Another Confrontation Clause Case Involving A Second Expert Who Testifies After The First Expert Is No Longer Available

After a first analyst retired, a second expert testified about her conclusions without retesting the substance which was determined to be crack cocaine by both experts; Seventh Circuit concludes that the Confrontation Clause was not violated by the second analyst's review and reliance on the original raw data; case also considers the impact of the Supreme Court's plurality decision in Williams v. Illinois concluding the plurality opinion did not change the result, in United States v. Maxwell, 724 F.3d 724 (7th Cir. July 19, 2013) (No. 12-1809)

The Federal Evidence Blog continues to follow the uncertainty noted by courts in applying the Confrontation Clause to expert testimony following the Williams v. Illinois case, particularly after a first expert who obtained the results does not testify at trial. See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois; see also "Second Analysis" Expert Testimony Under The Confrontation Clause. Last week, the Seventh Circuit considered another factual scenario involving this issue.

Trial Proceedings

In the case, defendant Maxwell was arrested after he sold crack cocaine, powder cocaine and ecstasy to a confidential information. During the arrest, officers discovered about 13 grams of suspected cocaine concealed on his person. The defendant was charged with possessing crack cocaine with the intent to distribute. An analyst who had tested and identified the seized substance as crack cocaine retired before trial. One of his co-workers reviewed the data results from the first analyst’s tests. She also concluded that the substance was crack cocaine. The defendant, who had fired his court-appointed counsel, represented himself at trial with the assistance of standby counsel. The second analyst, Gee, testified that she determined the seized substance was crack cocaine. While “she did not perform the ‘primary analysis’ of the substance, but rather reviewed the raw data generated from gas chromatography and mass spectrometry tests performed by” the first analyst. In particular, the second analyst testified:

(1) about how evidence in the crime lab is typically tested when determining whether it contains a controlled substance, (2) that she had reviewed the data generated for the material in this case, and (3) that she reached an independent conclusion that the substance contained cocaine base after reviewing that data.

Maxwell, 724 F.3d at 727. No objection was raised concerning this testimony by the defendant. He also did not cross-examine the second analyst concerning “the nature of the substance.” After his jury conviction, in a post-trial motion he argued for the first time that his Confrontation Clause rights were violated since the second analyst “did not conduct the lab work herself.” Maxwell, 724 F.3d at 726. The motion was denied and the issue was included in his appeal.

Circuit Analysis

Since no trial objection was raised to the experts testimony, the issues was reviewed for plain error, under FRE 103(e); however, “[b]ecause there was no error, the admission of the testimony was not plainly erroneous.” Maxwell, 724 F.3d at 728.

Raw Data Is Not A "Statement"

Since the raw data from the original testing was not a statement, the use of the data generated by the first analyst did not pose a Confrontation Clause problem for the testimony of the second analyst. Further, the facts or data that an expert relies upon need not be admissible under FRE 703. Maxwell, 724 F.3d at 726-27 (citing United States v. Turner, 709 F.3d 1187, 1190 (7th Cir. 2013) (noting that “an expert who gives testimony about the nature of a suspected controlled substance may rely on information gathered and produced by an analyst who does not himself testify”); United States v. Moon, 512 F.3d 359, 361 (7th Cir. 2008) (“When an expert testifies, ‘the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.’”) (quoting FRE 703)).

The Seventh Circuit also noted some distinguishing factual features about the testimony. The second analyst “did not read from” or testify about relying upon the first analyst’s “report while testifying; ”did not vouch for whether” the first analyst “followed standard testing procedures or state that she reached the same conclusion as” the first analysts “about the nature of the substance”; the first analyst’s report was not introduced; and the second analyst was cross-examined although not about the nature of the substance.

Impact Of The Plurality Decision In Williams v. Illinois

The circuit disagreed that the last Confrontation Clause analysis was modified by the plurality decision from the Supreme Court in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). As the circuit noted:

A plurality of the Court found no Confrontation Clause problem with this testimony, but the Court’s 4-1-4 division left no clear guidance about how exactly an expert must phrase its testimony about the results of testing performed by another analyst in order for the testimony to be admissible.

Maxwell, 724 F.3d at 727 (citing [Williams, 132 S.Ct. at 2270, 2277 (Kagan, J., dissenting); see also [United States v.] Turner, 709 F.3d [1187,] 1189 [(7th Cir. 2013)] (explaining that “the divergent analyses and conclusions of the plurality and dissent sow confusion as to precisely what limitations the Confrontation Clause may impose when an expert witness testifies about the results of testing performed by another analyst, who herself is not called to testify”)).

While the second analyst’s “interpretation of” the first analyst’s data was certainly testimonial under the Confrontation Clause (since it was offered “to prove that the seized substance was cocaine base”), the Sixth Amendment did not prevent the analyst from considering the first analyst’s data in arriving at “her own conclusions, especially since she never mentioned what conclusions” the first analyst “reached about the substance.” Maxwell, 724 F.3d at 727 (citing Turner, 709 F.3d at 1190-91 (noting, after Williams, “an appropriately credentialed individual may give expert testimony as to the significance of data produced by another analyst”) (citing Williams, 132 S. Ct. at 2233-35)).

Finally, the circuit noted that it was relevant that the defendant did not object to the second expert’s trial testimony and never disputed the substance was crack cocaine:

We certainly understand the value in cross-examining the person who actually performed the forensic tests on the substance in question if the accuracy of those tests is doubted, for we surely recognize that these tests are not infallible. But Maxwell only cross-examined [second expert] Gee on the weight—not the composition — of the drugs because he was focused solely on showing his lack of intent to distribute. There was no question at trial about the type of drugs being distributed.

Moreover, the strategic decision to demand live testimony is the defendant’s choice to make, and one that many defendants (including Maxwell) opt to forego — sometimes for good reasons. See Melendez-Diaz [v. Massachusetts], 557 U.S. [305,] 328 [(2009)] (“It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis.”); Moon, 512 F.3d at 361 (“That it may be to defendants’ advantage to accept the hearsay version of evidence makes it problematic to entertain a Crawford claim via the plain-error clause of Fed. R. Evid. 103([e]). A defendant who sincerely wants live testimony should make the demand, so that the declarant can be produced. The lack of a demand for testimony by an available declarant leads to the conclusion that the appellate argument is strategic rather than sincere.”)).

Maxwell, 724 F.3d at 728.


The Maxwell case presents a recent case wrestling with the admissibility of a second expert’s testimony after a first expert becomes unavailable. As the case notes, clarity is still lacking from the Supreme Court since the plurality decision in Williams. Further, a number of key aspects distinguish Maxwell from other cases, for example where the second analyst testifies about testimonial statements from the non-testifying analyst. Until the Supreme Court provides further guidance, the lower courts will continue to wrestle with the application of the Confrontation Clause to expert testimony.

For more on the Turner and Moon cases, see past blog posts: Seventh Circuit Applies The Divided Williams v. Illinois Opinion To Expert Testimony (considering United States v. Turner, 709 F.3d 1187 (7th Cir. 2013));

Supervisor's Expert Testimony Did Not Violate Confrontation Clause By Describing Peer Review Process (considering United States v. Turner, 591 F.3d 928 (7th Cir. 2010) and United States v. Moon, 512 F.3d 359, 361 (7th Cir. 2008)).


Photo Description: U.S. Court of Appeals for the Seventh Circuit at the Everett McKinley Dirksen United States Courthouse in Chicago, Illinois. Learn more about the history of the courthouse.


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