In the most recent blog post, we talked about the Supreme Court case of Bullcoming v. New Mexico. In that DUI case, the Court ruled that if the lab analyst who performed the blood test did not testify, the lab report was not adimissible, even if another lab analyst testifies about how such tests are done.
The Court left undecided, however, a very important possible loophole for the prosecution. Justice Sotomayor filed a concurring opinion in which she noted that the lab report itself had been admitted into evidence. Rule 703, however, says that ordinarily an expert can base his or her expert opinion on materials that are not themselves admissible; it also says that if the other side claims that the expert has no basis for his or her opinion, those materials may become admissible. Justice Sotomayor pointed out that since this procedure was not used in the Bullcoming case, its constitutionality remains undecided.
This is especially important for a Phoenix Criminal Defense Lawyer, because this is the approach the Arizona Supreme Court has used to make an end run around the Supreme Court's recent Confrontation Clause cases. For instance, suppose in a
DUI case the prosecutor calls a lab tech other than the tech who performed the blood test. That lab tech says that in his opinion the defendant had a BAC above the legal limit. When cross-examined regarding the basis of his opinion, the tech states that his opinion is based upon the facts stated in the police report, and the blood test the other tech performed. The Arizona Supreme Court has said that such a procedure does not violate the defendant's right to cross examination--unless the lab tech's testimony is used as a "mere conduit" for admitting the lab test result. Whatever that means.
But help is on the way. Maybe. Earlier this week, the U.S. Supreme Court agreed to look at a case just like this, out of Illinois. The case is called People v. Williams, 238 Ill.2d 125, 939 N.E.2d 268 (2010). In
Williams, the defendant was convicted of a
sex crime (rape) based upon DNA evidence; at trial, the prosecution expert from the state crime lab testified that DNA from Mr. Williams' blood matched DNA taken from the semen found in the victim's vagina. The semen, however, had not been tested by the prosecution's expert. It had not even been tested by the state crime lab. It had been tested by a commercial lab in Maryland called Cellmark. But when the defense attorney objected that this violated the Confrontation Clause, the objection was overruled and the expert's testimony was admitted.
Arizona's Supreme Court has issued similar rulings. But the issue is now on its way to determination by the U.S. Supreme Court. How they will rule is unclear at this point. Justices Scalia and Ginsburg are sure to vote for the defendant. Chief Justice Roberts, along with Justices Kennedy, Alito and Bryer, will likely vote for the prosecution. That leaves Justices Sotomayor, Kagan, and Thomas in the middle. Their prior votes on the Confrontation Clause have not been entirely consistent, but most recently they voted for the defense.
So we shall see. In the meantime, all defense lawyers should object on the basis of the Confrontation Clause of the 6th Amendment whenever they are confronted with an expert who wants to testify regarding a lab test that someone else performed.