FRE 703 And The Confrontation Clause

In a drug and illegal firearms case, admitting under FRE 703 the opinion testimony of the forensic examiner who supervised and directed lab's testing of jacket for a DNA match with the defendant; admission of the expert's opinion did not violate the Confrontation Clause as it was an "'original product' that could be (and was) readily 'tested through cross-examination'” after the witness had "painstakingly explained the process whereby he, and he alone, evaluated the data to reach the conclusion that, to a reasonable degree of scientific certainty" the defendant was a major donor of DNA found on the jacket, in United States v. Summers, 666 F.3d 192 (4th Cir. Dec. 16, 2011) (No. 06-5009)

In 2009 the Supreme Court resolved that a forensic lab result certificate was testimonial hearsay violating the Confrontation Clause. Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527 (2009). Yet the circuits appear divided about whether a lab supervisor or outside expert may testify on the lab results. In Bullcoming v. New Mexico the Supreme Court considered the propriety of one sort of testimony by a witness other than the person who performed the test, but left open whether other forms of test testimony would satisfy the requirements of Crawford v. Washington. The Fourth Circuit recently considered another instance of testimony by a lab surrogate who did not perform the actual test. The case demonstrates some of the practical difficulties in considering the propriety of such testimony.

In the case, defendant Summers was arrested after has he was chased by a uniformed detective (Hampson) joined by two detectives not in uniform (Schmick and Morris). When the chase started the officers noticed he was wearing a black North Face-branded jacket. After they recaptured him, the defendant was "no longer wearing the jacket." The officers found a North Face black jacket along the defendant's route of escape. Subsequently, based in part on what was in the jacket, the defendant was indicted for possession with intent to distribute crack and for possession of a firearm as a felon.

At the defendant's trial, the black jacket was admitted as Exhibit 1. The jacket was identified by all three officers involved in the chase as the one the defendant had been wearing on the day of his arrest. In addition to this evidence, the government introduced testimony by "Shea, a forensic examiner," at the lab that tested the jacket for DNA evidence. He testified that "that he had directed his subordinate analysts to conduct two methods of polymerase chain reaction ... typing on the jacket" and "swabs taken from Summers's mouth. Shea ... testif[ied] that although DNA from at least four different people was found on the jacket, Summers was the major contributor." Shea opined that this result made it likely that defendant Summers was the major DNA contributor “to a reasonable degree of scientific certainty ... statistically calculating the probability of a random match as equal to or less than one in 280 billion." No other lab analyst testified at the trial.

On cross-examination of the expert, defense counsel had him opine as to the uncertainties of the test and that "the jacket would have been subjected to the standard routing and inventory process." The jury returned a verdict of guilty of the drug and firearm possession charge.

The defendant appealed, contending that "the absence at trial of the analysts responsible for conducting the DNA tests on the jacket, the results of which provided the basis for Shea's testimony" was a violation of the Confrontation Clause. The circuit dismissed this concern, noting that it

perceive[d] little difficulty with the admission of Shea's testimony, given the predominance therein of his independent, subjective opinion and judgment relative to the lesser emphasis accorded the objective raw data generated by the analysts. See Fed.R.Evid. 703 (instructing that facts or data upon which an expert bases an opinion or inference, if of a type reasonably relied on by similar experts, “need not be admissible in evidence in order for the opinion or inference to be admitted”).

On the witness stand, Shea painstakingly explained the process whereby he, and he alone, evaluated the data to reach the conclusion that, to a reasonable degree of scientific certainty, Summers was the major contributor of the DNA recovered from the jacket. In that respect, Shea's testimony was no different, and no more problematic, than that of the police officers in Johnson. Far from being “a conduit or transmitter” of what his subordinate analysts had concluded about the jacket, Shea's opinion was an “original product” that could be (and was) readily “tested through cross-examination.” Johnson, 587 F.3d at 635.
Summers, 666 F.3d at 201-02.


In a longer analysis, the circuit opined that for a written report that was submitted by the testifying expert "much the same can be said" as it "more or less mirrored his trial testimony." But the circuit cautioned that "[t]he appearance of the [non-testifying lab] analysts' testing results within, however, gives us pause...."

The circuit explained its approval of the expert's testimony, but caution about the expert's report, was because:

insofar as the table detailing those results constituted a more prominent part of the report than the underlying data did of the testimony. This is not to imply that the data was unimportant to Shea's opinion, for of course it was crucial. The difference is that while Shea's testimony focused upon the conclusions he drew from the data, the report invited the jurors' attention to the data's numerical identifiers. Admission of the report presented an unnecessary risk that the jury would improperly evaluate the DNA evidence based on its lay perceptions of what the data meant rather than on Shea's expertise and any potential inaccuracies in his conclusions that might be developed on cross-examination.
Summers, 666 F.3d at 202.


The circuit explained its reasoning here, distinguishing other cases and authorities, and comparing and contrasting the trial of defendant Summers with the defendants in other prominent Confrontation Clause cases.

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Photo Description: Fourth Circuit, Lewis F. Powell, Jr. U.S. Courthouse, Richmond, VA

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