Thursday, August 4, 2011
Independence Day, Take 4: NJ Court Upholds Admission Of Expert Testimony Based on Report By Non-Testifying Analyst
Back in June, the Supreme Court decided Bullcoming v. New Mexico, holding in a 5-4 opinion 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 forecasted. As I noted in a previous post,
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 turned out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provided a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman. At the end of my post, I concluded that lower courts would use Justice Sotomayor's concurrence to allow expert testimony in the tougher case. The first court (I believe) to deal with the tougher case in the wake of Bullcoming was the Superior Court of New Jersey, Appellate Division in its recent opinion in State v. Roach, 2011 WL 3241467 (N.J.Super.A.D. 2011). And, unsurprisingly, the court used Justice Sotomayor's concurrence to uphold the admission of expert testimony in the tougher case.
In Roach, Reginald Roach, an African-American man, was convicted of two counts of first-degree aggravated sexual assault, second-degree sexual assault, second-degree burglary, and third-degree possession of a weapon for an unlawful purpose.
DNA collected from the victim was initially analyzed by Lydia Schiffner, a forensic scientist in the State Police laboratory. Schiffner was able to create a full DNA profile of the person who had left his sperm on the victim. She wrote a report detailing her findings and the DNA profile. Thereafter, Schiffner relocated to Wisconsin. Another State Police analyst, Jennifer Banaag, took over responsibility for the case.
Banaag analyzed the DNA specimen taken from defendant and compared it with the DNA profile previously generated from the victim. Based on her expert analysis, Banaag concluded that the defendant's DNA matched the DNA taken from the victim. In particular, she found that the probabilities of such a "sperm-cell fraction" match were one in 1.3 quintillion African–Americans, and the probabilities for a "non-sperm cell fraction" match were one in 15.7 billion African–Americans. Banaag later acknowledged at trial that one of the sperm-cell fraction tests..., excluded defendant as the DNA contributor, because it was the victim who had contributed the DNA on that particular sample.
At trial, defense counsel objected
to Banaag's testimony insofar as it referred to the analytic work performed earlier by Schiffner, who did not testify. Defense counsel argued that allowing Banaag to refer to Schiffner's work without having an opportunity to cross-examine Schiffner violated defendant's rights under the Confrontation Clause. The trial judge overruled the objection, discerning no constitutional deprivation.
After he was convicted, Roach appealed, claiming, inter alia, that the trial court erred by permitting the prosecution to allow Banaag to offer opinion testimony based upon results obtained by Schiffner. The Superior Court of New Jersey, Appellate Divsion, noted the holding in Bullcoming, but it also referenced, inter alia, an important qualification contained in Justice Sotomayor's concurrence:
[M]ost importantly for the present case, Justice Sotomayor made clear that the Court's holding in Bullcoming did not necessarily extend to a situation "in which an expert witness was asked for his [or her] independent opinion about underlying testimonial reports that were not themselves admitted into evidence."...In this regard, Justice Sotomayor's concurrence alluded to Federal Rule of Evidence 703, which permits the discussion of "facts or data" that are not admitted into evidence, on certain conditions, by a testifying expert witness.
The court then took the ball from Justice Sotomayor's concurrence and ran with it, concluding that there was no Confrontation Clause conundrum becuase
Several things [we]re apparent from Banaag's testimony. First, she was qualified to offer opinions as an expert witness pursuant to N.J.R.E. 702. Under a companion provision, N.J.R.E. 703, “[t]he 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.” (Emphasis added). Rule 703 adds that if the facts or data are "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."...Banaag established this requirement of reasonable reliance upon Schiffner's work, as a matter of customary practice.
It is also clear that although Banaag did not "rerun" the tests conducted by Schiffner, she carefully reviewed them and found no basis to question their reliability.
Banaag was not a mere "conduit" of Schiffner's analysis. Rather, as a qualified DNA expert, she reviewed that analysis and determined that it was appropriate to use the DNA profile created by Schiffner and compare it to the profile generated by defendant's buccal swab. Banaag was subjected to vigorous cross examination on these points, including her use of the prior analyst's DNA profile.
The court did acknowledge that the United States Supreme Court recently granted cert in Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), a case with facts very similar to the facts in Roach (you can read my analysis of Williams by clicking here). But the court then stated that it had no problem affirming because "[u]nless the Court's forthcoming opinion in Williams v. Illinois during the coming term dramatically expands the Crawford doctrine, there is nothing in the Court's present jurisprudence that compels a reversal in this case." And I agree. As I noted in a previous post, based upon her Bullcoming concurrence, I fully expect Justice Sotomayor to side with the four dissenters from Bullcoming and uphold the admission of expert testimony in the "tougher case." But with the Confrontation Clause, you just never know.