At the Smith County DA's office, we're running across blood labs for tox screening that were sent to Pennsylvania. Anyone else having this issue?

I'm thinking that there is an easier way to have the tox information introduced at trial. I'm thinking that under Rule 703, I can call a toxicologist from Austin to testify as to the drug in the defendant's system. An expert's opinion can be completely based on inadmissible information (i.e. the tox report). There is no hearsay problem because the only information admitted is the expert's testimony. There is no Crawford issue because the expert is on the stand and the defendant can cross-examine him. Note, the tox report from PA would not be admitted at trial.

My argument is largely based on:
Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000)
Hamilton v. State, 300 S.W.3d 14 (Tex. App. San Antonio 2009)
Wood v. State, 299 S.W.3d 200, 213 (Tex. App. Austin 2009)
Martin v. State, 2009 Tex. App. LEXIS 6141, 20-21 (Tex. App. Fort Worth Aug. 6, 2009)
Martin v. State, 2009 Tex. App. LEXIS 6141 (Tex. App. Fort Worth Aug. 6, 2009)
WOOD v. STATE, 2008 TX App. Ct. Briefs 943904 (Tex. App. Austin Sept. 23, 2009)
United States v. Moon, 512 F.3d 359, 362 (7th Cir. Ind. 2008)
Camacho v. State, 2009 Tex. App. LEXIS 5975, 16-17 (Tex. App. Fort Worth July 30, 2009)

Does my reasoning sound correct? Additionally, has anyone else had this issue, and if so, how did you deal with it?

Thanks!

Chris

Will a Texas chemist be able to say that it is standard practice to rely on the work of an out-of-state lab to form an opinion on the presence of drugs? The Texas chemist can't just look at the report listing results and repeat that conclusion. The Texas chemist must see enough paperwork to know that the tests were run correctly and then form a separate opinion about the results.

In other words, the Texas chemist can't simply repeat the "statements" ("This is cocaine weighing x grams.") of the out-of-state chemist and mask the repetition by saying he is a chemist, too. The Texas chemist must be able to develop his own opinion, using and independently evaluating information collected by the out-of-state chemist, and the information must be of a nature that any reasonable expert chemist would be accepted as reaching a reliable opinion.

[This message was edited by JB on 03-09-10 at .]

[This message was edited by JB on 03-09-10 at .]

If you get the testimony into evidence, just how persuasive will it be to a jury? I expect defense counsel will be looking forward to the cross of the Texas chemist. Lots of lines of questioning come to mind.
I recently had a jury hangup using the testimony of the DPS lab Supervisor because the chemist who ran the sample was out on medical leave. (Judge denied motion to continue because the supervisor was available) The two not-guiltys told me they could not convict without hearing from the chemist who actually ran the tests.

That is certainly an important issue. You might consider addressing the issue during voir dire. You can't get a commitment, but perhaps you could discuss the law related to such testimony and see if any juror would refuse to convict on credible expert testimony simply because they wanted to hear from the testing expert.

It is this very issue that led me to tell a local lab that we would not accept cases for filing that relied on out of state lab results.

Argument

I. A TOXICOLOGY EXPERT FROM TEXAS IS PERMITTED TO BASE HIS OPINION TESTIMONY ON THE TOXICOLOGY REPORT FROM WILLOW GROVE, PENNSYLVANIA.

A. An expert may base his opinion testimony on wholly inadmissible information that is outside that expert�s personal knowledge, which includes reports created by other experts.


Texas courts agree that �[u]nder rule 703, an expert witness may base an opinion on facts or data that are not admissible in evidence, provided that the inadmissible facts or data are of a type reasonably relied on by experts in the particular field. Tex. R. Evid. 703 [emphasis added]. Under this rule, an expert may base an opinion solely on inadmissible hearsay. Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000); Aguilar v. State, 887 S.W.2d 27, 29 & n.8 (Tex. Crim. App. 1994).� Wood v. State, 299 S.W.3d 200, 212 (Tex. App. Austin 2009). Further, courts have noted, �[O]ne expert may testify as to his or her opinion based upon the findings of another expert.� Camacho v. State, 2009 Tex. App. LEXIS 5975, 16-17 (Tex. App. Fort Worth July 30, 2009).
In Blaylock v. State, 259 S.W. 3d 202, 205 (Tex. App. Texarkana 2008), �In testifying that the substance was cocaine, [the State�s expert] reviewed and used test results of the substance conducted by another chemist.� The court explicitly stated that the �Texas Court of Criminal Appeals has approved the admission of expert testimony based on test results that another has conducted. See Martinez v. State, 22 S.W.3d 504 (Tex. Crim. App. 2000); Aguilar v. State, 887 S.W.2d 27 (Tex. Crim. App. 1994).� Blaylock, at 207. Thus, the court recognized the long standing principle under Rule 703: an expert witness may provide opinion testimony based wholly on information that is inadmissible. Therefore, an expert may provide opinion testimony based on a report prepared by a non-testifying expert. Blaylock v. State, 259 S.W. 3d 202 (Tex. App. Texarkana 2008) and Camacho v. State, 2009 Tex. App. LEXIS 5975, 16-17 (Tex. App. Fort Worth July 30, 2009).

