First Circuit Expectations For Williams v. Illinois

doric columsVacating cocaine distribution conviction and remanding because defendant's trial included expert testimony by a witness about the contents of the drug identification analysis reported by a non-testifying expert, violating the Confrontation Clause; as the expert's trial testimony "simply parroted the conclusion" of the non-testifying expert, the testifying expert's "testimony amounted to no more than the prohibited transmission of testimonial hearsay," in United States v. Ramos-Gonzlez, __ F.3d __ (1st Cir. Dec. 9, 2011) (No. 10–1318)

Sixth Amendment Confrontation Clause jurisprudence since Crawford v. Washington fails to resolve whether the Confrontation Clause allows an forensic chemistry expert witness to testify as to the substance of an unadmitted forensic lab test performed by a different expert. As Justice Sotomayor pointed out in her concurring opinion in Bullcoming v. New Mexico, 564 U.S. _, 131 S.Ct. 2705, 2722 (2011), “We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the ... statements were not themselves admitted as evidence.” In a recent case, the First Circuit has weighed in on the issue identified in the Sotomayor concurrence.

In the case, defendant Ramos was convicted of cocaine distribution based in significant part on an analysis of "two plastic-wrapped blocks of a substance" later identified as cocaine. The identification was performed by a qualified chemist who could not testify "due to mental illness and related treatment" that made him "unavailable to testify regarding his analysis" at trial. As an alternative the prosecution presented testimony by an expert (Morales), who would testify “[b]ased on his specialized training and experience in the examination and analysis of controlled substances ... including the methodology used to examine the [drugs seized from the pickup], and the conclusions reached based on his expertise and examination of the substances.” United States v. Ramos-Gonzlez, __ F.3d at __.

The witness the prosecution relied upon to give expert testimony on identification of the charged drug "had no involvement in testing the seized substance, and was no longer working in" the same lab department as the scientist who conducted the test, but was now unavailable. In testifying, "Morales confirmed that the evidence envelope entered by the government bore the signature of his colleague Jos Borrero [who performed the test], which the testifying witness ... recognized from their years of working together. Based on the envelope's unique number, Morales explained that the analyzed substance was that which had been seized" by police and opined that the bricks tested "positive for cocaine, and had a combined weight of 2,116 grams, including its wrapping in the plastic."

The circuit distinguished the question raised by defendant Ramos-Gonzlez from questions raised in "Crawford, Melendez–Diaz, and Bullcoming — which forbid the introduction of testimonial hearsay as evidence in itself—with Rule 703, which permits expert reliance on otherwise inadmissible testimonial hearsay." Indeed, Bullcoming was decided subsequent to defendant's conviction. The circuit cautioned that answering the question of testimony by an expert based on another expert's report "will necessarily involve a case-by-case assessment as to the quality and quantity of the expert's reliance." Ramos-Gonzlez, _ F.3d at _ (citing United States v. McGhee, 627 F.3d 454, 460 (1st Cir. 2010).

The First Circuit assessment of the issue of the remote expert report was rather was heavily dependent on trying to apply the recent Confrontation Clause cases on the reception of expert evidence:

More specifically, the assessment is one of degree. Where an expert witness employs her training and experience to forge an independent conclusion, albeit on the basis of inadmissible evidence, the likelihood of a Sixth Amendment infraction is minimal. See United States v. De La Cruz, 514 F.3d 121, 134 (1st Cir. 2008) (holding that the Confrontation Clause does not limit experts offering their own opinion regardless of the independent admissibility of the material relied upon); see also Bullcoming, 131 S.Ct. at 2722 (Sotomayor, J., concurring) (“[T]his is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”). Where an expert acts merely as a well-credentialed conduit for testimonial hearsay, however, the cases hold that her testimony violates a criminal defendant's right to confrontation. See, e.g., United States v. Ayala, 601 F.3d 256, 275 (4th Cir. 2010) (“[Where] the expert is, in essence, ... merely acting as a transmitter for testimonial hearsay,” there is likely a Crawford violation); United States v. Johnson, 587 F.3d 625, 635 (4th Cir. 2009) (same); United States v. Lombardozzi, 491 F.3d 61, 72 (2d Cir. 2007) (“[T]he admission of [the expert's] testimony was error ... if he communicated out-of-court testimonial statements ... directly to the jury in the guise of an expert opinion.”). In this case, we need not wade too deeply into the thicket, because the testimony at issue here does not reside in the middle ground.

The government is hard-pressed to paint Morales's testimony as anything other than a recitation of Borrero's report. On direct examination, the prosecutor asked Morales to “say what are the results of the test,” and he did exactly that, responding “[b]oth bricks were positive for cocaine.” This colloquy leaves little room for interpretation. Morales was never asked, and consequently he did not provide, his independent expert opinion as to the nature of the substance in question. Instead, he simply parroted the conclusion of Borrero's report. Morales's testimony amounted to no more than the prohibited transmission of testimonial hearsay. While the interplay between the use of expert testimony and the Confrontation Clause will undoubtedly require further explication, the government cannot meet its Sixth Amendment obligations by relying on Rule 703 in the manner that it was employed here.

Ramos-Gonzlez, __ F.3d at __.

The First Circuit acknowledged that its disposition might not be the final word -- that its decision would reflect the undertainties inherent in the Confrontation Clause's "developing framework that we examine the case at bar":

Indeed, the [U.S. Supreme] Court has granted certiorari in People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268 (Ill.2010), cert. granted, ––– U.S. ––––, 131 S.Ct. 3090, 180 L.Ed.2d 911 (U.S. June 28, 2011) (No. 10–8505), to consider a version of this question. See id. (considering whether the disclosure of the substance of a forensic lab report, through an expert witness who took no part in the analysis, violates the Confrontation Clause).

United States v. Ramos-Gonzlez, __ F.3d at __.

Federal Rules of Evidence