In a rape, kidnapping and carjacking prosecution, there was no plain error under the Confrontation Clause in admitting DNA expert testimony (that DNA evidence connected the defendant to DNA found on the victim’s genitalia and a condom found at rape scene) by an analyst who relied on reports of DNA and serology analysis performed by two other state crime lab technicians who did not testify, in United States v. Pablo, 625 F.3d 1285 (10th Cir. Nov. 16, 2010) (No. 09-2091)
Under FRE 703, an expert witness may rely on inadmissible facts or data as long as it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” The inadmissible information cannot be disclosed to the jury unless “the court determines that [its] probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs [its] prejudicial effect.” One emerging issue under the Confrontation Clause concerns the extent that an expert may testify about the opinion of others who do not testify at trial. In a recent case, the Tenth Circuit noted the absence of bright lines: “The degree to which an expert may merely rely upon, and reference during her in-court expert testimony, the out-of-court testimonial conclusions of another person not called as a witness is a nuanced legal issue without clearly established bright line parameters, even today with the benefit of Melendez-Diaz [v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2532 (2009). ]” In Melendez-Diaz, a cocaine-trafficking case, the Supreme Court held that certificates of forensic analysis confirming that the seized substance was cocaine was “testimonial” and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.”
In the Tenth Circuit case, defendants Pablo and Gordo were prosecuted for committing rape, kidnapping and carjacking prosecution of a sixteen year old. Two lab reports were prepared for DNA and serology by separate analysts. Neither of these analysts testified at trial (one analyst was unable to testify after “she became seriously ill while pregnant.” Pablo, 625 F.3d at _ n.6. Another analyst testified about the DNA evidence connected the defendant to DNA found on the victim’s genitalia and a condom found at rape scene. This
Defendant Gordo was convicted as charged and defendant Pablo was convicted of most counts. On appeal for the first time, the defendants objected that the expert’s testimony concerning the conclusions of the two non-testifying analysts violated the Confrontation Clause.
The Tenth Circuit reviewed the matter for plain error since no trial objection was lodged and none was found. Normally the inadmissible evidence is offered for the limited purpose to provide the basis for the expert opinion and not for the truth of the matter asserted. See Wilson v. Merrell Dow Pharm., Inc., 893 F.2d 1149, 1153 (10th Cir. 1990) (“The hearsay is admitted for the limited purpose of informing the jury of the basis of the expert’s opinion and not for proving the truth of the matter asserted.”). Consequently, the Tenth Circuit noted that the “admission of those testimonial statements under Rule 703 typically will not implicate a defendant’s confrontation rights because the statements are not admitted for their substantive truth.” Pablo, 625 F.3d at _ (citing Crawford v. Washington, 541 U.S. 36, 60 n.9 (2004) (“The Clause also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”)). However, the circuit noted:
The extent to which an expert witness may disclose to a jury otherwise inadmissible testimonial hearsay without implicating a defendant’s confrontation rights, however, is a question of degree. If an expert simply parrots another individual’s testimonial hearsay, rather than conveying her independent judgment that only incidentally discloses testimonial hearsay to assist the jury in evaluating her opinion, then the expert is, in effect, disclosing the testimonial hearsay for its substantive truth and she becomes little more than a backdoor conduit for otherwise inadmissible testimonial hearsay.
Pablo, 625 F.3d at _ (citations omitted).
With regard to the expert testimony about the DNA analysis and report, the circuit did not need to decide whether error resulted since any error was not plain, under United States v. Olano, 507 U.S. 725, 734 (1993); see also Johnson v. United States, 520 U.S. 461, 467 (1997). Significantly, the expert provided her own conclusions based on “her own extensive review of the entire test procedure in this case.” The record did not reflect that the expert “merely parroted” the two analyst’s reports. The references to the other analyst reports occurred “in the context of explaining some of the data and information she” relied upon for “her own expert opinion”. Pablo, 625 F.3d at _. Unlike Melendez-Diazv. Massachusetts, in which the trial court “admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine,” in this case neither of the two analysts reports which were reviewing by the testifying expert were admitted into evidence.
Chief Judge Mary Beck Briscoe concurred but did not believe that the reports “contained testimonial statements.” No testimonial statements were involved because the non-testifying analyst’s report was not intended “to be the functional equivalent of live, in-court testimony” or was sworn “before an officer authorized to administer oaths”; instead, “ under the laboratory’s protocols, [the] reports were prepared in such a manner that they could be testified to by any criminalist from the laboratory.” Pablo, 625 F.3d at _.
The Pablo case highlights an interesting area involving expert testimony in which there are no bright lines. The Supreme Court may ultimately have an opportunity to provide further guidance. For other cases considering this issue, see FRE 703 Use Of Testimonial Hearsay By Expert Witnesses Does Not Violate The Confrontation Clause ; Supervisor’s Expert Testimony Did Not Violate Confrontation Clause By Describing Peer Review Process; Expert Testimony Based On Hearsay Did Not Violate The Confrontation Clause; Peer Review Experts, Hearsay, And The Confrontation Clause
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