In Reviewing Expert Chemist Testimony Referring To Non-Testifying Expert’s Lab Analysis, Distinguishing Melendez-Diaz

First Circuit considers challenge to expert chemist’s trial testimony which noted the results of another chemist who did not testify confirming that an uncharged sample, from a controlled buy, was cocaine base; while Melendez-Diaz was distinguishable for a number of reasons, any assumed error was harmless beyond a reasonable doubt based on other independent evidence, in United States v. McGhee, _ F.3d _ (1st Cir. Dec. 7, 2010) (No. 09-1322)

Under recent Confrontation Clause analysis, a pending issue concerns how far an expert may testify concerning the results provided by a non-testifying expert. On the one hand, FRE 703 permits an expert to rely on other facts or data, including information of other experts, even if inadmissible so long as it is “a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” On the other hand, in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), the Supreme Court held that certificates of forensic analysis are “testimonial” and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.” The First Circuit noted that “[t]he quality and quantity of dependence is going to vary from case to case and, absent clarification by the Court, how Rule 703 and Melendez-Diaz are to be reconciled may, in some cases, involve case-by-case assessments.” McGhee, _ F.3d at _.

In the case, during an investigation, in a hotel room a confidential informant purchased a sample from “Pooh,” later determined to be defendant McGhee. A field test confirmed the presence of crack cocaine. Officers then obtained and executed a search warrant for the hotel room and discovered marijuana hidden in McGhee’s shoes and a concealed bag in his underwear shorts which included thirty-one baggies which each contained cocaine base. Defendant McGhee was charged with possessing at least five grams of cocaine base and possessing less than five grams of cocaine base with the intent to distribute. Both counts were based on the seizure of the bag holding the thirty-one baggies (under a possession and distribution theory). At trial, “evidence of the earlier [uncharged] sale was offered by the government to confirm that McGhee was a drug trafficker and so to support the inference that the thirty-one baggies–or some portion of them—were also intended for distribution.” McGhee, _ F.3d at _. An expert chemist confirmed the baggies contained cocaine base, totaling 7.88 grams. Additionally, the expert testified that another chemist determined that the sample, obtained by the informant, contained cocaine base weighing 0.49 grams. The records of the other chemist were not admitted. After the defendant was convicted by the jury on both counts, on appeal, he did not challenge the expert testimony concerning the presence of the cocaine base confirmed in the thirty-one baggies. Instead, he argued that the expert testimony concerning the presence of cocaine base during the uncharged purchase by the confidential informant violated the Confrontation Clause because the analyst conducting the test did not testify.

The First Circuit affirmed the admission of the expert testimony. The defendant argued that the first expert “channeled” the second expert’s report and therefore the case was controlled by Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), in which the Supreme Court held that certificates of forensic analysis are “testimonial” and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.”

The First Circuit found Melendez-Diaz was readily distinguishable for at least four reasons. First, unlike Melendez-Diaz, the report of the second expert was not introduced at trial. Second, the expert trial testimony did not “comprise a direct recitation of that report, as in Davis v. Washington, 547 U.S. 813, 826 (2006). McGhee, _ F.3d at _. Third, since Justice Thomas “made up the needed fifth vote in Melendez-Diaz, 129 S. Ct. at 2543 (Thomas, J., concurring),” it was unclear under his “narrower interpretation” of the Confrontation Clause whether the trial testimony “relying only in part on” the second expert was tantamount to “a forbidden introduction of” the second report, “even assuming that” the trial testimony was testimonial. Fourth, the testifying expert’s opinion “did not rest on” the second expert’s “conclusion alone” as the first expert used the “technical test data … to draw her own scientific conclusion” about the sample. Under FRE 703, an expert is permitted to “rely in some measure on information gathered by other experts.”

On this last point, the First Circuit noted that several courts had distinguished Melendez-Diaz under this rationale:

  • United States v. Turner, 591 F.3d 928, 934 (7th Cir. 2010) (“Moreover, Melendez-Diaz did not do away with Federal Rule of Evidence 703. And most importantly, unlike in Melendez-Diaz, Hanson’s [expert] report was not admitted into evidence, let alone presented to the jury in the form of a sworn affidavit, ‘functionally identical to live, in-court testimony, doing `precisely what a witness does on direct examination. Instead, Block testified as an expert witness presenting his own conclusions about the substances in question to the jury. Accordingly, Melendez-Diaz does not control this case.”) (citations and quotation marks omitted)
  • United States v. Williams, Criminal No. 09-0026 (PLF) (D.D.C. Oct. 18, 2010)
  • United States v. Mirabal, No. CR 09-3207 JB (D.N.M. Aug. 7, 2010)
  • See also United States v. Winston, 372 F. App’x 17, 19-20 (11th Cir. 2010) (per curiam) (“The Supreme Court’s decision in Melendez-Diaz did not address the facts that may form the basis of expert testimony, and therefore that decision neither controls the instant case nor demonstrates plain error.”)
  • United States v. Johnson, 587 F.3d 625, 634-36 (4th Cir. 2009) (“An expert witness’s reliance on evidence that Crawford would bar if offered directly only becomes a problem where the witness is used as little more than a conduit or transmitter for testimonial hearsay, rather than as a true expert whose considered opinion sheds light on some specialized factual situation.”), cert. denied, 130 S. Ct. 2128 (2010) [
  • United States v. Darden, 656 F. Supp. 2d 560, 563 (D. Md. 2009) (“The Government may introduce Mr. Zarwell’s report to supplement his testimony, but the important point is that Mr. Zarwell’s report may be admitted to supplement his testimony, but not in lieu of it.”)
  • Larkin v. Yates, No. CV 09-2034-DSF (CT) (C.D. Cal. July 9, 2009) (“Rather than simply read the reports into evidence, Dr. Word, albeit not contemporaneously with the preparation of the report, independently reviewed all the relevant data and offered her own independent interpretation of that data.”) (footnote omitted)

The First Circuit acknowledged that the trial expert’s opinion was based in part on the second non-testifying expert. After noting these issues, the First circuit found that even assuming the Confrontation Clause barred a portion of the expert’s testimony, any error was “patently harmless beyond a reasonable doubt.” The portion of the testimony relying on the second non-testifying expert “was virtually irrelevant” based on other “uncontradicted” and overwhelming evidence of guilt.

As the McGhee opinion noted, a number of courts have wrestled with the issue of expert trial testimony based in part on the analysis of non-testimony expert reports or conclusions. Several have concluded that FRE 703 permits some leeway for an expert’s reliance on the conclusions of a non-testifying expert. Finally, the question remains whether the Supreme Court will provide guidance in this area. As the the First Circuit noted, “[t]he Supreme Court’s new slant on the Confrontation Clause is likely to be contested territory for some years, although the recent grant of certiorari in State v. Bullcoming, 226 P.3d 1 (N.M. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-10876), may lead to some clarification.” For more information on the Bullcoming case, see Supreme Court Watch: New Confrontation Clause Case Added To Calendar Concerning Statements Of A Nontestifying Forensic Analyst..

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