Peer Review Experts, Hearsay, And The Confrontation Clause (Part I)

In United States v. Richardson, 537 F.3d 951 (8th Cir. Aug. 12, 2008) (No. 07-2162) there was no plain error under the Confrontation Clause in admitting testimony of a DNA expert who conducted a peer review of the DNA tests connecting the defendant to the charged weapon, but did not perform or observe any of the tests. Part II of this discussion will appear on September 5, 2008.

As noted in a recent blog post on United States v. Law ("Expert Testimony Based On Hearsay Did Not Violate The Confrontation Clause"), the D.C. Circuit addressed the question whether an expert, who relies on hearsay testimony to form an opinion, but does not relate the hearsay testimony, violates the Confrontation Clause. The D.C. Circuit concluded an expert was allowed to rely on hearsay statements and the defendant was not denied an opportunity to cross-examine the non-testifying witnesses.

The Eighth Circuit considered a slightly different version of the ability of expert witnesses to rely on the statements of others in United States v. Richardson. An officer, who became suspicious of defendant Richardson’s reaction to the officer’s marked car, detained the defendant and ultimately found a warm pistol near the area the defendant had been standing. Later, a DNA test further confirmed a match of the defendant’s DNA and DNA found on the firearm. The peer review expert testified about the tests, analyses and results of the original examining scientist. The defense did not object on constitutional grounds. On appeal, for the first time the defendant claimed his Confrontation Clause rights were violated by the forensic scientist testimony about results obtained by another scientist.

Since no objection had been made at trial, the Confrontation Clause issue was reviewed for plain error. The circuit found no plain error since the defendant failed to show the error was plain, clear or obvious error. The peer review expert’s testimony confirming a match of the defendant’s DNA and the DNA found on the firearm did not violate the Confrontation Clause since “she had an independent responsibility to do the peer review” and her testimony was based on “her independent conclusions derived from another scientist’s tests results.” Richardson, 537 F.3d at 960.

The Richardson cases presents a separate issue than the D.C. Circuit case since the peer review DNA expert related the conclusions of the scientist who conducted the original DNA testing. If an objection had been made on constitutional grounds, the circuit would have been required to address the issue. It is not uncommon for lab results to include a peer or supervisor review to verify the results. Under the Confrontation Clause, can a peer review expert relate the conclusions of the initial examiner? This issue will likely be considered in a future case.

Federal Rules of Evidence