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A Tale of Two Circuits

Imagine the following facts – a man is accused of a crime. The government introduces testimony from a scientist about testing of an item recovered by the police.

The scientist isn’t the one who tested the evidence – he works in the same lab as the woman who did the tests. The scientist has read the lab reports from the woman who did the tests. He testifies that the item is what the government says it is. Moreover, because he knows how chain-of-custody is handled in his office, he testifies that the item that was tested is the same one that was taken off the person accused of a crime.

1314903_medical_doctor.jpgThe defendant never has a chance to cross-examine the person who actually tested the item – the results of the test come into evidence through the testimony of the person who just read the reports of the testing.

Is that ok?

The Confrontation Clause

The Sixth Amendment says that “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

Recent Supreme Court cases – notably Crawford v. Washington, Melendez-Diaz v. Massachusetts, and Bullcoming v. New Mexico – have construed the Sixth Amendment to mean that if a person is offering “testimonial” evidence against another person in a criminal trial, that person has to appear at trial and be cross-examined.

Exactly what “testimonial” means is being worked out, but it’s something like “evidence that was prepared with litigation in mind.”

So, for our hypothetical above, the scientist’s testimony is testimonial.[FN1]

So, under recent Confrontation Clause jurisprudence, is the scientist’s testimony consistent with the Confrontation Clause?

The answer – it depends on whether the trial took place in the First Circuit or the Fourth Circuit.

The First Circuit

The First Circuit recently decided United States v. Ramos-Gonzalez. In that opinion, the court held that such testimony would not be permissible – the court of appeals held that,

Where an expert witness employs her training and experience to forge an independent conclusion, albeit on the basis of inadmissible evidence, the likelihood of a Sixth Amendment infraction is minimal. Where an expert acts merely as a well-credentialed conduit for testimonial hearsay, however, the cases hold that her testimony violates a criminal defendant’s right to confrontation. In this case, we need not wade too deeply into the thicket, because the testimony at issue here does not reside in the middle ground. [internal citations omitted]

The scientist’s report in the First Circuit is merely reciting what the other person in the lab did. It is, therefore, merely a blanket repeating of the other person’s work.

The First Circuit then reversed and remanded Mr. Ramos-Gonzales’ conviction.

The Fourth Circuit

In United States v. Summers, though, the Fourth Circuit took a different approach.

There, because the expert talked about how to interpret the data compiled by the unavailable person who did the testing, the Fourth Circuit found that the evidence passed constitutional muster.

The Lesson

The lesson in all of this? If you are a prosecutor, you have a better chance of maintaining a conviction on appeal if you have your expert talk about something in addition to the report, after mentioning the results of another scientist’s testing.

[FN1] – depending on the kind of equipment that’s used in the testing, you could see an argument that it isn’t. Right now, let’s leave that aside – assume that the evidence is testimonial.

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