B. The opinion testimony by the Texas Expert will not run afoul of Crawford or Melendez-Diaz because no hearsay statement will be introduced at trial.

In Crawford v. Washington, 541 U.S. 36, 68 (2004), the Supreme Court held that the Confrontation Clause forbids the admission of testimonial hearsay unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. In Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2532-2533 (2009), the Supreme Court extended Crawford by holding that reports prepared by analysts at the state crime laboratory were testimonial statements and that the analyst who prepared the reports were witnesses for purposes of the Sixth Amendment. However, the Supreme Court has not restricted the ability of an expert to provide opinion testimony based on a lab report, which is prepared by another expert but not admitted at trial.
The Texas Court of Criminal Appeals has held that the in court testimony of an expert�based upon inadmissible evidence�is not hearsay. Aguilar v. State, 887 S.W.2d 27, 29 (Tex. Crim. App. 1994). The court in Aguilar stated, �it is clear under our rules of evidence that the present opinion of a testifying witness does not meet the definition of hearsay because it is not, and never can be, a statement �other than one made by the declarant while testifying at the trial or hearing[.]� Tex. R. Crim. Evid. 801(d). Even if the expert relies in whole or part upon information of which he has no personal knowledge, communicated to him at or before the time he testifies, the admissibility of his opinion is not affected�.� Aguilar v. State, 887 S.W.2d 27, 29 (Tex. Crim. App. 1994). In a more recent opinion, the Texas Court of Criminal Appeals agreed �that the present opinion of a testifying witness does not constitute hearsay because it is not, and can never be, a statement �other than one made by the declarant while testifying at the trial.�� Martinez v. State, 22 S.W.3d 504, 508 (Tex. Crim. App. 2000). Accordingly, the testimony by the Texas expert will not be hearsay, and the defendant�s Sixth Amendment right will not be in harm.
The court in Wood v. State, 299 S.W. 3d 200, 213 (Tex. App. Austin 2009), further explained the relationship between expert testimony and a defendant�s Sixth Amendment right to confrontation. In Wood, the testifying expert based his opinion on an inadmissible autopsy report prepared by an unavailable expert. The defendant objected to the testimony and argued that he �was denied the opportunity to confront and cross-examine [the unavailable expert].� Wood v. State, 299 S.W. 3d at 212. The court rejected the defendant�s argument and stated:

[T]he Confrontation Clause is not violated merely because an expert bases an opinion on inadmissible testimonial hearsay. The testifying expert's opinion is not hearsay, and the testifying expert is available for cross-examination regarding his opinion. Aguilar, 887 S.W.2d at 29; Blaylock, 259 S.W.3d at 206. The Confrontation Clause does not prohibit any use of testimonial hearsay; it only prohibits the [admission] of testimonial hearsay to prove the truth of the matter asserted. See Crawford, 541 U.S. at 59, n.9. When an expert bases an opinion on testimonial hearsay but does not disclose the testimonial hearsay on which that opinion is based, the jury hears only the expert's direct, in-court testimony.

Wood v. State, 299 S.W.3d 200, 213 (Tex. App. Austin 2009).

Accordingly, the court held �that the Confrontation Clause was not offended when [the testifying expert] testified to his own opinions regarding the nature and causes of [the victim�s] injuries and death, even though those opinions were based in part on [his] review of [the non-testifying expert�s] autopsy report.� Wood, at 213. Other courts support such a holding.
In Martin v. State, 2009 Tex. App. LEXIS 6141 (Tex. App. Fort Worth Aug. 6, 2009), the court also explained the relationship between expert testimony and a defendant�s Sixth Amendment right to confrontation. In Martin, a toxicologist�not the toxicologist who analyzed the blood sample and wrote the report�testified regarding the chain of custody of the defendant�s blood, the testing procedures, the results of each test, and the general effects that each substance found in the defendant�s blood would have on the human body. Martin, at 20-21. The toxicologist�s opinion testimony was wholly based on the report, which was not admitted as evidence. The defendant objected to the toxicologist�s testimony.
The reviewing court held that the toxicologist�s testimony was �not governed by Crawford because no out-of-court statement was admitted through her testimony.� Martin v. State, 2009 Tex. App. LEXIS 6141 (Tex. App. Fort Worth Aug. 6, 2009). The court stated that even though the toxicologist�s testimony was wholly based on inadmissible hearsay�which is permitted by Texas Rules of Evidence 703�the defendant�s Sixth Amendment rights were not implicated:

