Sixth Amendment case involving surrogate expert testimony may be heard by the United States Supreme Court

The United States Supreme Court is currently considering to hear another appeal that addresses the issue of whether surrogate expert testimony violates the Sixth Amendment Confrontation Clause. The appeal, titled Turner v. United States, was filed after a defendant was indicted and convicted in a federal drug distribution case on three counts. If the Court chooses to hear this appeal, the Justices may finally provide much needed direction and clarification following the Court’s problematic 2012 opinion in Williams v. Illinois.

Turner was indicted by a federal grand jury after he sold a mixture containing crack cocaine to an undercover police officer on three different occasions. Samples of the mixture obtained by the police officer from Turner were sent to the Wisconsin State Crime Lab, where an analyst issued a report identifying Turner and confirming the presence of crack cocaine in the mixture. The government initially notified Turner that the analyst would be called to testify to her findings on the compound, but then the government informed Turner that the analyst’s supervisor would testify in her place as the analyst was on maternity leave. This second notice came after the court’s deadline for expert witness discovery.

During trial, Turner’s counsel objected to admission of the supervisor’s testimony on the methods and procedures of the analyst who handled the cocaine mixture. The supervisor testified that although he did not conduct the analysis, he did review the data and notes generated by the actual analyst, and agrees with the analyst’s conclusion that the mixture contained crack cocaine. The supervisor also testified that it is the general practice and procedure of the Wisconsin Crime Lab for lab supervisors to review the work of their analysts and peers, and to sign off on final reports prior to release.

The trial judge allowed the supervisor to testify, and Turner was convicted. After the Seventh Circuit affirmed the decision, the Supreme Court remanded and vacated the decision and instructed the lower court to re-examine the issue in light of Williams v. Illinois. When the case returned to the Seventh Circuit, the circuit court again affirmed the conviction.

There is a strong semblance between this case and the 2009 decision in Melendez-Diaz v. Massachusetts. In the 2009 case, the Supreme Court held that the chemist who issued a sworn statement confirming the presence of cocaine in a lab sample must testify in order to admit that statement into evidence. Otherwise, the chemist’s statement is inadmissible as testimonial.

A key difference, however, is that the forensic report admitted into evidence in Melendez-Diaz only contained the bare-bone finding that the sample contained cocaine, without any explanation as to the procedures and analysis and data generated during the lab testing. In contrast, the supervisor in Turner in fact testify to the procedures and data generated during the testing, and explained how the analyst reached her conclusion and why her conclusion was accurate and correct based on the data generated.

This case presents another opportunity for the Supreme Court to finally mend the large tear among both federal and state appellate courts regarding the admissibility of surrogate testimony. Defense attorneys in Massachusetts and all across the nation should be eager to find out if the Supreme Court will choose to accept this appeal. If the Court decides that the original analyst must testify as to her own conclusions, prosecutors and crime investigators all across the nation will be limited in the opinions that they could elicit from their experts on the stand. This will be a substantial victory for criminal defendants who’s constitutional rights to confront their accusers have been undermined by past decisions.

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