Justices Refuse To Make Forensic Lab Analysts Testify Michael Booth 08/06/2014 NJLJ The New Jersey Supreme Court has refused to adopt a rule requiring that laboratory analysts who prepare forensic reports in criminal cases be available for cross-examination at trial. A majority of the court said requiring every analyst who was involved in the testing to be available for questioning by the defense was not required by the Sixth Amendment’s confrontation clause and that doing so would create “practical drawbacks that range from moderate to severe.” The court said it was acceptable for someone such as a laboratory supervisor who has reviewed the analysts’ findings to testify as to their reliability. “We believe that a truly independent reviewer or supervisor of testing results can testify to those results and to his or her conclusions about those results, without violating a defendant’s confrontation rights,” Justice Jaynee LaVecchia said in State v. Michaels, one of three cases involving the issue released on the same day. “Our evidence case law has focused on whether the witness is knowledgeable about the particular information used in forming the opinion to which he or she is testifying and has a means to verify the underlying information even if he or she was not the primary creator of the data,” LaVecchia said. LaVecchia said while the court would normally rely on guidance from the U.S. Supreme Court, its rulings involving expert testimony and the confrontation clause have been mixed and offer no concrete guidance. “We are pleased that the New Jersey Supreme Court approved of our longstanding practice of allowing experts to rely on scientific data produced by nontestifying analysts, so long as the testifying experts conduct their own independent analysis of the data in reaching their expert conclusions,” said Deputy Attorney General Frank Muroski, who argued on the state’s behalf in two of the cases. Assistant Public Defender Dale Jones said the majority’s decision is “troubling.” “There is a lack of transparency and a lack of ability on the part of criminal defense attorneys to get at errors made in these labs,” Jones said. “We know they exist and significant problems have been exposed.” The other cases decided Wednesday were State v. Roach and State v. Williams. According to the opinion in Michaels, Julie Michaels is serving an 18-year sentence for causing a two-car accident March 3, 2008, in Hardyston Township, N.J., that killed one youth, 16-year-old Dylan Vecchiarelli, and injured the other driver, 20-year-old Danilo Diaz. She argued that her conviction should be overturned because she was not allowed to cross-examine the analyst who determined that she had cocaine and Xanax in her bloodstream. According to the opinion in Roach, Reginald Roach is serving a 40-year sentence for the Nov. 5, 2005, rape and robbery of a 64-year-old North Brunswick, N.J., neighbor. He challenged his conviction on the grounds that he was not allowed to cross-examine the State Police forensic scientist who prepared a DNA report linking him to the crime. In Williams, Bryden Williams is serving a 50-year sentence for the Sept. 3, 2006, murder of a Plainfield, N.J., man, Joel Whitley. He based his appeal on the grounds that he was not allowed to question the medical examiner who performed the autopsy. “We conclude that a defendant’s federal and state confrontation rights are satisfied so long as the testifying witness is qualified to perform, and did in fact perform, an independent review of testing data and processes, rather than merely read from or vouch for another analyst’s report or conclusions,” LaVecchia wrote for the majority in Roach. Justice Barry Albin dissented in Michaels and inRoach, saying that the confrontation clause requires that the defendant be allowed to cross-examine the analyst who actually performed the tests and reached a conclusion. “Today, the majority pronounces that the accused has no constitutional right to confront the scientist or analyst who actually performs the test,” Albin said. “Curtailing confrontation rights is not the answer to the uncertainty in federal jurisprudence. ...The majority may be charting a course that will collide with the next United States Supreme Court case construing the confrontation clause.” LaVecchia said the U.S. Supreme Court has, in recent years, ruled in three confrontation clause cases— Melendez-Diaz v. Massachusetts in 2009, as well as Bullcoming v. New Mexico and Williams v. Illinois, in 2011 and 2012, respectively. In Melendez-Diaz and Bullcoming, the court said lab test results were testimonial and that the use of “surrogate” witnesses was improper. InWilliams, however, the court said a DNA profile could be admitted even though the analyst who prepared it did not testify. LaVecchia said it is “far from clear” based on those rulings that there is an obligation to call every analyst who may have played a part in preparing a forensic report. Adopting Albin’s dissent could create problems if, for instance, the analyst who prepared the report no longer works at the laboratory or has died, LaVecchia said. “There is a real likelihood that such dilemmas could arise in cold cases,” she said. Alan Zegas, a litigator who focuses on criminal law, said he believed the court should have followed Williams, the U.S. Supreme Court’s most recent ruling. “The state should have an obligation to call these witnesses” under the U.S. Supreme Courts rulings on testimonial evidence in Melendez-Diazand Bullcoming, said Zegas, who runs a firm in Chatham, N.J. “Without these witnesses, the defendants’ confrontation rights were violated.” Albin wrote for a unanimous state Supreme Court in Williams and said a confrontation clause objection has to be raised at trial. “The doctrine of invited error does not permit a defendant to pursue a strategy of allowing a substitute witness to testify—hopefully to his advantage—and then when the strategy does not work out as planned, cry foul and win a new trial,” he said. Muroski said it’s “important that the Supreme Court recognized that defendants must insist on their right of confrontation in a timely manner before trial and cannot raise that for the first time on appeal.” Copyright 2013. ALM Media Properties, LLC. All rights reserved. -- Jeff Gold ---
Posted on: Sat, 09 Aug 2014 15:14:49 +0000
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