Supervising
chemist can testify in vehicular homicide if they independently verified
correctness of blood test results State v. Michaels 219
NJ 1 (2014)
Defendant’s confrontation
rights were not violated by the admission of Dr. Barbieri’s report or his
testimony regarding the blood tests and his conclusions drawn therefrom. Dr.
Barbieri was knowledgeable about the testing process, independently verified the
correctness of the machine-tested processes and results, and formed an
independent conclusion about the results. Defendant’s opportunity to
cross-examine Dr. Barbieri satisfied her right to confrontation on the forensic
evidence presented against her.
State v. Julie L. Michaels (A-69-12) (072106)
[NOTE: This is a companion case to State v.
Reginald Roach,
Decided August 6, 2014
LaVECCHIA, J., writing for a majority of the Court.
This appeal requires the Court to address whether
defendant’s confrontation rights were violated by the admission of a forensic
report analyzing defendant’s blood sample, where the report was admitted into
evidence through the testimony of the report’s author -- a laboratory
supervisor and qualified expert who had reviewed and certified the test results
-- without the testimony of the various individuals who had performed tasks
associated with the testing procedures.
Defendant’s blood sample was sent by the local police
department to NMS Labs, a private laboratory that performs analytical testing
for a number of private and public entities. Fourteen NMS analysts were
involved in various aspects of handling and performing gas chromatography/mass
spectrometry testing on defendant’s blood sample. The testing indicated that
defendant’s blood sample contained cocaine, cocaine derivatives, and
alprazolam, an active ingredient in Xanax.
The testing of defendant’s blood sample produced
approximately 950 pages of data, which was provided to Dr. Barbieri, a forensic
toxicologist and pharmacologist who also held the titles of Assistant
Laboratory Director and Toxicology Technical Leader at NMS Labs. Dr. Barbieri
reviewed all of the data and then wrote, certified and signed a report,
concluding that defendant’s blood contained cocaine and alprazolam in such
quantities that she would have been impaired and unfit to operate a motor
vehicle at the time the sample was collected.
Defendant was indicted on multiple charges including
second-degree vehicular homicide while intoxicated and third-degree assault by
auto while intoxicated. At defendant’s trial, Dr. Barbieri testified about the
general processes used by NMS to analyze blood samples, the specific tests
performed on defendant’s blood, and the results of those tests. Dr. Barbieri acknowledged
that there is a “human element” to the testing procedures and that he had not
conducted the tests himself. However, he stated that he had reviewed the
voluminous machine-generated data and was satisfied that the testing had been
done properly and that his independent review permitted him to certify the
results. Dr. Barbieri opined that, at the time of the collision, defendant was
impaired by the quantity of alprazolam and cocaine found in her system, and
that she would have been unable to drive safely.
Defendant objected to the admission of Dr. Barbieri’s
report as hearsay, and the trial court found the report admissible. At the
close of the State’s case, defendant moved to strike Dr. Barbieri’s testimony,
contending that the State was required to present testimony from the persons
who actually conducted the blood sample testing. The trial court denied the
motion, noting that as the lab supervisor, Dr. Barbieri could testify about the
procedures that were employed and give an opinion, based on his expertise, as
to what conclusions should be drawn from that testing.
The jury found defendant guilty on all counts.
Defendant moved for a new trial, raising, among other arguments, a Sixth
Amendment Confrontation Clause objection to Dr. Barbieri’s
testimony. The court denied the motion and sentenced defendant to an aggregate
extended term of eighteen years’ imprisonment with twelve years and two months
of parole ineligibility. Defendant appealed her convictions and sentence,
casting her arguments regarding Dr. Barbieri’s testimony as a violation of the
Confrontation Clause. The Appellate Division affirmed, and this Court granted
defendant’s petition for certification limited to the confrontation issue. 214 N.J.
114 (2013).
HELD: Defendant’s
confrontation rights were not violated by the admission of Dr. Barbieri’s
report or his testimony regarding the blood tests and his conclusions drawn
therefrom. Dr. Barbieri was knowledgeable about the testing process,
independently verified the correctness of the machine-tested processes and
results, and formed an independent conclusion about the results. Defendant’s
opportunity to cross-examine Dr. Barbieri satisfied her right to confrontation
on the forensic evidence presented against her.
