found no problem with the medical examiner's testimony because "As the Seventh Circuit stated in United States v. Turner, 591 F.3d 928, 934 (7th Cir.2010), “Melendez-Diaz did not do away with Federal Rule of Evidence 703."
Huh? That would be like an appellate court saying that a nontestifying declarant's excited utterance was admissible without regard to the Confrontation Clause because Crawford v. Washington did not do away with Federal Rule of Evidence 803(2). Such a statement would make no sense because Rule 803(2) only deals with the issue of whether a statement is admissible notwithstanding the rule against hearsay, not the issue of whether it is admissible notwithstanding the Confrontation Clause.
The same should be true with Rule 703. Rule 703 only deals with the issue of whether expert testimony is based upon a proper factual predicate; it does not deal with the issue of whether it is admissible notwithstanding the Confrontation Clause.