Tuesday, May 01, 2018

Continuing confusion on lab tests

Stu Dedopoulos, who does a wonderful job of keeping me informed, has brought to my attention the decision of the supreme court of his home state of New Hampshire, issued today, in State v. Watson.  It provides a good opportunity to comment on the sad state of affairs regarding forensic lab tests.

Watson was charged with felony sale of a controlled drug resulting in death, so toxicology tests on the victim were critical to the prosecution.  In all autopsy cases, the state's Chief Medical Examiner sends specimens to a private lab based in Pennsylvania.  In this case, the lab was asked to test for over 200 substances.  How many different tests the lab actually performed is not clear from the court's opinion.  In any event, the prosecution presented one witness from the lab, Dr. Daniel Isenschmid, a toxicologist, who supervised the lab's report but apparently observed none of the testing.  He testified to the presence in the victim's blood of fentanyl, norfentanyl ( metabolic breakdown of fentanyl), and a breakdown of marijuana, and to the presence of marijuana and opiates in the victim's urine.  He also testified to the amounts of fentanyl and norfentanyl (21 and 2.2 nanograms, respectively), and given those he offered the opinion that the victim had ingested a large amount of fentanyl and that he died shortly after doing so.  The state supreme court ultimately upheld that Isenschmid's testimony did not violate the Confrontation Clause violation because "he testified to his own, independent conclusions."

Several points.  First, if the state had properly proved that there were 21 nanograms of fentanyl in the victim's blood and 2.2 nanograms of norfentanyl, there would be no problem under the Confrontation Clause with Isenschmid -- or any other qualified witness -- using that information to testify to an opinion regarding the cause and manner of death.  But Isenschmid did not know the facts on which his opinion was based, and the only proof of those came through testimonial statements by persons who did not testify.

Second, and relatedly, we really should be clear that it is nonsense to say that Isenschmid's testimony did not violate the Confrontation Clause because he offered "independent" conclusions.  His conclusion as to the manner and cause of death was based critically on information provided to him, such as that there were 21 nanograms of fentanyl in the victim's blood.  If he had just testified to factual propositions like that, based on testimonial statements made by other persons who did not appear at trial, I think the Confrontation Clause violation would have been clear.  That in addition to reporting those facts he offered an opinion based on them does not diminish the problem.

Third, to be precise, the problem is not that Isenschmid did not perform any of the tests.  Rather, it's that his testimony relayed, and relied on, testimonial statements made by persons who did not testify subject to confrontation, and as to facts as to which Isenschmid could not testify.  If, for example, he had observed a test and had recorded its results, there would be no problem with his testifying at trial as to that.  (This is important in autopsy cases, where there may be an observing medical examiner.)

Fourth, given Isenschmid's testimony that 12 lab employees handled the samples, the court says that "[t]aken to its extreme," the defendant's implication is that all 12 would have had to be produced for Isenschmid to be able to testify.  I don't know what Watson argued, but this parade-of-witnesses horrible is a strawman.  (Mixed metaphor cheerfully acknowledged.)  It is not necessary to produce everyone who handled samples; it is only necessary to produce persons whose testimonial statements are being presented, explicitly or implicitly, to the trier of fact. 

Fifth, as a related matter, the prosecution does not have to present live witnesses testifying to a chain of custody with no breaks whatsoever.  The court accurately quotes Melendez-Diaz, 557 U.S. at 311 n.1, that “it is not the case . . . that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”  Melendez-Diaz further said that gaps in the chain normally go to the weight rather than admissibility of evidence, and added:  "It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live."  I'd add that it could be that the break is so large that the court is obligated to conclude that there is insufficient proof that the sample tested is the material one, but that would be an unusual case.

Sixth, I don't think there's any problem with a witness like Isenschmid testifying, "This is what we ordinarily do. . . ." and letting the jury conclude from that testimony that the lab acted in that way in the particular case.  The problem comes when he testifies, "This is what we did here (because my colleague, understanding full well this was a forensic test, told me what she did) . . . ."

