Fifth Circuit Concludes Melendez-Diaz Error Was Not Plain Error

While admission of a drug lab report in drug trial without the testimony of the report’s authoring analyst violates a defendant’s Confrontation Clause rights under the recent decision in Melendez-Dias v. Massachusetts, under the unique circumstances of the case, the admission of the drug lab report did not constitute plain error, in United States v. Rose, 587 F.3d 695 (5th Cir. Nov. 6, 2009) (No. 08-10813)

In June 2009, in Melendez-Dias v. Massachusetts, 557 U. S. __ (2009) (No. 07–591), the Supreme Court held that certificates of forensic analysis are “testimonial” and that the Sixth Amendment does not allow a prosecutor to introduce only a lab report and not testimony from the expert who made the report. See Supreme Court Holds Forensic Analysis Affidavits Violated Confrontation Clause. In writing for the six-justice majority of the Court, Justice Scalia explained that “[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence” violated the Confrontation Clause. In Melendez-Diaz, the error resulted in reversal of the judgment and a remand to the state court. Few cases have made their way to the circuits in the wake of Melendez-Diaz. Recently, the Fifth Circuit had occasion to consider Melendez-Diaz’s application, finding that any Confrontation Clause violation was not plain error.

In the case, defendant Rose was convicted of possessing of crack cocaine with intent to distribute, possessing a firearm in furtherance of a drug trafficking offense, and possessing a firearm by a convicted felon. At the time of his arrest, police “retrieved the baggie Rose had thrown, which was sent to the Southwest Institute of Forensic Sciences (SWIFS) for testing.” During the defendant’s trial, the prosecutor:

“called Monica Lopez, the supervisor of the drug laboratory at SWIFS. Lopez testified as an expert witness about the analysis that her laboratory had conducted on the crack cocaine Rose had thrown from the vehicle. SWIFS determined that the sample contained 15.5 grams of crack cocaine. Lopez identified the laboratory report that SWIFS had prepared; she was not listed as the ‘Analyst,’ but she signed the lab report as a ‘Reviewer.’ Lopez testified that the analyst had generated the report. Rose did not object to Lopez’s testimony or to the report; the report was admitted into evidence. Rose’s cross-examination of Lopez focused exclusively on the calibration of the testing equipment.”
Rose, 587 F.3d at 698. The defendant did not object to the admission of the lab report or the supervisor’s testimony at trial. The jury convicted the defendant.

After his conviction, for the first time on appeal, the defendant claimed that under Crawford v. Washington, 541 U.S. 36 (2004), the lab report was inadmissible under the Confrontation Clause as testimonial hearsay. He argued that the trial court’s admission of the supervisor’s testimony without the testimony of the analyst who actually conducted the testing violated the defendant’s Confrontation Clause rights. While “reserv[ing] judgment” on the issue, the circuit agreed “that the SWIFS lab report, like the certificates of analysis in Melendez-Diaz, is a testimonial statement for purposes of the Confrontation Clause” and that its admission would violate the defendant’s Confrontation Clause rights. Rose, 587 F.3d at 700.

However, the constitutional issue was reviewed for plain error since the defendant failed to object to the introduction of the lab test evidence at trial, and no plain error was found. The circuit noted that the record on appeal was deficient in clearly framing what had happened at trial. As the circuit observed, “Lopez’s testimony does not precisely delineate whether she did or did not have personal knowledge of the tests performed or the results of the report.” The result was that there were “matters that should have been brought out either on direct examination or on cross-examination, but Rose’s failure to object to her testimony or to the report left the issue unclear.” Rose, 587 F.3d at 701.

The circuit took particular pain to explain that its finding was limited. “We clarify here that we do not hold that the prosecution may avoid confrontation issues through the in-court testimony of any witness who signed a lab report without regard to that witness’s role in conducting tests or preparing the report.” Rather, “any error that may have arisen from the facts of this case … was not plain as required by our standard of review.” Rose, 587 F.3d at 701.

In reaching this conclusion, the circuit noted that its finding was limited. “Other courts have reached varying conclusions when faced with related factual situations,” it observed, such as:

  • Larkin v. Yates, No. 09-2034, 2009 WL 2049991, at *1-2 (C.D.Cal. July 9, 2009) (unpublished) (denying application for writ of habeas corpus on Confrontation Clause issue where the lab supervisor, testifying as expert witness, relied on the result of tests performed by a non-testifying analyst, because the state courts did not unreasonably apply clearly established federal law)
  • People v. Rutterschmidt, 176 Cal.App.4th 1047, 1074-76, 98 Cal.Rptr.3d 390, 411-13 (2009) (distinguishing Melendez-Dias v. Massachusetts where expert witnesses testified about scientific analyses in which they did not participate, but DNA test report was not introduced into evidence)
  • People v. Johnson, 2009 WL 2999142, at *8-9 (Ill.App.Ct. Sept. 18, 2009) (same result as People v. Rutterschmidt)
  • Pendergrass v. State, 913 N.E.2d 703, 707-08 (Ind. 2009) (upholding admission of DNA test without testimony of analyst who performed the test because the defendant “had the opportunity to confront at trial two witnesses who were directly involved in the substantive analysis,” and because the “laboratory supervisor who took the stand did have a direct part in the process by personally checking [the analyst]’s test results”)
  • State v. Galindo, 683 S.E.2d 785, 2009 WL 3384175, at *4 (N.C.Ct.App. Oct.20, 2009) (finding admission of drug test lab report was harmless error where supervisor testified about procedures and equipment, testing analyst did not testify, and other evidence adequately established the composition and quantity of the drugs)
  • Wood v. State, No. 03-08-00257-CR, 2009 WL 3230848, at *6 (Tex.App. Austin Oct. 7, 2009, no pet. h.) (finding Confrontation Clause violation where chief medical examiner, not present at an autopsy, testified to the contents of the resulting autopsy report)

While not mentioned in the Rose opinion, the Supreme Court will resolve a similar Confrontation Clause issue this January when it considers whether the government in presenting a forensic lab report in a criminal trial must make the analyst who prepared the report available for defense cross-examination, in Briscoe, et al., v. Virginia (07-11191). In Briscoe, the Court will consider whether the prosecutor can avoid the obligation imposed by Crawford by “by providing ... the accused ... a right to call the analyst as his own witness” at trial.” See Certiorari Granted In Briscoe v. Virginia Confrontation Clause Case Set For 2010 Supreme Court Term.

For more on the Melendez-Diaz decision, visit the Melendez-Diaz Resource Page. More is available on the case law as it develops at Cases Applying Melendez-Diaz .

Federal Rules of Evidence
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