The transcript for Bullcoming, argued this week, is available here:

http://www.supremecourt.gov/oral_arguments/argument_transcripts/09-10876.pdf

This case follows on the heals of Melendez-Diaz. Scalia attempts some shoring up of his position on the Confrontation clause after his "loss" in Michigan v. Bryant issued this week.

They never seem to get around to talking about whether a 2nd chemist who reviews the actual work (raw data) of the 1st chemist can become an independent expert. Not just repeating the conclusions of the 1st chemist, but forming separate conclusions based on the sort of data that a chemist would normally rely upon to reach that conclusion. Sotomayor tries to reach that issue but, like so many SCOTUS arguments, they wander off into other stuff before anyone finishes a thought.

Why can't it be like how a doctor could look at a medical chart and form a conclusion that someone has a particular disease. He didn't have to conduct the actual examination. No one questions that a doctor could do that.

[This message was edited by JB on 03-03-11 at .]

I guess that would depend on whether the chart or report or whatever was actually testimonial. Assuming it was (like in Melendez-Diaz) I don't see how an unrelated expert could testify about the conclusions made by another (non-testifying) expert without violating the Confrontation Clause.

What makes Bullcoming a closer case is that the substitute witness actually works in the same place so he could testify about lab procedures, etc.

As far as the second-doctor-testifying-about-a-chart hypothetical is concerned, I wonder how far one could take that. I mean, you wouldn't be able to put an officer on the stand to testify that, "I reviewed the victim's statement and came to the conclusion that the defendant committed the crime." (Assuming, of course, that the point to the testimony is to prove the truth of the non-testifying victim's statement)

Jimbeaux, maybe not exactly, but in a DWI you could lput a good testifier officer expert to look at officer's report and reiterate that with those facts considered in teh totality of the circumstances, it's reasonable that the officer making the arrest found probable cause.

I think that only works under a regime where the Confrontation Clause doesn't apply at a probable cause hearing. And I think our courts are split on that, although to be honest, I haven't checked it in a while.

But, of course, that wasn't my example. I was talking about a trial on the merits. To tweak your example, I don't think you could have an "expert" officer look at the (non-testifying) arresting officer's report and testify at trial that the defendant failed his FSTs and that in the arresting officer's opinion, the defendant was intoxicated. I think that would be problematic.

There is a big difference between a chemist and a cop. The chemist has expert training in a field that can look at accumulated data and come to a professional opinion. The officer generally must have seen something himself to be able to offer testimony in court.

The expert witness rules of evidence anticipate that an expert will rely on data that might otherwise be inadmissible, including charts and readouts from equipment.

The real question is whether an expert who arrives at an opinion from reviewing such data is expressing an original opinion that is subject to cross examination or merely repeating the opinion of another expert.

The expert who looks at accumulated data and comes to a conclusion is reaching his own conclusion. The problem is where you actually admit the statement of the non-testifying expert -- where that statement expresses a conclusion. But that was covered in Melendez-Diaz.