First Circuit clarifies that "second analysis" expert testimony is permitted under the Confrontation Clause; however, the expert testimony should avoid referring to the conclusions of the first examiner who does not testify at trial, in United States v. Soto, 720 F. 3d 51 (1st Cir. June 24, 2013) (No. 11-1646)
The Federal Evidence Blog has noted how the lower courts continue to grapple with the application of the Confrontation Clause to expert testimony based on the lack of clarity from recent Supreme Court cases. See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois. The First Circuit recently considered one aspect of this issue concerning the testimony of an expert that reexamines evidence when the first examiner is no longer available to testify at trial.
In the case, defendant Soto was prosecuted on fraud and identity theft charges based on using the identification of others and false documents to purchase four motorcycles. At trial, reference was made to two separate computer forensic examinations that were conducted by two U.S. Secret Service agents. Only the second agent testified. The agents examined a laptop seized from an automobile purchased by the defendant. Key emails, W-2 reports, utility and real estate payments in the name of a friend which Soto used to purchase three automobiles. A second agent conducted a reexamination after the first agent was transferred to another assignment. In describing the examination, the second agent testified that he “confirmed that everything that was in” the first agent’s “report was exactly the way he said it was.” The first agent stated that key records from the hard drive were found “in the same folder that” the first agent “had found it in.” On cross-examination, the second agent was asked why he reexamined the hard drive. The agent responded: “To confirm that everything on” the first agent’s “report was exactly the way he said it was.” In response to another question, the agent noted that the first agent had been transferred to Washington, D.C. to the “technical security division” supervising “the alarms and electronic security at the White House.” Soto, 720 F.3d at 57. The defense counsel objected to the testimony of the second agent about the results of the first agent’s examination but did not clarify the basis was under the Confrontation Clause. After his trial conviction, the defendant appealed claiming his Confrontation Clause rights were violated by the admission of the second agent’s testimony concerning the first agent’s examination and who did not testify.
”Second Analysis” Expert Testimony
In affirming the conviction, the First Circuit addressed the issue of a forensic reexamination (in this instance of a computer hard drive) following an initial examination by an examiner who does not testify at trial. The panel included Retired Justice David H. Souter, sitting by designation, First Circuit Judge Jeffrey R. Howard, and District of Maine District Judge Nancy Torresen, who wrote the opinion.
The circuit concluded that the problem of impermissible “surrogate testimony,” noted in Bullcoming v. New Mexico, 564 U.S. _, 131 S. Ct. 2705, 2715 (2011), did not apply to the case. Significantly, the second agent “testified about a conclusion he drew from his own independent examination of the hard drive” and it was not necessary to admit the conclusions from the first agent through the second agent. Soto, 720 F.3d at 59 (citing Bullcoming, 131 S.Ct. at 2716 (“the Clause does not tolerate dispensing with confrontation simply because the court believes that questioning one witness about another's testimonial statements provides a fair enough opportunity for cross-examination”); United States v. Ramos-González, 664 F.3d 1, 6 (1st Cir. 2011) (concluding that the Confrontation Clause was violated where expert “testimony amounted to no more than the prohibited transmission of testimonial hearsay” of a non-testifying analyst’s conclusion that substance contained cocaine and no independent opinion about the nature of the substance was provided)). As the circuit explained:
We do not interpret Bullcoming to mean that the agent who testifies against the defendant cannot know about another agent’s prior examination or that agent’s results when he conducts his examination. The government may ask an agent to replicate a forensic examination if the agent who did the initial examination is unable to testify at trial, so long as the agent who testifies conducts an independent examination and testifies to his own results.
Soto, 720 F.3d at 59-60.
In confronting the issue of whether there was any Supreme Court authority to permit a reexamination, the circuit identified “six justices [that] would find no Sixth Amendment violation when a second analyst retests evidence and testifies at trial about her conclusions about her independent examination.” First the circuit cited "part IV of the Supreme Court's Bullcoming opinion, joined only by Justice Scalia, Justice Ginsburg observ[ing] that the state could have avoided a Sixth Amendment violation when it realized that the original scientist was unavailable to testify “by asking [the testifying analyst] to retest the sample, and then testify to the results of his retest rather than to the results of a test he did not conduct or observe.” Second, the circuit noted that "Justice Kennedy, with Chief Justice Roberts, Justice Breyer, and Justice Alito, in dissent, concluded that testimony from a knowledgeable lab representative is sufficient under the Sixth Amendment." Soto, 720 F.3d at 59 n.5.
However, the second agent’s testimony that “everything that was in” the first agent’s “report was exactly the way he said it was,” and that a key exhibit “was contained in the same folder that” the first agent “had said that he had found it in” raised separate constitutional issues. The circuit noted that this testimony was “arguably testimonial and offered for their truth” and used to bolster the second agent’s “independent conclusion” where the exhibit was found Soto, 720 F.3d at 60 (citing United States v. Meises, 645 F.3d 5, 21 (1st Cir. 2011) (“[I]f what the jury hears is, in substance, an untested, out-of-court accusation against the defendant . . . the defendant’s Sixth Amendment right to confront the declarant is triggered.”)). While this testimony was not permitted, the circuit concluded that “this Confrontation Clause violation was not plain error” since it was cumulative to other testimony. Soto, 720 F.3d at 60.
Based on recent Supreme Court cases involving expert testimony under the Confrontation Clause, the Soto case provides some useful guidance. First, reexamination or "second analysis" testimony should be permitted where the second examiner conducts an independent review of the evidence and testifies about his or her independent conclusions. Second, to avoid challenges of impermissible bolstering, the second examiner should minimize reference to the conclusions of the first examiner. Any testimony about testimonial statements of the non-testifying first examiner may be subject to challenge under the Confrontation Clause.
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