Seventh, the Confrontation Clause should shape lab organization, not the other way around.  In the US Army lab, according to the evidence in a case I handled a couple of years ago, one lab analyst handles the sample from intake all the way through to report, even for DNA tests.  Perhaps that is mildly less efficient, not taking into account the accused's confrontation rights.  That's not a good enough reason to decline to organize the lab in that way.  Note that in this case Watson was convicted of a felony that subjected him to a life term (I don't know what sentence the court actually imposed.)  If the lab that the state chooses to use chooses to have three different analysts perform one test each, and the testimonial report of each is critical to the prosecution, then all three should testify.  But that is a non-inevitable choice that the lab makes.

Ultimately, I think it is the supposed multi-witness problem that scares courts in this area.  I think defense lawyers have to make carefully thought-out arguments as to what evidence the prosecution might need in the particular case, and who must therefore testify.  And they should not take the organization of a particular lab as a given.

Friday, March 09, 2018

Autopsy reports -- still waiting for clarification

Last May, I posted a discussion concerning the treatment of autopsy reports under the Confrontation Clause.  The principal issue is when, or whether, such reports should be considered testimonial.  A secondary issue, which arises in other contexts, is whether, assuming a report is testimonial, the prosecution can present secondary evidence concerning the contents of the report on the ground that it supports the opinion of an expert testifying live at trial.

I think the answers should be clear:  An autopsy report should clearly be considered testimonial when it concludes that the probable cause of death is homicide or otherwise provides evidence that a reasonable person in the position of the person writing the report would realize would likely be used in prosecution.  And if a report is testimonial, the Confrontation Clause is not satisfied by having an in-court witness rely on the report  for her opinion, whether or not that opinion is characterized as "independent," if the report only supports the opinion on the premise that the report is truthful.

But unfortunately there remains a great deal of confusion on these issues in the lower courts.  Some get them right, and others do not.  The Supreme Court indicated some interest in the problem last fall when it asked for a brief in opposition to the petition for certiorari (in which Jeff Fisher participated) in Garlick v. New York, but in the end it denied the petition.  Here are the petition (together with the motion for leave to proceed in forma pauperis) and the reply brief in support of the petition.

Meanwhile, Cody Reaves, who has since graduated from the University of Michigan Law School, did an independent study under my supervision on the Confrontation Clause issues related to the use of autopsy reports.  I believe his memo is a very useful resource for anyone doing research in this area, so I am posting it here.  It is Cody's work, not mine, and the conclusions are his; I certainly agree with some of his opinions, but not necessarily with all.

Friday, September 15, 2017

Another look at the Craig-Crawford disjuncture?

Crawford did not purport to disturb Maryland v. Craig, 497 U.S. 836 (1990), which allowed a prosecutor in some circumstances to present the testimony of a child by electronic transmission from a place outside the physical presence of the accused.  But Craig was based on the flexible approach to the Confrontation Clause of Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford overturned.  It is not surprising that Justice Scalia, the author of Crawford, wrote a bitter dissent in Craig, a 5-4 case, and that Justice O'Connor, the author of Craig, was one of two members of the Court not to join the majority opinion in Crawford:  The two opinions reflect radically different views of the Confrontation Clause.  Up til now, the Supreme Court has declined to discuss what the standing of Craig is in light of Crawford.  It has certainly had opportunities.  For example, see here and here. Now Judge Jeffrey Sutton of the Sixth Circuit has written a concurrence in a decision, United States v. Cox, strongly suggesting that the Supreme Court ought to take the matter up.   We'll see what happens. The justices won't necessarily take up Judge Sutton's suggestion, but his is a voice to which they will likely pay attention.

Cox involves electronically transmitted testimony by a third-grader and a sixth-grader.  Other child witnesses evidently testified live at the trial.

