Tomorrow, members of the United States Supreme Court will meet in conference
and vote as to whether to hear a case that presents a much disputed Confrontation
Clause issue that arises repeatedly in criminal courtrooms across the
country. Essentially, the Confrontation Clause to the
Sixth Amendment to the United States Constitution provides that an individual on trial
for a crime must be able to confront the witnesses who the prosecutors
are using in their attempt to secure a guilty verdict. Since its landmark
Crawford v. Washington, ten years ago, the Supreme Court has repeatedly had to clarify the meaning
of the Sixth Amendment's Confrontation Clause guarantee, creating
new rules of law virtually every term since the opinion was announced.
One of the more notable developments in the body of Confrontation Clause
common law is the recent holdings of the United States Supreme Court that
when the prosecution introduces the conclusions of a forensic report,
the defendant has the right to confront the author of the report. This
seems fairly straightforward, however, prosecutors nationwide have adopted
a novel technique (the dubious "independent opinion") in order
to evade this constitutional requirement.
The case under consideration at tomorrow's conference precisely addresses
the question of whether prosecutors can circumvent established Supreme
Court Confrontation Clause precedent via the "independent opinion"
technique. In 2008, John Brewington was stopped by a Goldsboro, North
Carolina police officer for riding a bicycle with no reflective lights.
The officer then searched Brewington and found a tiny amount of an "offwhite
rock like substance, that he believed to be cocaine." The officer
arrested Brewington and sent the "rock like substance" to the
North Carolina State Bureau of Investigation (SBI) for analysis. There,
Assistant Supervisor Nancy Gregory performed testing to discern the nature
of the substance. Agent Gregory concluded in a written report that the
substance was "cocaine base weighing 0.1 gram." The report was
certified by Gregory's supervisor and "prepared for the purpose
of serving as evidence against [Brewington]." The State charged Brewington
with possession of controlled substance. At trial, the State did not call
Agent Gregory to the stand or introduce her report into evidence. Instead,
the State presented Agent Kathleen Schell, an employee of the laboratory
who "did not personally perform or observe any of the tests,"
or certify the tests that Agent Gregory conducted. Brewington objected
to Agent Schell testifying in this manner on confrontation clause grounds.
The trial court overruled Brewington's objection and allowed Agent
Schell to testify. At the conclusion of evidence and arguments, the jury
found Brewington guilty of possession of cocaine. The Supreme Court of
North Carolina affirmed the conviction.
The issue now before the United States Supreme Court is whether the Confrontation
Clause of the Sixth Amendment permits a forensic analyst who did not observe
or participate in any of the forensic testing at issue to tell the jury
the conclusions that another analyst set forth in a forensic report -
so long as the testifying analyst offers an "independent opinion"
that, based on reviewing the other analyst's report, he or she agrees
with the other analyst's opinion. If this is deemed constitutional,
the prosecution will be allowed to ess
entially offer the testimony of two forensic witnesses, but only one is
subject to cross examination. Worse yet, the one subject to cross examination
is not the one who did the actual testing, and has no idea if the testing
was accurately conveyed in the report. The testifying expert is entirely
at the mercy of the author of the report who may very well have made mistakes
when documenting the findings. Furthermore, allowing the testifying expert
to convey the non-testifying expert's findings to the jury insulates
the underlying methodology from attack. Such methods are precisely what
the Confrontation Clause is designed to prohibit.