Melendez-Diaz And Supervisor/Peer Review Forensic Expert Testimony

In recent Eighth Circuit case, peer review DNA expert's testimony did not violate the Confrontation Clause since the expert testified and was cross-examined about her own review and conclusions even though she did not conduct the testing, in United States v. Richardson, 537 F.3d 951 (8th Cir. Aug. 12, 2008) (No. 07-2162)

The case of Luis E. Melendez-Diaz v. Massachusetts (No. 07–591), which the Supreme Court heard oral argument on November 10, 2008, will impact the manner in which the forensic expert testimony is presented and is expected to further clarify the meaning of testimonial statements under the Confrontation Clause, as previously reported (before argument, after argument). A key question is whether a supervisor or peer forensic expert, who did not actually conduct the forensic test or examination, will be able to testify in lieu of the examiner who conducted the analysis. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing. This issue came up during oral argument in the Supreme Court, as noted below.

The facts from a recent Eighth Circuit case, United States v. Richardson, 537 F.3d 951 (8th Cir. Aug. 12, 2008) (No. 07-2162), highlight some of the potential issues. Defendant Richardson was prosecuted for being a felon in possession of a firearm. A traffic stop was made of a car driven by the defendant. When the officer went to the location where he first saw the defendant, he discovered a dry and warm handgun. The defendant had at least three prior felonies involving violent or drug offenses. The question was whether the defendant was connected to the firearm. In addition to other evidence, a DNA test confirmed a match in the defendant’s DNA and the DNA located on the firearm.

During the trial, the government called a peer review forensic scientist who testified about the DNA tests that were conducted by others. The peer review expert “didn’t actually receive the evidence in this case,” but “received the case file with [the other scientist’s] notes and results.” Richardson, 537 F.3d at 955. She did not perform or observe any DNA testing in the case. Her role was to conduct a peer review to ensure the initial tests were complete and documented. Additionally, as the “peer reviewer” she completed “a second independent analysis of the DNA data and compare[d]” it to the first scientist’s review “to be sure that the two scientists agree in all aspects of the DNA testing.” At trial, the defense raised hearsay and foundation objections when the expert testified about the tests and analyses conducted by others. After the defendant was convicted, on appeal, for the first time the defendant claimed his Confrontation Clause rights were violated since the forensic scientist testimony testified about results obtained by another scientist.

The Eighth Circuit reviewed the Confrontation Clause issue for plain error and none was found. The defendant failed to show the error was a clear violation of law, as required under the plain error review standard. See United States v. Olano, 507 U.S. 725, 732–36 (1993) (plain error standard). The circuit also questioned whether DNA samples were testimonial. The circuit noted that the Supreme Court had decided to hear “the question of whether a forensic analyst’s laboratory report prepared for use in prosecution is testimonial” in Commonwealth v. Melendez-Diaz, 870 N.E.2d 676 (Mass. App. Ct. 2007), cert. granted, 128 S. Ct. 1647 (2008). Richardson, 537 F.3d at 960 n.3.

The circuit concluded that 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 the expert testified and was cross-examined about her conclusions. As the circuit explained:

“Although she did not actually perform the tests, she had an independent responsibility to do the peer review. Her testimony concerned her independent conclusions derived from another scientist’s tests results and did not violate the Confrontation Clause.”
Richardson 537 F.3d at 960 (citing United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (holding the reviewing scientist “was entitled to analyze the data that [the first scientist] had obtained”; noting “the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself”)). Although the peer review expert used the initial testing scientist’s reports, the expert testified about her own conclusions and was cross-examined on her opinions. Richardson, 537 F.3d at 961 (citing United States v. Davis, 40 F.3d 1069, 1073, 1075 (10th Cir. 1994) (expert, who did not perform all the DNA tests, could testify concerning DNA procedures and matches since “it was accepted in her field to rely upon the notes of lab technicians [and] . . . [i]t is also firmly established that an expert may testify from another person’s notes”)).

A key problem for the defense in Richardson was the failure of the defendant to lodge a contemporaneous Confrontation Clause objection at trial. Consequently, the issue was reviewed under the more stringent plain error review standard on appeal. Nonetheless, the facts of Richardson are relatively common, at least before the pending ruling in Melendez-Diaz. The analyst performing the actual testing may not be called to testify at trial but a peer or supervisor reviewing the work may.

It is therefore interesting to juxtapose the fact of the Richardson case with questions about forensic expert testimony during the oral argument in Melendez-Diaz with the petitioner’s counsel:

CHIEF JUSTICE ROBERTS: You say -- you say "the analyst." I suppose it doesn't have to be the analyst but whoever they decide to call. So if you had a supervisor who runs the cocaine testing lab and he is the one whose report is submitted, I take it he is the one who would have to show up.
MR. FISHER: That's right. Our position -- our position is that whoever the Commonwealth wants to use to prove the fact that they are trying to prove is the person that needs to take the stand. In this case, it would be the analyst.
JUSTICE SCALIA: But -- but you would ask -- if a supervisor did it, what would you ask the supervisor? You'd say, you know, did you -- did you do this? Can you testify to your own knowledge that this is what the analysis showed? And he would have to say, no, it was one of my subordinates who did it, but I can tell you he was a very reliable person. How would that -- I don't understand how that would work.
MR. FISHER: I took the Chief Justice's hypothetical to be that the supervisor had actually done the testing, but if the supervisor had not –
I'm saying that he would testify, I guess: I run the lab, these are the people I hire, they know you how to do these tests, and this guy did the test. And since he was the one that the Government decided to -- on whose affidavit they decided to rely, that's the only person you could get.
Now, you could -- to impeach him, you say, well, did you do the test? No. But you say, well -- but I mean you don't have a right to an analyst at a particular level.
MR. FISHER: That's right. There is no substantive right. I think everything you've said is right as far as it goes. It just depends what the Commonwealth wants to put in in terms of evidence.

Transcript, at 4-5.
Later in the argument, petitioner’s counsel noted:
MR. FISHER: …But let me say one other way that this problem can be addressed by States is that they could have a supervisor take the stand and rely on raw data -- on raw data and give his or her explanation of raw data. It's just that the person cannot take the stand and relay somebody else's conclusion to the jury.
Transcript, at 28.

The questions during the recent oral argument highlight some of the parameters of using supervisor or peer review expert testimony consistent with the Confrontation Clause. Whether and to what extent a supervisor or peer review expert may be able to testify may be answered by the Court’s opinion when it is issued later in the year.

Federal Rules of Evidence