1. The Sixth
Amendment to the United States Constitution provides in part
that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . .
to be confronted with the witnesses against him.” The United States Supreme
Court’s current line of cases on Confrontation Clause jurisprudence begins with
Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed.2d
177 (2004), which held that an accused’s right to
confront witnesses applies to all out-of-court statements that are
“testimonial.” Under Crawford, such statements are inadmissible unless
the witness is unavailable to testify and the defendant had a prior opportunity
for cross-examination.
2. Since 2004, the United States Supreme Court has
considered Crawford’s application in three cases involving forensic
reports—Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct.
2527, 174 L. Ed.2d
314 (2009); Bullcoming v. New Mexico, 564 U.S.
__, 131 S. Ct.
2705, 180 L. Ed.2d
610 (2011); and Williams v. Illinois, 567 U.S.
__, 132 S. Ct.
2221, 183 L. Ed.2d
89 (2011). In Melendez-Diaz, supra, the
Supreme Court reversed a defendant’s conviction where the prosecution failed to
produce any analyst to support and be cross-examined regarding the statements
contained in a forensic document. In a five-to-four decision, the Court held
that laboratory certificates setting forth the results of analysis of drug
samples were testimonial statements and therefore were inadmissible. 557 U.S.
at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322.
3. In Bullcoming, another five-to-four
decision, the Supreme Court considered “whether the Confrontation Clause
permits the prosecution to introduce a forensic laboratory report containing a
testimonial certification – made for the purpose of proving a particular fact –
through the in-court testimony of a scientist who did not sign the certification
or perform or observe the test reported in the certification.” Bullcoming,
supra, 564 U.S. at __, 131 S. Ct. at 2710, 180 L. Ed.
2d at 615-16. The Court held that the forensic report was inadmissible,
reasoning that the testimony of a substitute analyst who did not perform or
observe the tests and did not certify the results constituted “surrogate
testimony” that violated the defendant’s confrontation rights. Id. at
__, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. Justice Sotomayor
wrote a separate concurring opinion that emphasized the limited nature of the
Court’s holding by noting, among other points, that Melendez-Diaz did
not stand for the proposition that every person identified as performing some
task in connection with a forensic report must be called as a witness. Id.
at __, 131 S. Ct. at 2722, 180 L. Ed. 2d at 628-230 (Sotomayor,
J., concurring).
4. Most recently, in Williams, a plurality of
the Court found that a defendant’s right of confrontation was not violated by
the testimony of an individual who matched a DNA profile produced by a private
laboratory to the defendant’s DNA. Williams, 567 U.S. at __, 132 S.
Ct. at 2227, 183 L. Ed. 2d at 98. Notably, the plurality’s analysis
was criticized by a majority of the Court, including four dissenting members, id.
at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J.,
dissenting), and Justice Thomas, who joined in the plurality’s judgment, but
disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183 L.
Ed. 2d at 129 (Thomas, J., concurring in the judgment). Because each of the
Williams opinions embraces a different approach to determining whether
the use of forensic evidence violates the Confrontation Clause, and because a
majority of the Supreme Court expressly disagreed with the rationale of the
plurality, there is no narrow rule that this Court can discern from Williams
and thus Williams’s force, as precedent, is at best unclear. The Court
thus turns to the pre-Williams cases for more reliable guidance on
confrontation rights.
5. Applying pre-Williams jurisprudence, the
Court observes that neither Melendez-Diaz nor Bullcoming requires
that every analyst involved in a testing process must testify in order to admit
a forensic report into evidence and satisfy confrontation rights. Nor do the
cases suggest that the primary analyst involved in the original testing must
testify when a different, sufficiently knowledgeable expert is available to
testify. Moreover, the Court notes that it would take confrontation law to a
level that is not only impractical, but, equally importantly, is inconsistent
with prior law addressing the admissibility of an expert’s testimony in respect
of the substance of underlying information that he or she used in forming his
or her opinion. By way of background, the Court notes that, in determining when
the facts underlying a forensic expert opinion may be disclosed to the jury,
New Jersey’s 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. Such law
is consistent with the principle that a knowledgeable expert who is someone other
than the primary analyst who conducted a forensic test may testify to an
opinion regarding testing results, when those results have been generated by
demonstrably calibrated instruments.
