Supervisor's Expert Testimony Did Not Violate Confrontation Clause By Describing Peer Review Process

Supervisor expert testified about his role in the peer review process; passing reference to the testing chemist’s conclusion did not violate the Confrontation Clause; circuit also distinguishes Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), in United States v. Turner, 591 F.3d 928 (7th Cir. Jan. 12, 2010) (No. 08-3109)

A recent Seventh Circuit case revisits the issue of expert testimony which refers to the analysis of another expert. Is the Confrontation Clause violated when a supervisor testifies about the peer review process, his role in confirming reviewing the test results, and the initial results of another chemist? On the fact of the case, the circuit concluded there was no constitutional violation.

In the drug distribution case, before trial the government provided pretrial notice that a chemist would provide expert testimony concerning her identification of seized substances as crack cocaine and the corresponding weight. A couple of days later, the government identified her supervisor, and chief of the drug identification unit, as the trial expert since the chemist was on maternity leave. The defendant moved to exclude the supervisor’s expert testimony under the Confrontation Clause since the chemist was unavailable to testify about the forensic conclusions in her report. The trial court denied the motion after the government noted that the supervisor would testify about his own conclusions and not the chemist’s. At trial, the supervisor testified about the processes used to identify the nature of a substance, and his role in conducting the peer review of the analysis in the unit. On this point, he testified and referred to the non-testifying chemist’s analysis:

As the unit head, I perform the peer review of the other analysts within the drug identification section. I reviewed this report that Amanda Hanson generated for the analysis of the chunky material in Exhibits 1, 2, and 3, reviewing the handwritten notes and the generated data, and came to the same conclusion based on the information provided that each of these items contained the same material and I signed off on that peer review.

Turner, 591 F.3d at 931. He also testified that his “opinion based upon the examinations that were performed on the chunky materials within Exhibits 1, 2, and 3, along with my experience, is that each of these items in 1, 2, and 3 contain cocaine base.” Turner, 591 F.3d at 931. None of the chemist’s notes or report or charts were admitted. The defendant was convicted and sentenced to 210 months’ imprisonment as a career offender. On appeal, he challenged the expert trial testimony as violating his Confrontation Clause rights since he was unable to cross-examine the forensic chemist who tested the substance.

The Seventh Circuit affirmed. The circuit first turned to the “critical inquiry” whether testimonial statements were introduced. Other than the supervisor’s “passing comment” to chemist’s analysis, no “testimonial” statements were admitted under the Sixth Amendment. The chemists notes, report or machine test results were not introduced into evidence. The case was similar to 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” before leaving the agency; noting “the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself”).

With regard to the passing reference to the chemist’s results, the supervisor properly testified about his role in verifying the chemist’s lab results. Consequently, “he could testify about his personal involvement in the testing process, about the accuracy of the tests, and about agreeing with [the chemist] when he signed off on her report.” Turner, 591 F.3d at 933. Further, he also testified about his own opinion.

Alternatively, the circuit noted that any error in the supervisor’s testimony about “how the peer review process applied in this case,” the error was harmless. The circuit distinguished a case relied upon by the defendant, United States v. Cuong, 18 F.3d 1132, 1143 (4th Cir. 1994) (reversing expert testimony relying on another expert’s conclusions and bolstering the qualifications of the prior expert). As the circuit explained, “Unlike in Cuong, the qualifications of [the chemist] – the testing scientist — were not put before the jury. And the brief mention of her conclusion was made in reference to explaining how the peer review process works at the laboratory”.

Finally, the circuit concluded that last year’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S.Ct. 2527 (2009), did not compel a contrary result. The case was decided after oral argument and the parties had a chance to brief the issue. In distinguishing Melendez-Diaz, the circuit noted the role of FRE 703 in expert testimony:

In writing for the Court, Justice Scalia explicitly stated that ‘we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.” Melendez-Diaz, 557 U.S. at __ n.1, 129 S.Ct. ] at 2532 n.1. Moreover, Melendez-Diaz did not do away with Federal Rule of Evidence 703. And most importantly, unlike in Melendez-Diaz, [the chemist]’s 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,”’ id. at 2532. Instead, [the supervisor] 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.

The Turner case highlights the interplay between FRE 703 and the Confrontation Clause. Had testimonial statements of the testing chemist been introduced, a different analysis would have been required. For other cases touching on this issue, see Melendez-Diaz And Supervisor/Peer Review Forensic Expert Testimony.

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