Peer Review Expert Testimony And The Confrontation Clause (Part II)

Eighth Circuit finds no plain error under the Confrontation Clause in admitting testimony of DNA expert, who conducted a peer review of the case but did not perform or observe any tests, in United States v. Richardson, 537 F.3d 951 (8th Cir. Aug. 12, 2008) (No. 07-2162). Part One of this blog appeared August 19.

Are Confrontation Clause issues raised by peer review expert testimony which relies on testing conducted by another expert?

In a recent felon in possession of a firearm case, DNA testing was conducted as evidence that the defendant possessed the firearm. The government called a forensic scientist to testify concerning the DNA results. The expert witness provided peer review of the results but did not conduct or observe any DNA tests. It is common in examination testing for a peer or supervisor review as part of the quality control process. The purpose of the peer review was to provide “a second independent analysis of the DNA data” and comparison “to be sure that the two scientists agree in all aspects of the DNA testing.” Richardson, 537 F.3d at 956. The peer review expert testified about the tests, analyses and results of the examining scientist. At trial, the defendant objected on hearsay grounds. After the defendant’s conviction, the defense for the first time lodged a Confrontation Clause objection, contending the defendant was denied a chance to cross-examine the expert who performed the DNA tests.

The Eighth Circuit found no plain error. The Eighth Circuit agreed with other courts that DNA samples were not testimonial. The circuit noted: “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”).

While the issue was reviewed for plain error since no contemporaneous objection was raised at trial, this case continues a recent trend testing the boundaries of the Confrontation Clause on expert testimony. See also Expert Testimony Based On Hearsay Did Not Violate The Confrontation Clause; Amici Arguments On The Confrontation Clause Implications Of Forensic Reports.

Federal Rules of Evidence