Scotusblog piece on the effects of Melendez-Diaz

Scotusblog recently ran a piece by Andrew Hamm titled Looking back at predictions in Melendez-Diaz v. MassachusettsHere is a link. 

I think it's fair to say that this article bears out the conclusion that, despite the dire predictions made by Justice Kennedy of how devastating Melendez-Diaz would be to the criminal justice system, the actual effect has been rather modest.  There was, at least in some states, an initial period of adjustment, as one would expect.  And it may be that defendants' hands in plea bargaining have been strengthened slightly -- but that's not inappropriate, because if defendants' rights have been ignored and are then restored, their bargaining hands should be strengthened.  The Scotusblog article reports the findings of a Ph.D. dissertation by Catherine Bonventre concluding that the effects of Melendez-Diaz have been "none to minimal.  It also uses a study that I supervised, previously reported on this blog, indicating that even in DNA cases adhering to the confrontation right does not result in a parade of lab witnesses.

The Scotusblog article also summarizes the argument made by Sean Driscoll that the case of Annie Dookhan, who was cross-examined 150 times without her years of lab fraud being discovered shows the futility of cross in this context.  I certainly don't think it's a panacea, and it may be that a determined liar like Dookhan will often not be exposed on cross.  But I think the principal value of cross, or the possibility of it, in this context is that the practice of lab techs is likely to be considerably more careful if they know they may have to answer questions under oath about what they have done.

Tuesday, May 30, 2017

An issue to be resolved: The treatment of autopsy reports

This blog has remained dormant for some time, it part because I have been distracted by other work and in part because there haven't been all that many developments that I have thought are worth reporting on.  But I will try to begin posting again more frequently.

There is one set of issues in particular that I think is headed for resolution by the Supreme Court, the treatment of autopsy reports in murder cases, and I expect to be writing several posts on it.  There are two basic issues, one specific to autopsy reports and the other common to other types of forensic reports.

First is the question of whether, or when, an autopsy report is testimonial.  Let's bear in mind how this issue comes up.  Almost always, it is the prosecution in a murder case that wants to use the report without producing as a live witness the medical examiner who made the report.  And the report provides some information -- often the cause of death, and sometimes the time as well -- that is helpful to the prosecution.  Almost always it is clear that, at least as of the time the examiner wrote the report, he or she believed that the death was probably a homicide.  And that means that the examiner must have known that he or she was creating evidence for use in a criminal case.  In such a case, I think it is clear that the report (and especially the statements of use to the prosecution) is testimonial in nature.  If it were not, that is akin to saying to the medical examiner, "Write up your report, and send it in to the police and the prosecutor.  You know, and everyone else knows, that you are doing so with the anticipation that it will be used as evidence or the prosecution in a homicide case, but there will be no need for you to take an oath, or appear in court or before the accused, or be subjected to cross-examination."  That goes against the very core of the confrontation right, and it utterly lacks historical foundation.

Some courts have seen it this way.  Others, though, have regarded autopsy reports as non-testimonial, principally on the basis of the proposition that autopsies are frequently performed for public health purposes having nothing to do with prosecution.  That proposition is true but immaterial.  The question should not be resolved by taking a survey of such a large body of reports -- the question in any given case is whether this report is testimonial.  And even if one did think that the question should be resolved by looking at a category of cases, "autopsies" is too broad -- a more appropriate category would be "forensic autopsies" or "medico-legal autopsies", both of which are well-known in the field.  Even assuming we are to look at the "primary purpose" of the statement (I don't think that should be the test, and perhaps the autopsy case will finally cause the Supreme Court to abandon it), and even assuming that there can be only one "primary purpose" of a statement (an unresolved matter), the primary purpose of a forensic autopsy report is to provide information for the criminal justice system leading to the conviction of the perpetrator of a homicide.

