We have an intoxication manslaughter case coming up in which the DPS chemist who did the blood alcohol test will be unavailable. We can have his supervisor testify at trial as to the tests done, procedures, and the results. Can I just have the supervisor testify, or do I need to try and get a deposition with the chemist who actually did the test?

Deposition would be better if you meet the criteria. Remember, too, that you can subpoena people from other states pursuant to Article 24.28--just allow yourself sufficient lead time to get it done.

John, there's a lot of pretty good case law out there that addresses the issue of having a supervisor/expert testify and render an opinion based upon the testing and/or report of a subordinate in light of Crawford. The reasoning seems to be that the testifying witness, an expert in his or her own right, is rendering an opinion (about whether a substance is a drug, a cause of death, that DNA matches a defendant) based upon his or her review of the underlying testing data and not simply reading from a report prepared by someone else. Several cases have used this rationale to reject the Crawford issue in these types of cases. (Mitchell, 191 S.W.3d 219; Blaylock, 259 S.W. 3d 202; Campos, 256 S.W.3d 757; Larkin, 2009 WL 2049991; Pierce, 234 S.W.3d 265)

This seems to make a bunch of sense to me. Does Melendez really mean that we can never put a supervisor on when the person who tested the substance (blood, drug, DNA) is no longer available? I think Melendez is easily distinguishable because it involved the introduction of affidavits prepared for the purpose of trial and did not involve actual testimony at trial.

What do you think?

Can someone retest and testify?

We looked into that. They can retest and have a result before the trial starts, but we have been told by the lab supervisor that doing so is not such a great idea. The result will be less thant the original test, almost certainly causing problems at trial.

After researching it, I feel pretty good about putting on the supervisor as an expert who will testify as to his own opinion based on his review of the testing data relied upon by the original chemist. Do you have concerns about this approach, John?

Shane. That approach has worked with us, however, do not introduce the lab report as evidence. The supervisor can refer to it, but not have it introduced.

Thanks, Bob. I caught that in one of the cases I reviewed. Interestingly, though, it looks like introducing an autopsy report would be okay as it is a public record and non-testimonial.

I wonder just how far we can go with the expert opinion approach. If it is still viable, will it cover everything we must prove?

We have the out-of-state subpoena statute, and the State budgets money for out-of-state witness travel. We also have the deposition statute that the State has been able to use since 2005.

The easiest case to win is the one you don't have to fight.

I think your plan is fine, Shane.

Here's a recent California case addressing these issues. People v. Milner, No. B206735, 2009 WL 2025944 (Cal.App. 2 Dist. Jul 14, 2009) (not published)

First, they held that Thomas' concurrence marks the limits of the controlling holding in Melendez-Diaz. Id. at *9 ("the lead opinion speaks for the court only on the narrow basis set forth in Justice Thomas's concurring opinion- "that 'the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.' " (Ibid., conc.opn.Thomas, J.)").

Second, they held that Melendez-Diaz didn't address whether an expert could rely upon another expert's work. Id. at *9 ("As the dissenting opinion explained, the lead opinion left open the potentially vexing questions of whether every analyst or technician participating in the ultimate scientific findings must be made subject to cross-examination, or whether live testimony by a supervising analyst will suffice. [FN12] (Id. at pp. ___-___ [2009 WL 1789468 at pp. *15-*16], dis. opn. Kennedy, J.)").

I've got a DNA guy with DPS who worked one of my cases which is going to trial and who has since taken a job in South Dakota. Just thought I would check in and get any last minute feelings about which way to go since I'm at the point that I have to either get the guy out of SD or use his supervisor at trial or something else. Any updated thoughts would be appreciated.

Play it safe and get him back.

Be sure to look at this case, Cuadros-Fernandez. Martin Peterson posted a blurb about it in another thread here. A DNA report violated Crawford where the testifying expert could not testify that the testing was performed properly, though she was present when testing was performed.

You can also look at Hamilton v. State, No. 04-08-00206-CR, 2009 WL 2762487 (Tex. App.--San Antonio Aug. 31, 2009). There, the State used a supervisor under the "expert" theory, but the court still found a partial error. The opinion is unclear as to what testimony from the supervisor was ok and what caused the error. The prudent course is to get the analyst back if he is still alive.

We are going to re-try Cuadros-Fernandez.

Oh, and watch out for your lab people just trying to send whomever. They don't get Melendez-Diaz--"but our reports aren't affidavits . . ."

Any Texas cases limiting the holding of Melendez-Diaz to Thomas's concurrence?

Do you think his concurrence will really limit it? After all, solid majorities in other cases have found non-affidavit statements to be testimonial.

I just asked because that's the theory floated in the California case mentioned either above or in the other thread. I can't remember.

File a CCP Art. 38.41 affidavit and hope there is no objection?