In Crawford, the Court held that any testimonial statement from a witness who is unavailable to testify at trial can only be admitted if the accused has had the prior opportunity to cross-examine that witness.
It became critical to determine what kind of evidence is testimonial and what is not. The primary purpose test has emerged to make that determination. A statement is testimonial if its primary purpose is to help in the prosecution of an offense; it is non-testimonial if its primary purpose is to help the police deal with an ongoing emergency.
In 2009, in Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that scientific test reports are testimonial evidence, and cannot be used against the defendant unless the analyst who prepared the report is subject to cross examination at trial or otherwise.
Now, at the end of the October term 2010, in Bullcoming v. New Mexico the U.S. Supreme Court held that when a crime laboratory report—in this case a blood alcohol concentration test—is introduced into evidence, the report is testimonial, and the accused has the right to cross examine the actual analyst who prepared the report, not a substitute analyst. In the Bullcoming case the analyst who had prepared the blood alcohol test was on a leave of absence. The prosecution tried to introduce his report through the testimony of another scientist who performed the same kinds of tests, and was familiar with how they were done. The high court held this was impermissible because it violated the Confrontation Clause.
There is yet another confrontation clause case on the U.S. Supreme Court docket for its upcoming term, Williams v. Illinois. In that case the issue is whether a forensic DNA expert can testify about the results of DNA testing conducted by another analyst, who isn’t at the trial and has not been cross-examined by the defendant. The actual report was not admitted into evidence, but the expert relied upon it in giving her opinions. The Illinois Supreme Court held that the data underpinning the DNA analysis in the report was presented merely to explain the expert’s opinion, not for its truth, thus there was no confrontation clause violation.
This series of rulings, and the one yet to come, have had an impact on several upcoming cases before the Ohio Supreme Court.
State v. Craig is a death penalty appeal pending at the Ohio Supreme Court. In Craig a medical examiner who did not perform the autopsy on the murder victim was allowed to testify as an expert as to the victim’s cause of death. The Ohio Supreme Court ordered supplemental briefing in Craig in light of the Melendez-Diaz case, on these two questions:
1.) Whether the introduction of the autopsy report completed on Roseanna Davenport violated Donald Craig’s Sixth Amendment right to confrontation under Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
2.) Whether Dr. Kohler, a medical examiner who did not conduct the autopsy of Roseanna Davenport, properly testified as to Davenport’s cause of death in view of Melendez-Diaz v. Massachusetts.
Now, the prosecution in the Craig case has asked the Ohio Supreme Court to further delay the matter, arguing that the second issue on which the court ordered supplemental briefing could well be determined by the upcoming case of Williams v. Illinois. The Court has agreed to this further stay.
The Ohio Supreme Court has also accepted jurisdiction in State v. Estrada-Lopez, 2010-Ohio-0659. Daniel Estrada-Lopez was convicted of aggravated murder while committing or attempting to commit rape, with a firearm specification.
At Estrada-Lopez’s trial, a forensic analyst other than the one who performed the DNA and blood analysis testified in court as to the results of the tests. The Court accepted jurisdiction with this proposition of law urged by the defendant: “The Confrontation Clause prohibits the state from introducing testimonial statements of a nontestifying forensic analyst through the in-court testimony of a third party who did not perform or observe the laboratory analysis on which the statements are based .”
The Ohio Attorney General filed an amicus brief on behalf of the state with this proposition of law: “A qualified expert may testify about his opinion based on scientific data generated by another, non-testifying analyst. The admission of the underlying data to show the basis of the testifying expert’s opinion does not violate a defendant’s confrontation rights.”
The Court had ordered the Estrada-Lopez case stayed pending the outcome of the Bullcoming decision. But the state has argued the case is more similar to Williams v. Illinois than to Bullcoming, and has requested a further stay until Williams v. Illinois is decided. The high court had not yet ruled at the time of this post, but will probably agree to the further stay.
The Ohio Supreme Court has also accepted the case of State v. Hardin. As in the Lopez-Estrada case, in Hardin the autopsy of the victim was conducted by a deputy coroner who did not then testify at Hardin’s trial for felony murder and child endangering. Instead, the deputy coroner’s supervisor testified as to the cause of death. The Court has held this case pending the outcome of Craig as well.
One thing is clear. These confrontation clause cases are carrying a huge swell of state court matters in their wake.