June 28, 2011
Independence Day?: What Does Justice Sotomayor's Bullcoming Concurrence Tell Us About Expert Opinions Based Upon Non-Admitted Testimonial Reports?
While I was away, guest blogger Ann Murphy wrote an excellent post about the Supreme Court's recent opinion in Bullcoming v. New Mexico. As she noted, in Bullcoming, the Court, in a 5-4 opinion, held that the Confrontation Clause was violated through the admission of a report concerning Bullcoming's blood alcohol content with the accompanying testimony of an analyst but without the accompanying testimony of the analyst who prepared the report. This was the result I previously predicted because Bullcoming was the easy case. As I noted in a previous post about Bullcoming:
I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diaz, and the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions....? On that question, we will just have to wait and see.
Well, it turns out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provides a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman.
The Tougher Case
I have written a couple of posts about the tougher case flagged by Professor Friedman. One of those posts was about the opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010). As I noted in that post,
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 another entry, I noted that the Court of Appeals of North Carolina reached the same conclusion in State v. Hough, 2010 WL 702458 (N.C.App. 2010), pointing out in the process that "[o]ther federal courts have reached this same conclusion under similar facts."
As noted, Bullcoming was a 5-4 opinion. 4 Justices found that the admission of the report did not violate the Confrontation Clause. 5 Justices found that it did. But what if the report were not technically admitted, with the prosecution claiming that the testifying analyst merely used the report as the basis for opinion testimony under Federal Rule of Evidence 703? Would the Eleventh Circuit, the Court of Appeals of North Carolina, and the other courts referenced in Hough be correct? Would this tougher case swing at least one of the Justices from the Bullcoming majority?
I'm not sure, but if I am reading Justice Sotomayor's concurrence correctly, I think that the answer is "yes." In Bullcoming, Justice Sotomayor concurred in part, with one of her stated goals being "to emphasize the limited reach of the Court's opinion." She then stated four factual circumstances that were not present in Bullcoming.
One of these was that
this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert's opinion based on the facts and data to be admitted). As the Court notes,...the State does not assert that Razatos offered an independent, expert opinion about Bullcoming's blood alcohol concentration. Rather, the State explains, "[a]side from reading a report that was introduced as an exhibit, Mr. Razatos offered no opinion about Petitioner's blood alcohol content...."...Here the State offered the BAC report, including Caylor's testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence.
Based upon this statement, it seems pretty clear to me that Justice Sotomayor would have agreed with the opinions in Winston and Hough. Sure, she doesn't come out and say that she would have allowed opinion testimony about a testimonial report that was not itself admitted, but her acknowledgment that those facts would have presented a "different question" seems to imply such a result. Or does it?
Upon a second reading, I noticed that Justice Sotomayor said that Bullcoming was "not a case in which an expert witness was asked for his independent opinion...." (emphasis added). This led me to wonder what she meant by the word "independent." In the previously mentioned Hough case, Aldridge was the analyst who prepared a forensic report but did not testify, and Alloway was the testifying analyst. In Hough,
[a]t trial, Kamika Daniels Alloway..., a forensic chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that she reviewed the lab reports of...Aldridge...and believed his analysis to be accurate. Alloway testified that the substance found [a] the trash can that [Hough] was rolling constituted 17.05 pounds of marijuana. The three bags recovered from [Hough's] garage contained cocaine and weighed 7.93 grams, 7.72 grams, and 7.87 grams respectively. The weight of the cocaine and the marijuana varied from the weights recorded at the scene by [a detective]; however, Alloway testified that the weights in the lab report did not include the packaging. Alloway admitted on cross examination that she did not test any of the substances herself and was not present when Aldridge conducted the tests.
Looking at these facts, was there anything independent about Alloway's opinion? I would argue that the answer is "no." How could there be? Alloway had no personal knowledge of the substances. His testimony was entirely dependent on Aldridge's report. Is this what was meant by Justice Sotyomayor?
If it is what was meant by Justice Sotomayor, then she is in good company. In my preview of Bullcoming, I cited to Julie Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008). In the article, Professor Seaman noted that
The most common basis for court holdings rejecting a Confrontation Clause challenge to the introduction of expert opinion is that the statements relied on by the experts in forming their opinions were not offered for their truth, but only as a basis for the expert's opinion. Because the Supreme Court in Crawford clearly stated that the decision applied only to testimonial statements offered for their truth, a finding of a non-hearsay purpose allows these courts to hold that their admission does not amount to a constitutional violation.
A representative example of such non-hearsay reasoning is this statement from a case involving a California gang prosecution:
Crawford limits the introduction of hearsay directly against a defendant but does not affect the type of evidence relied upon by an expert in forming his opinion. In our case, the prosecution did not offer the contents of the police reports as hearsay evidence of the truth of the matters asserted in the reports. The reports were mentioned only as a basis for [the expert's] opinion that [the defendant] was a Sureno gang member. [The defendant] had the opportunity to challenge the testimony by demonstrating the underlying information was incorrect or unreliable. He did not. There was no denial of his confrontation rights.
If, as the court says, the appropriate manner for the defendant to challenge the expert's opinion would be to demonstrate that the underlying information is "incorrect or unreliable," then it is plain that it is in fact being offered for its truth. If it were not offered for its truth, its reliability would be irrelevant. The court's own description of the jury instruction given in the case supports the conclusion that the testimonial statements were indeed offered for their truth. The jury in Valerio “was advised that the expert's opinion was only as good as the facts and reasons on which it was based, and that the jury should consider the proof of such facts in determining the value of the expert's opinion.”
Furthermore, if the opinion is only as good as the facts on which it is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination, then it is difficult to imagine how the defendant is expected to "demonstrate the underlying information was incorrect or unreliable." According to Crawford, the only constitutionally sanctioned manner in which the reliability of testimonial hearsay may be tested is by cross-examination.
I wholeheartedly agree with Professor Seaman's analysis and hope that Justice Sotomayor's use of the phrase "independent opinion" means that she would not permit the type of testimony admitted in Hough.
So, if this reading is correct, when would an analyst besides the one who prepared the report be able to rely upon the report while still delivering an independent opinion? Well, assume that in Hough, Alloway did himself test the drugs and merely used Aldridge's report to corroborate his conclusions. In this case, Alloway seemingly would be allowed to rely upon the testimonial report while still delivering an independent opinion.
Or, look at one of the other factual circumstances Justice Sotomayor stated was not present in Bullcoming:
Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor's conduct of the testing....The court below also recognized Razatos' total lack of connection to the test at issue....It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.
In this case, it would be at least arguable that the testifying analyst could rely upon the report while still offering an independent opinion based upon his personal knowledge.
So, will lower courts take Justice Sotomayor's concurrence as evidence that cases like Winston and Hough were correctly decided? Or will they use the "independent opinion" language to find that the tougher cases violate the Confrontation Clause? And what will the Supreme Court ultimately decide if it grants cert in such a case? I would like to think that courts will follow the logic of Professor Seaman, but I think that they will conclude that "Melendez-Diaz did not do away with Federal Rule of Evidence 703."
June 28, 2011 | Permalink
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