The Sixth Amendment concerns about out-of-court-statements at issue in Crawford, therefore, do not apply to Dr. Springfield's in-court testimony. See Camacho v. State, Nos. 2-07-322-CR, 2009 Tex. App. LEXIS 5975, 2009 WL 2356885, at *3 (Tex. App.--Fort Worth July 30, 2009, no pet. h.) (mem. op., not designated for publication) (holding that Sixth Amendment concerns at issue in Crawford did not apply to testimony that was chemist's in-court statement based upon her own personal knowledge acquired from having trained and worked at the DPS laboratory); Blaylock v. State, 259 S.W.3d 202, 207-08 (Tex. App.--Texarkana 2008, pet. ref'd) (holding that testimony of the expert witness concerning the chemical analysis of the substance, which was determined by applying his expertise to reliable scientific test data, was admissible as he was subject to cross-examination, so the requirements of the Confrontation Clause were fulfilled), cert. denied, 129 S. Ct. 2861, 174 L. Ed. 2d 601, 77 U.S.L.W. 3710 (U.S. June 29, 2009) (No. 08-8259). Thus, we hold that the trial court did not abuse its discretion by admitting Dr. Springfield's in-court testimony concerning analysis of the blood test results over Martin's Confrontation Clause objection.

Martin v. State, 2009 Tex. App. LEXIS 6141 (Tex. App. Fort Worth Aug. 6, 2009).

Additionally, the court in Blaylock v. State, 259 S.W 3d 202, 208 (Tex. App.--Texarkana 2008), held that �the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself.� In Blaylock, the State�s expert testified that the substance at issue was cocaine, and his testimony was based on the printed test results conducted by another chemist. Furthermore, the court held, �The testimony of this expert witness concerning the chemical analysis of the substance . . . was admissible as he was subject to cross-examination. We believe this fulfills the requirement of the Confrontation Clause.� Blaylock, at 208.

C. The information on which the Texas expert will gather an opinion is not testimonial under Crawford and may be admitted at trial.

Case Quotes:

In that case, the court held an expert witness could express his opinion, without violating the Confrontation Clause, as to whether alcohol and drugs were present in Washington's blood when he was arrested and charged with operating a motor vehicle under the influence of drugs or alcohol. Id. at 231. The court reasoned the raw data produced by the scientific instruments were not testimonial statements, as the data were in essence "statements" by the machine rather than the operator of the instrument. Id. The Confrontation Clause implicates statements made by persons, not machines. Id.; see Blaylock v. State, 259 S.W.3d 202, 205-08 (Tex. App.--Texarkana 2008, pet. ref'd) (holding Confrontation Clause not violated by testimony of chemist that substance was cocaine when opinion based on data and notes of analysis performed by different chemist), cert. denied, 129 S. Ct. 2861, 174 L. Ed. 2d 601 (2009). Accordingly, we hold Foster's opinion, based on data generated by scientific instruments operated by other scientists, did not violate the Confrontation Clause. Hamilton v. State, 300 S.W.3d 14 (Tex. App. San Antonio 2009)

A computer self-generated printout that does not represent the output of statements placed into the computer by out of court declarants is not hearsay. See Murray, 804 S.W.2d at 284 (concerning electronic door lock recording device); Burleson, 802 S.W.2d at 439-40 (involving computer [**4] generated display to show the number of records missing from payroll commission file). The computer printouts at issue in the Murray and Burleson cases were the results of an automatic recording device, much like the printout in this case. As in this case, the electronic recording device was activated automatically; it was not the result of the observations or reproduction of statements entered into the device by a declarant. See Murray, 804 S.W.2d at 284 (explaining computer stored data is hearsay whereas computer self-generated data is not); Burleson, 802 S.W.2d at 439-40 (equating computer generated evidence to a snapshot). Because there is no reliance upon human input, the determination that such computer self-generated data is not hearsay is in accord with rule 801. See Murray, 804 S.W.2d at 284 (explaining that a machine cannot be a declarant nor make statements). Ly v. State, 908 S.W.2d 598, 600 (Tex. App. Houston 1st Dist. 1995)

This distinction between computer stored [**15] data, which is clearly hearsay, and computer self-generated data, which . . . is not hearsay, is in accord with Rule 801, which requires that a statement by [sic] made by a person before it can fall within the definition of hearsay. Murray v. State, 804 S.W.2d 279, 284 (Tex. App. Fort Worth 1991)

In a related note, the lab in PA is offering to have the toxicologist appear by live video. We are considering it as a cost saving measure. Does anyone see a legal impediment to that, assuming that both the State and Defense agree?

