Reconciling The Confrontation Clause and FRE 703

Recent cases highlight the need for guidance and clarification on the interplay between FRE 703 and the Confrontation Clause concerning the reliance of an expert witness on testimonial statements of a non-testifying expert; perhaps the pending case before the Supreme Court in Bullcoming v. New Mexico (No. 09-10876) may shed some light on this issue

Since the landmark 2004 Confrontation Clause ruling in Crawford v. Washington, 541 U.S. 36, 53–54 (2004), the application of “testimonial” statements continues to be tested. Among other areas, the interplay of the Confrontation Clause and FRE 703 continues to be a ripe area in which the lower courts continue to wrestle with.

FRE 703 And Sixth Amendment Confrontation

FRE 703 is an important rule which permits an expert to rely on other facts or data, including information provided by other experts, even if inadmissible so long as it is “a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Under the Confrontation Clause, the Supreme Court has held that certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits." Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2542 (2009). Short of forensic analysis certificates which are issued as a substitute for trial testimony, what are the limits in which an expert can rely and testify about the analysis of another non-testifying expert? Put another way, what happens when the type of evidence that experts rely upon in the particular field is the type of testimonial evidence precluded from use under the Sixth Amendment Confrontation Clause, as interpreted in Crawford v. Washington, 541 U.S. 36 (2004)?

Recent Circuit Cases On FRE 703-Confrontation Clause Overlap

In wrestling with this issue, the courts have largely considered whether independent analysis was applied by the testifying expert, or have found it necessary to distinguish Melendez-Diaz v. Massachusetts. In some cases, the issue was reviewed for plain error or whether the error was harmless beyond a reasonable doubt.

For some recent cases examples, consider:

  • United States v. McGhee, _ F.3d _ (1st Cir. Dec. 7, 2010) (No. 09-1322) (in considering a challenge to an expert chemist’s trial testimony which noted the results of another chemist who did not testify confirming that an uncharged sample, from a controlled buy, was cocaine base, and distinguishing Melendez-Diaz, any assumed error was harmless beyond a reasonable doubt based on other independent evidence); see also In Reviewing Expert Chemist Testimony Referring To Non-Testifying Expert’s Lab Analysis, Distinguishing Melendez-Diaz
  • United States v. Pablo, 625 F.3d 1285 (10th Cir. Nov. 16, 2010) (No. 09-2091) (in a rape, kidnapping and carjacking prosecution, there was no plain error under the Confrontation Clause in admitting DNA expert testimony [that DNA evidence connected the defendant to DNA found on the victim’s genitalia and a condom found at rape scene] by an analyst who relied on reports of DNA and serology analysis performed by two other state crime lab technicians who did not testify); see also Expert Testimony Referring To Other Analysts And The Confrontation Clause
  • United States v. Ayala, 601 F.3d 256 (4th Cir. April 8, 2010) (No. 09-2569) (In a violent gang activities trial, admitting expert opinion testimony on gang organization and use of violence, based on the witnesses' years of observation of gangs that included testimonial hearsay about gang activities; holding experts were not mere conduits of testimonial hearsay because they provided independent judgments and were subject to cross-examination); see also FRE 703 Use Of Testimonial Hearsay By Expert Witnesses Does Not Violate The Confrontation Clause
  • United States v. Turner, 591 F.3d 928 (7th Cir. 2010) (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 as circuit distinguishes Melendez-Diaz); see also Supervisor's Expert Testimony Did Not Violate Confrontation Clause By Describing Peer Review Process
  • United States v. Turcios-Lazo, 378 Fed.Appx. 341 (4th Cir. May 21, 2010) (No. 09-4358) (unpublished) (“Assuming, without deciding, that the district court’s admission of Saa’s testimony violated Fed. R. Evid. 703, and the Confrontation Clause, we conclude that any error was harmless in light of extensive testimony from actual MS-13 members about the gang’s structure, organization, rules, and punishments; the murders on which the Government relied to establish that MS-13 was an enterprise engaged in racketeering activities as well as MS-13’s involvement in drug dealing and extortion; and Turcios-Lazo’s participation in the conspiracy to murder Quintanilla.”)
  • United States v. Johnson, 587 F.3d 625 (4th Cir. 2009) (in drug conspiracy prosecution, law enforcement expert testimony concerning the use of code words in recorded conversations (which was based on experience and testimonial statements from interviews with informants, cooperators and witnesses) did not violate the Confrontation Clause since the experts “presented their independent assessments to the jury” and “did not become mere conduits for that hearsay”; “Crawford forbids the introduction of testimonial hearsay as evidence in itself,” but it does not “prevent [ ] expert witnesses from offering their independent judgments merely because those judgments were in some part informed by their exposure to otherwise inadmissible evidence.”); see also Fourth Circuit Reviews Interplay Between Confrontation Clause And Expert Reliance On Testimonial Statements Under FRE 703
  • United States v. Richardson, 537 F.3d 951 (8th Cir. 2008) (No. 07-2162) (there was no plain error under the Confrontation Clause in admitting testimony of a DNA expert who conducted a peer review of the DNA tests connecting the defendant to the charged weapon, but did not perform or observe any of the tests); see also Peer Review Expert Testimony And The Confrontation Clause (Part I) (Part II)
  • United States v. Law, 528 F.3d 888 (D.C. Cir. 2008) (per curiam) ("Crawford does not limit the admissibility of expert witness testimony," in drawing a distinction between expert testimony and "testimonial" hearsay statements); see also Expert Testimony Based On Hearsay Did Not Violate The Confrontation Clause

Noting The Need For Guidance

The lower courts have indicated that guidance would be welcome in this area. For example, the First Circuit recently observed that “[t]he Supreme Court's new slant on the Confrontation Clause is likely to be contested territory for some years, although the recent grant of certiorari in State v. Bullcoming, 226 P.3d 1 (N.M. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-10876), may lead to some clarification.” See United States v. McGhee, _ F.3d _ (1st Cir. Dec. 7, 2010) (No. 09-1322); see also In Reviewing Expert Chemist Testimony Referring To Non-Testifying Expert’s Lab Analysis, Distinguishing Melendez-Diaz.

The Issue In Bullcoming

In Bullcoming, the Supreme Court will consider the following issue presented:

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.
Whether or not the Supreme Court will provide guidance on the interplay between FRE 703 and the Confrontation Clause in the Bullcoming case remains to be seen. Until the Supreme Court provides further guidance, the reliance of testifying expert testimony on non-testifying expert analysis will continue to present a challenge in the lower courts.

For more information on the Bullcoming case, see Supreme Court Watch: New Confrontation Clause Case Added To Calendar Concerning Statements Of A Nontestifying Forensic Analyst.

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