It also should not matter whether the autopsy report is directed at a targeted individual -- five justices rejected that idea in Williams v. Illinois, and for reasons I have explained before and won't bother with now, they were right in doing so.

Nor does it matter that autopsy reports are sometimes performed in cold cases, and prosecution may not follow for some years to come.  It is not a general principle of law that when time passes the prosecution can be excused from presenting its witnesses, absent proof that the accused forfeited the confrontation right, and there is no reason to create such a principle with respect to medical examiners.  And indeed, in this context (unlike that of a crucial eyewitness) the state can protect itself to a great degree by ensuring (as is standard practice in at least some jurisdictions) that at least two people competent to testify about what happened in the autopsy are present (and preferably one of them rather young!).  The state could also protect itself to a great degree by taking a continuous film of the autopsy, including the patient's face.

Finally, it does not mater whether the medical examiner is independent of the police or prosecutor. We do not have a system in which the confrontation right applies only to witnesses who have an affiliation with the criminal justice system.

Second is the question of whether one expert witness can offer an "independent" opinion based on factual assertions made by another expert in a testimonial statement.  This issue is not peculiar to autopsy reports; it arises with respect to many types of forensic lab reports, and was present in Williams.  Five justices properly answered the question in the negative, but because of the unusual result in that case -- the four prevailing because Justice Thomas joined them on other grounds -- the matter is still in contention.  I've addressed this matter before, especially in discussing Williams, and may come back to it later, but won't say more here.

There is a case pending before the Pennsylvania Supreme Court, Commonwealth v. Brown, that presents both issues (although with respect to the second it may be that only state-law issues are involved).  The Superior Court opinion, 139 A.3d 208 (Pa. Super. Ct. 2016), held that the autopsy report was testimonial and introduction of it was a Confrontation Clause violation -- but that the error was harmless because another examiner testified to her "independent" opinion (even though that opinion was based in part on facts asserted in the autopsy report).  So the court got one right and one wrong.  Both parties have appealed.  Here is Brown's initial brief; here is the state's initial brief; here is Brown's second brief (reply brief on his appeal, and appellee's brief with respect to the state's appeal).  The state will presumably file a reply brief on its appeal.

More to come on this set of issues.

Wednesday, December 23, 2015

Third petition on surrogate experts

Tim Provis, counsel for the petitioner in Roalson v. Wisconsin, No. 15-6037, which presents an issue similar to Griep and Katso, has kindly provided me with copies of the papers on cert.  Here are links to the Petition, the State's Brief in Opposition, and the Reply Brief supporting the Petition.

Thursday, November 26, 2015

New cert petitions on the "expert witness end-run"

At least two cert petitions are currently before the Supreme Court on the question of whether, or when, a prosecution may present the substance of an out-of-court testimonial statement through an in-court witness who bases an opinion in part on that statement.  One is Griep v. Wisconsin.  The State originally declined to file a brief in opposition to the petition, but the Court requested one.  Here are links to the petition, to the brief  in opposition, and to the reply brief.  The second petition, on which I am counsel of record, is Katso v. United States.   The Government has twice asked for extensions of the time to file a brief in opposition; its time now expires on January 4.  You can read the petition by clicking here

Monday, June 22, 2015

Audio of public radio show on Ohio v. Clark

Joan Meier, who commented last week on this blog, and I appeared on Friday on a Los Angeles public radio show, discussing Ohio v. Clark. If you're interested, you can listen to it by clicking here.  
By the way, Joan cited favorably a recent book by Ross Cheit,  The Witch Hunt Narrative: Politics, Psychology, and the Sexual Abuse of ChildrenHere for comparison is a very different view of the book.

I have insufficient knowledge of the subject matter to engage usefully in a debate over the Cheit book.  I will say, though, that I have great faith in the scholarly fairness and integrity of Sam Gross, my colleague of over a quarter century, and of Steve Ceci, with whom I have partnered on a few projects over the last fifteen years and more.