Look for an article in the next Texas Prosecutor on the impact of Melendez-Diaz in Texas, including the ME subject that Scott just mentioned!

After issuing the opinion in Long v. State, the 11th CoA withdrew and reissued based on Melendez-Diaz. See new opinion 11-07-00319-CR issued 8/20/2009 (conviction affirmed - no harm). I just don't think it fits the crux of the S Ct opinion. This was a murder case where the hospital drew the victim's blood and later it was tested for drugs and alcohol. Eventually it was included with the autopsy report although the ME did not do the blood draw or test (negative for both alcohol and drugs). This is such a far-fetched collateral matter because Long went into the house and accused everyone there of stealing his scales used for his drug business. Long begins confrontational actions with another in the house, has gun, so victim runs to back of house and Long shoots. My reading of Melendez-Diaz seems to suggest the the test in question must be directly related to the offense. What do you think - is this stretching the S Ct decision too far?

A California Court of Appeals has issued an opinion on this subject that does a good job of explaining why an expert who didn't do the test can testify without violating the 6th Amendment. For the opinion, click here.

... when we turn to a California court decision for support.

See Cuadros-Fernandez for harm analysis and reversal of capital murder conviction. Keeping all of the original analysts available for testimony can be a problem, yet rarely will confrontation change the nature or effect of their testimony.

[This message was edited by Martin Peterson on 09-02-09 at .]

So all eyes were on Sotomayor on Monday as the court considered two drug convictions based on affidavits from crime lab analysts as to what the substance was that was found on or near the defendants. Sotomayor did not disappoint, asking lots of questions. But at the end of the day, she was noncommittal.

Details.

What is the bottom line today? I have trial coming up and have no certificate of analysis on file. The chemist who performed the drug analysist has retired. The lab tells me the supervisor has been testifying in his place. Am I OK with the lab supervisor or do I need to find the retired chemist??

If you want to use a substitute chemist, you can try it two ways:

(1) have the substitute chemist re-test; or
(2) have the substitute chemist review the paperwork from the previous test and be prepared to offer an expert opinion, based on that work.

What the substitute can't do is simply show up and say, hey, this stuff was tested by one of our guys and that guy said it was ___. That is just repeating someone else's opinion. You also can't just mark and offer the lab results. That's the sort of hearsay that is objectionable, even before Melendez-Diaz and Crawford.

But, any expert may rely upon information that is typical in the field to form an opinion.

Of course, you also could track down the retired chemist.

Thanks JB. I think I will try to find the retired chemist. Probably the best way to lessen chances of having to write a brief later on. If I cannot find him I will go with your second suggestion since the lab is always backlogged.

Let us know how it goes down.

My chemist will be out on medical leave on my trial date.

My first question is this: the crime lab tells me that they have started a reviewing procedure to address this exact issue. So what hurdles would I face to the reviewer testifying to the procedures in the lab? I realize they could say the analyst did it correctly, but that wouldn't actually get the number in, would it? My chemist says the McAllen lab has done this quite a bit in Cameron county and some other places. Any issues that have come up with those of you who have successfully or unsuccesfully gone this route?

Second question: Lab is telling law enforcement that re-testing is problematic because it could drastically change the blood alcohol level. Does the alcohol dissipate over time? If so, how much time? This is a new one for me, so thought maybe someone else had dealt with it. This case is 4 years old, so even though it's old, I thought it would be retestable.

[This message was edited by suzannejost on 03-08-10 at .]

these cases talk about the 6th amendment right to cross examine. Has anyone had an issue where the witness was not available on trial day, but came earlier, thus giving the defense an opportunity to cross x? And if so, then how does carry over to the jury? Does it get video recorded, played for the jury, and then the certificate of analysis and report come in, because the defense has now had the opportunity to cross examine the witness?

Sounds like a deposition.

Yes, that's what I was afraid of, and I don't really have any of the facts necessary to excuse the taking of a deposition.

Let me bring this back up to the forefront. I've got an old capital murder of a child going to trial next month. Autopsy was preformed at SWIFS in December 2003. Original ME was still in probation period (or something like that, he was listed as "pathologist") and was under direct supervision of another, who will be my expert at trial. Obviously, supervisor didn't stand over ME the whole time, but assuming she checked in, reviewed photographs, etc, what then?


Autopsy report was signed by "probationer" and supervisor (as well as every other me there).

Does any of this make a difference, or am I stuck with "expert opinion based on review of the records"?

Additionally any thoughts on Martinez v. State 311 S.W.3d 104, which at first glance seems to say expert cannot reveal basis of opinion, not even for limited purpose?

It is legally possible at this point. See new edition of Predicate Manual for a discussion of that issue and the latest case cites. Bottom line: the issue will likely have to go back to the CCA or SCOTUS for us to know for sure.

The defendant whose case has stirred so much was acquitted upon retrial. Apparently, the acquittal had nothing to do with the lab analysis, but was instead related to whether or not he was what we would consider to be a "party" to the offense. Here's a link to a story on the Crime and Consequences blog: link

Retrying a drug case 10 years after the crime is no picnic. But, the last line of the story lets us know the defendant is already serving time on another drug case (that likely came up after his SCOTUS reversal). One step forward...