The United States Supreme Court in Turner v. U.S. may soon decide on the constitutionality of admitting surrogate expert testimony against a defendant in a drug federal drug case. Massachusetts criminal defense attorneys should expect this decision to clarify earlier Supreme Court precedent in Williams v. Illinois on the question of whether the Confrontation Clause bars expert testimony by a lab supervisor premised on a lower analyst’s findings.
After successfully petitioning the Supreme Court on a related issue, Turner has filed another appeal before the Court alleging violation of his constitutional right of confrontation. Turner was charged and convicted of distributing crack cocaine, a federal offense (21 U.S.C. sec.841(a)(1)). During the jury trial, the trial judge allowed the federal prosecutor to call an expert witness who supervised a state crime lab where certain substances seized during Turner’s arrest were analyzed. At the crime lab, a lower ranking lab analyst allegedly conducted the required analysis and issued a one-page report concluding that the seized substances had traces of crack cocaine. During the lab analysis, the lab supervisor conducted a peer review of the results and signed off on the report.
At the time of the trial, the lower analyst that conducted the actual analysis was on maternity leave, and so was not unable to testify. This analyst did, however, leave behind several hand-written notes created during the process. At the request of the federal prosecutor, the trial judge allowed the lab supervisor to testify in the analyst’s place with the understanding that the lab supervisor would rely only on his own findings and conclusions. Turner objected heavily to the court’s admission of the supervisor testimony because the supervisor frequently mentioned the written notes and conclusions of the lower analyst. More specifically, the supervisor testified that he relied on the notes and findings of the lower analyst in forming his opinion, and that he agreed with the analyst that the seized substances was cocaine-based.
At its core, Turner’s appeal asserts a confrontation clause violation because the supervisor’s testimony was premised on a scientific analysis conducted by another analyst. Because the supervisor relied on the work of another analyst without having any direct knowledge of that analyst’s procedures or methods, Turner was deprived of his constitutional right to confront the actual analyst who conducted the analysis that implicated Turner in the federal crime. Since the analyst was on maternity leave, and the supervisor had not directly participated in the analysis, Turner did not have an opportunity to question the validity or accuracy of the analyst’s incriminating findings.
The Supreme Court’s opinion in this case will hopefully resolve the widespread confusion that resulted from the Court’s earlier decisions on the admissibility of surrogate expert testimony. Only a couple years ago, the Supreme Court held in Bullcoming v. New Mexico a surrogate lab analyst’s testimony was inadmissible in a DUI prosecution. But in its decision in the rape prosecution of Williams v. Illinois, the Court allowed an expert witness to testify that the results of semen sample analysis in an out-of-state lab matched the DNA profile of the defendant created by the state’s police lab. The plurality in this case held that expert witnesses can rely on facts they do not have direct firsthand knowledge of when forming their opinions. Furthermore, the majority in Bullcoming suggested that the lab results of the absent lab analyst may be admissible if offered by the absent analyst’s supervisor, rather than a surrogate lower level analyst.
Regardless of how the Court decides Turner, the Court’s decision will undoubtedly have a substantial impact on future expert testimony. In criminal trials, prosecutors heavily rely on experts to link defendants to a crime, and so expert testimony can often be the most devastating evidence against a defendant. The Turner decision will hopefully resolve any confusion on the admissibility of expert testimony, and may restrain prosecutors presenting their case against a defendant without establishing sufficient foundation.