The Supreme Court says that the lab analyst who testifies at a criminal trial must be the one who performed or witnessed the lab tests in question, the latest decision bolstering the constitutional requirement that defendants be able to confront witnesses against them...

http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

Here is the key, unresolved, issue, as set out in Sotomayor's concurring opinion:

Third, this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert's opinion based on the facts and data to be admitted). As the Court notes, ante, at 12, the State does not assert that Razatos offered an independent, expert opinion about Bullcoming's blood alcohol concentration. Rather, the State explains, "[a]side from reading a report that was introduced as an exhibit, Mr. Razatos offered no opinion about Petitioner's blood alcohol content . . . ." Brief for Respondent 58, n. 15 (citation omitted). Here the State offered the BAC report, including Caylor's testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence.

It could have been so much worse! As soon as the opinion's author became known, we were up against it. But not the bull coming that some might have feared.

[This message was edited by John A. Stride on 06-23-11 at .]

The case really doesn't say anything new. And it clearly (based on the concurring opinion) leaves open several options for the State.

Defense counsel at the trial level was my niece - been trying to lure her from filthy lucre to the side of truth and right for nearly 15 years. She's a state public defender in the Four Corners area. Their office farms appeallate work out, so she wasn't involved in that - but, much as I hate to say - it was a pretty neat piece of lawyering at the trial level!

Lisa L. Peterson
Nolan County Attorney

The State didn't help itself with the facts.

First, surprising the defense at trial with a new lab person is not a good idea.

Second, leaving the new lab person in the dark about why the original lab person is absent is not a good idea.

Third, failing to prepare the new lab person for being qualified as a person with an independent opinion is not a good idea.

Fourth, retesting the sample would be a really good idea (and is likely to happen on retrial).

Nonetheless, the defense counsel did do a good job of raising the proper objection to preserve the case for SCOTUS review.

Here is the case that would come out differently:

Defendant is accused of murder. Trace DNA connects D to victim. Tests are done perfectly and documented. But lab technician dies before trial. Insufficient material remains for retesting. Supervisor is brought in as expert to testify, reviews lab work, notes and so on, and offers an independent opinion, consistent with the Rules of Evidence for experts, that DNA matches D. D makes Crawford objection. Outcome?

Anyone favor New Mexico's offense of "aggravated DWI" for BACs higher than 0.16?

Didn't our Leg just pass enhancement of Class B DWI to Class A for .15 or higher? That should make for a fun sufficiency of evidence review when applying retrograde extrapolation to a punishment issue.

Indeed, it did. TPC sec 49.04(c). One of the important changes that will be explained at the multiple TDCAA legislative updates this summer.

[This message was edited by John A. Stride on 06-23-11 at .]

quote:

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Originally posted by JB:
That should make for a fun sufficiency of evidence review when applying retrograde extrapolation to a punishment issue.

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No extrapolation needed--the enhancement is based on the BAC at the time of testing. Which, of course, is a different standard that the one necessary to establish intoxication itself. But consistency is so ... boring. Legislators aren't prisoners to convention--simplicity be damned!

So, in theory, the defendant could be a .12 at time of driving and a .15 at time of testing and be subject to enhancement. Weird stuff.

[This message was edited by JB on 06-23-11 at .]

That language is no accident. I made it clear that phrasing it any other way would make it unenforceable.

It makes sense. Just wish the same approach applied to proving level of intoxication for the crime itself (assuming sample was provided within reasonable time after driving).

Today, the SCOTUS finished for the term without any new criminal opinions of import. Within the next few weeks, the Court of Criminal Appeals will also cease to issue opinions for this term. Meanwhile, the courts of appeal--and the trial courts--will carry on as usual throughout the heat.

How is it that only the high courts get to enjoy a hiatus over the summer? Anyone know? Is it simply the privilege of rank?

All that thinking. They need a break.

Sotomayor sought to show that the [Bullcoming] decision was a narrow one, and listed several factual scenarios that she said were not covered. One of them was a situation in which "an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." The Court apparently granted the Williams case on Tuesday to judge that very situation.

Details.

From the state court opinion in Williams:

We find that Melendez-Diaz does not change our determination. In Melendez-Diaz, the disputed evidence was a "bare-bones statement" that the substance was cocaine, and the defendant "did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed." Melendez-Diaz, 557 U.S. at ----, 174 L.Ed.2d at 327, 129 S.Ct. at 2537. Here, Lambatos testified about her own expertise, judgment, and skill at interpretation of the specific alleles at the 13 loci, and confirmed her general knowledge of the protocols and procedures of Cellmark. Lambatos also conducted her own statistical analysis of the DNA match. She did not simply read to the judge, sitting as a fact finder, from Cellmark's report. This is in contrast to Cellmark's report, which did not include any comparative analysis of the electropherograms or DNA profiles and was not introduced into evidence. Cellmark's electropherogram, rather, was part of the process used by Lambatos in rendering her opinion concluding that the profiles matched. Thus, Lambatos' opinion is categorically different from the certificate in Melendez-Diaz.

Full Williams opinion.

Sounds like the game is on.

[This message was edited by JB on 06-28-11 at .]

[This message was edited by JB on 06-28-11 at .]

Much of the SCOTUS opinion in Bullcoming focused on whether requiring lab techs to show up in court would be much of a burden. Turns out it really is in New Mexico:

A recent U.S. Supreme Court decision on a case that originated in Farmington might require state officials to dip deeper into their pocketbooks.

...

Though the decision bolstered the constitutional tenet that defendants have the right to confront witnesses against them, it also added pressure on an already overburdened lab.

Details.

I'm not sure how relevant this is as it happened in a Military Trial I was consulting on, but they do have to follow Supreme Court Rulings. They are certainly a different breed of trial.

The prosecution did not enter the multiple lab reports and testing into evidence. Instead, they relied on a different DNA analyst who separately evaluated the DNA electronic profiles and the DNA evidence alone was entered as evidence with the "new" analyst testifying to his findings.

We argued that the "House of DNA is built on the foundation of the previous testing" to no avail.

This allowed the prosecution to enter the evidence and avoid an otherwise unavailable scientist and also to avoid any questions about other lab testing.

Brilliant strategy if it works, in this case it did.

Dr. Monte Miller
mmiller@forensicdnaexperts.com
www.forensicdnaexperts.com