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In short, the appeals court found that although the testifying technician was also an expert in the field, her expert opinion as to the nature of the white powder is only as reliable as the data and information that was measured and observed by the absent assistant supervisor. By offering the expert opinion testimony of another technician using the data collected and measured by absent technician, the prosecution essentially contravened the Confrontation Clause by not allowing the defendant an opportunity to cross-examine the absent assistant supervisor on her methods and practices in collecting the data that both she and the testifying technician relied on.

The bottom line, according to the appeals court, was that the testifying technician was not herself involved in any of the testing leading to the accumulation of the data that her testimony relied on; nor did she conduct her own analysis of the powder. It seems that the North Carolina Supreme Court ruled incorrectly in direct opposition to prior case law.

Confrontation Clause - Wikipedia

The case law, although unclear, is consistent in holding that surrogate expert testimony is not admissible if the defendant has not had a prior opportunity to cross examine the original technician. In Yohe , the defendant was pulled over for broken tail lights and was arrested for an OUI and subsequently provided blood samples for analysis. The lab results from each analysis were delivered to the assistant lab director, who reviewed the procedures and results of each lab analyst, and found the two results to be consistent and conclusory in verifying the blood alcohol level of the defendant to be above the statutory limit.

The lab director then issued his electronic signature of approval on one of the lab reports. The lab director also admitted, however, that he did not personally handle, observe, or perform the test leading to the results relied on by the prosecution. Yohe presents an interesting set of facts that merges the circumstances discussed in both Brewington and Galloway as described above:. Another petition addressing the right of confrontation is James v. United States , which considers whether pathology reports are testimonial under the confrontation clause.


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The petition for certiorari filed by the defendant reveals the split amount lower courts in determining whether pathology reports are testimonial. The petition outlined the different approaches being taken by courts. In James , the defendant was charged with conspiracy to commit murder to obtain life insurance benefits.


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The prosecution sought to establish that the victim died of ammonia poisoning. The prosecution called a medical expert to testify to both the contents of a toxiocology report and an autopsy report. The defendant objected to the introduction of the toxiocology report without the opportunity to confront the maker of the report in court and subject the author to cross examination. The Court held that autopsy reports are not testimonial and that the toxicology report was an integral part of the autopsy report. The medical expert then testified to the cause of death based on his reading of the toxicology and autopsy reports.

Justice Anthony M. The court returned to the question this year in Bullcoming v. New Mexico. Bullcoming was convicted of driving while intoxicated, but the laboratory analyst who did the blood testing and prepared the report as to his blood alcohol level was on unpaid leave and did not testify. The Supreme Court ruled, again , that this violated the Confrontation Clause. Souter, both now retired, in the majority. Roberts and Justices Kennedy, Samuel A.

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Alito, and Stephen G. Breyer were in dissent. If either Justice Sonia Sotomayor or Kagan had joined the dissenters, there would have been five votes to overrule or at least narrow Melendez-Diaz. But both of the new justices joined the majority in Bullcoming. Once more in Bullcoming , Kennedy wrote for the dissenters and strongly objected to the requirement that the person who did the laboratory analysis must be present to testify. Most of all, the dissent again was concerned that guilty defendants would go free just because the lab analyst was not present to testify.

The issue raised by the dissent is an important one that constantly arises: what if the analyst is unavailable? Is there any way to get the lab report before the jury? In Bullcoming , Ginsburg, in a part of the opinion joined only by Scalia, suggested alternatives, including that labs retain samples and have new analysts retest them.

Sotomayor wrote a concurring opinion in which she laid out alternatives that might be used when the analyst is unavailable. She explained that this was not a case where the laboratory report was prepared for a purpose other than testimony in court, such as a medical report.

10th Circuit Court Finds that Anonymous Witnesses Do Not Violate Confrontation Clause

Nor, she said, was this a case in which the person testifying was a supervisor or reviewer with a personal, though limited, connection to the scientific test at issue. Some hearsay statements are sufficiently reliable so that adversarial testing is not required," says John Michael Jones, senior deputy prosecuting attorney, in his brief to the court. US Solicitor General Theodore Olson is also urging the justices to reject a bright-line constitutional rule. In the Crawford case, the central issue is whether Crawford's wife, Sylvia, could be used as a key "witness" for the prosecution at his trial.

Prosecutors are barred from forcing a wife or husband to testify against a spouse, so they were unable to compel her to physically testify in court.

Confrontation Clause

Instead, they presented her "testimony" to the jury by introducing into evidence a transcript and tape recording of a statement she had made to police shortly after the stabbing. Like Raleigh, Crawford and his attorneys were unable to cross-examine a transcript or tape recording. Crawford's statement helped convict her husband. On appeal, his lawyers argued that the introduction at trial of his wife's statement violated his Sixth Amendment right to confront witnesses against him.

The Washington Supreme Court ruled that because Mrs.

Crawford's statement was very similar to a statement given to police by Mr. Whether the high court is prepared to embrace a bright-line approach to the confrontation clause is unclear. Three justices, Stephen Breyer, Antonin Scalia, and Clarence Thomas, have suggested in written comments in earlier cases that they might support a categorical approach.

But in , the last time the court took up a similar case, the justices produced a highly splintered decision. Yet since then, they have issued two key Sixth Amendment opinions that may have opened the way for a major ruling in the current case. In both earlier cases, the court acted to restore to juries certain functions that had been assigned by lawmakers to judges. If a majority of justices view the Crawford case in similar terms, the decision could be one for the history books. Richard Friedman, a professor at the University of Michigan Law School and a confrontation-clause expert, is hopeful.

He says, "There is nothing in the [Constitution's] text that talks about hearsay, or reliability, or exceptions to the principle.