6. The Court then examines defendant’s argument that
her confrontation rights were violated by Dr. Barbieri’s testimony and the
admission of his certified report. Unlike in Melendez-Diaz, where no
witness was offered to testify to the statements contained in the forensic
document that was admitted into evidence, here the report was admitted through
the live testimony of Dr. Barbieri, the person who prepared, signed, and
certified the report, and Dr. Barbieri was available for cross-examination. In
addition, the forensic report that the Supreme Court rejected in Bullcoming
had been admitted through the testimony of a co-analyst or “surrogate” who did
not serve as supervisor or reviewer responsible for certifying the results.
Here, the Court accepts that Dr. Barbieri’s report was testimonial. However,
Dr. Barbieri supervised the analysts who performed the tests, was qualified as
an expert in the relevant subject areas, analyzed the machine-generated data,
and produced and certified the testimonial report in issue. As the reviewer of
the testing process and the author of the report, it was proper for Dr.
Barbieri to testify to its contents and to answer questions about the testing
it reported.
7. In response to the dissenting opinion, the Court
explains that Dr. Barbieri was not merely repeating the findings and
conclusions of the analysts who conducted the testing. Rather, the findings and
conclusions contained in the report and to which he testified were his own. 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, if the testifying witness is
knowledgeable about the testing process, has independently verified the
correctness of the machine-tested process and results, and has formed an
independent conclusion about the results. Testimonial facts can “belong” to
more than one person if the verification and truly independent review described
above are performed and set forth on the record by the testifying witness.
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, DISSENTING, expresses the view that the Sixth
Amendment’s Confrontation Clause bars the admission of this
forensic report and the testimony of the expert because the State did not
produce for cross-examination the analyst(s) who actually performed the test on
defendant’s blood.
In criminal
cases, the State routinely retains scientists and analysts to perform tests on
a suspect’s blood to detect the presence of drugs or alcohol.
The Sixth
Amendment’s Confrontation Clause generally bars the admission of an
absent witness’s out-of-court testimonial hearsay as a substitute for live
in-court testimony when the accused has not had the opportunity to
cross-examine the absent witness. Crawford v.
Washington, 541 U.S. 36, 50-62, 124 S. Ct. 1354, 1363-71, 158 L. Ed. 2d 177, 192-99 (2004).
The purpose of
the Confrontation Clause is not to foster expedient trial procedures, but to
ensure that testimonial evidence is tested in the crucible of cross-examination
-- however time consuming or difficult that process may be. See Crawford,
supra, 541 U.S.
at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d at 199. Thus, chemical analysts
who provide out-of-court “testimony” through laboratory reports must be made
available for cross-examination. Bullcoming,
supra, 564 U.S.
at ___, 131 S. Ct. at 2716, 180 L. Ed. 2d at 622.
Curtailing confrontation
rights is not the answer to the uncertainty in federal jurisprudence.
The admission of
testimonial statements from witnesses absent from trial violates the Sixth Amendment’s Confrontation Clause unless the
witnesses are “unavailable,” and “the defendant has had a prior opportunity to
cross-examine” them. Crawford, supra, 541 U.S.
at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. A statement is
“testimonial” if the primary purpose of making the statement is to establish a
fact as evidence in a later criminal prosecution. Bullcoming, supra, 564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed.
2d at 620 n.6 (quoting Davis v. Washington,
547 U.S. 813, 822, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).
Applying that test in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310-11, 129 S. Ct. 2527, 2532, 174 L. Ed.
2d 314, 321 (2009), the Court held that a laboratory report identifying a
substance as cocaine was testimonial evidence and therefore its admission at
trial, without the testimony of the analyst who prepared it, violated the Sixth Amendment’s Confrontation Clause. The report
in Melendez-Diaz was created for the
specific purpose of serving “as evidence in a criminal proceeding.” Bullcoming, supra,
564 U.S. at ___, 131 S. Ct. at 2709, 180 L. Ed.
2d at 615.
Bullcoming presented a variation of
the theme in Melendez-Diaz. In Bullcoming, the Court held that
the in-court testimony of a scientist who did not conduct or participate in any
laboratory tests relevant to the case, but who read into evidence the actual
analyst’s test results contained in a certified report, violated the
Confrontation Clause. Id. at ___, 131 S. Ct. at 2713, 180 L.