Would the oath be administered by someone in PA, in TX, or both?

I would vote for TX as he appears in the Tx courtroom. I view this as akin to taking a deposition and presenting it in court. That is clearly allowable since the confrontation clause has been met. The difference is that it is live before the jury.

Melendez Diaz contemplated possible waiver of a Sixth Amendment challenge, and the CCA has been consistent that failure to raise such a challenge forfeits the claim. I don't see anything wrong with it if both sides agree.

Why not just record his testimony in advance? With live, you risk connection problems. What he has to say can't take all that long and can't really involve much in the way of controversy. For that matter, why can't it just be presented by a stipulation?

I agree it could probably be done ahead of time. However, both sides aren't agreeable to stipulating to his report, hence, the problem.

In the compilation above, the Hamilton case talks about the difference in computer stored data and computer generated data. From the quick explanation I received from the DPS lab, when blood is tested for alcohol level, an instrument does the test and prints out a result. Maybe that should be our focus, that the supervising expert can look at the results and give his opinion that the instrument was working and was used correctly, similar to how the breathalyzer is used.

My problem is, though, how is the number that shows it was over a .08 an opinion versus a fact? Isn't that saying that an expert could take any fact, and say that he agrees, and it therefore becomes an admissible opinion?

In an autopsy, an expert could use the facts of the wounds to determine an opinion on cause of death. But in this case, the opinion is what? The number is what I need, and that is not an opinion, that was the fact determined from the tests.

Article 24.28 allows us to subpoena witness from other states to testify in criminal cases. Article 35.27 says the State, not your local county, pays the bill for these witnesses to attend trial. Shouldn't we just bring the witnesses we need to try these cases? All the time we spend trying to figure out how to get around this problem could easily be saved just by getting the subpoena. Not to mention the time defending what you do on appeal and in a writ in federal court.

Attention DPS: Don't contract with out-of-state labs for this stuff. Bad idea. Fire whoever came up with the idea.

[This message was edited by JohnR on 03-19-10 at .]

or just have the sample re-tested at local lab...

Retesting was an option I thought about also, but when looking at alcohol concentration, the DPS lab told me that once the original seal is broken to be tested by them, after storage for the past 3 years, the numbers will not be accurate. This is not the same for DNA, but is their take on re-testing for foreign substances.

We'll probably end up flying the lab techs down from PA. Note that I said lab techs. Aparently 3 different people work on each sample.

However, what I'm 100% certain we can do is get a litigation kit from the lab and have a TX expert testify. The litigation kit contains the printouts from the machines (information that is provided by the machine independent of human action). An expert can then take this raw data and develop his opinion as to the level of alcohol in the defendant's blood. This raw data is NOT testimonial, which means there's no Crawford/Meledez-Diaz issue, and we have a hearsay exception that allows our expert to testify as to the level of alcohol in the defendant's blood.

Also, retesting is not an option. I've already found the actual blood sample and called DPS in Austin. They will NOT retest because it would open a flood gate and every DAs office that has these out of state labs would want DPS to retest. I should note that our situation invovles drugs in the blood, not alcohol. Why does the Great State of Texas only have one lab that can test for drugs (well, from my understanding)?

quote:

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Originally posted by cgatewood:
Also, retesting is not an option. I've already found the actual blood sample and called DPS in Austin. They will NOT retest because it would open a flood gate and every DAs office that has these out of state labs would want DPS to retest.

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Wait, what?

If DPS is aware that every DA will want retesting then perhaps it makes sense to rethink sending samples out of state in the first place.

If that many prosecuting attorneys will in fact agree that this is the best practice and in many cases what the law requires, and if DPS can indeed anticipate that, then perhaps instead of hiding from it or saving costs or time that isn't really saved due to the need for retesting, in state solutions should be pursued.

I'm disturbed by the idea that the DPS lab will refuse to retest and assert the flood gate argument.

To me that same logic would apply to testing at all. Why test blood evidence collected? Then every other DA will want their blood evidence tested too.

This makes no sense to me. What am I missing?