Ed. 2d at 619.
In Bullcoming,
the defendant was arrested for driving while intoxicated (DWI). Id. at
___, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. A blood sample was
taken from him at a hospital and submitted for testing at a state laboratory. Ibid.
A forensic analyst operated a gas chromatograph machine to test Bullcoming’s
blood sample and determined his blood alcohol content (BAC). Id. at ___,
131 S. Ct. at 2711, 180 L. Ed. 2d at 617. The Supreme Court made
the following observations about the operation of the gas chromatograph machine:
“‘[T]he analyst must be aware of, and adhere to, good analytical practices and
understand what is being done and why.’” Id. at ___ n.1, 131 S. Ct.
at 2711 n.1, 180 L. Ed. 2d at 617 n.1 (quoting David T. Stafford, Chromatography,
in Principles of Forensic Toxicology 92, 114 (B. Levine ed., 2d
ed. 2006)). Although the gas chromatograph machine produces a printed graph,
securing “an accurate BAC measurement . . . is not so simple or certain.” Ibid.
The forensic
analyst determined that Bullcoming’s BAC was 0.21, a level sufficient to
support a conviction for aggravated DWI. Id. at ___, 131 S. Ct.
at 2711, 180 L. Ed. 2d at 617–18. The analyst was not called as a
witness at Bullcoming’s trial. Id. at ___, 131 S. Ct. at 2711–12,
180 L. Ed. 2d at 618. Instead, the State called Gerasimos Razatos, a
scientist also qualified as an expert in the gas chromatograph machine but who
did not participate in testing Bullcoming’s blood. Id. at ___, 131 S.
Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live, in-court testimony”
about laboratory procedures, the machine’s operation, and the results of the
BAC test. Id. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at
619. In addition, the analyst’s report was admitted as a business record. Id.
at ___, 131 S. Ct. at 2712, 180 L. Ed. 2d at 618.
The United States Supreme
Court held that Razatos’s surrogate testimony violated the Confrontation Clause
because Bullcoming did not have the opportunity to cross-examine the forensic
analyst who tested his blood. Id. at ___, 131 S. Ct. at 2713, 180
L. Ed. 2d at 619. According to the Court, the surrogate expert’s
testimony “could not convey what [the forensic analyst] knew or observed about
the events his [laboratory report] concerned, i.e., the particular test
and testing process he employed. Nor could such surrogate testimony expose any
lapses or lies on the certifying analyst’s part.” Id. at ___, 131 S.
Ct. at 2715, 180 L. Ed. 2d at 622. Indeed, at trial, Razatos
admitted that “‘you don’t know unless you actually observe the analysis that
someone else conducts, whether they followed the protocol in every instance.’” Id.
at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L. Ed. 2d at 622 n.8
(alteration in original). Razatos, moreover, was unable to testify why the
forensic analyst was on unpaid leave. Id. at ___, 131 S. Ct. at
2715, 180 L. Ed. 2d at 622. Thus, the defense could not ask “questions
designed to reveal whether incompetence, evasiveness, or dishonesty accounted
for [the forensic analyst’s] removal from his work station.” Ibid.
The Supreme Court reached
conclusions relevant to the facts before the court. First, “the comparative
reliability of an analyst’s testimonial report drawn from machine-produced data
does not overcome the Sixth Amendment bar.” Id. at ___, 131 S. Ct.
at 2715, 180 L. Ed. 2d at 621. Second, the analysts who write reports
that the prosecution introduces must be made available for confrontation even
if they possess “‘the scientific acumen of Mme. Curie and the veracity of
Mother Teresa.’” Ibid. (quoting Melendez-Diaz, supra, 557 U.S.
at 319 n.6, 129 S. Ct. at 2537 n.6, 174 L. Ed. 2d at 327 n.6).
In her
concurring opinion, Justice Sotomayor noted that Bullcoming would have
been “a different case if, for example, a supervisor who observed an analyst
conducting a test testified about the results or a report about such results.” Id.
at ___, 131 S. Ct. at 2722, 180 L. Ed. 2d at 629. Razatos did not
observe the testing of the forensic analyst. Ibid.
B.
In Williams
v. Illinois, supra, the Court divided over the question of whether a
DNA profile, prepared by a specialist who did not testify, was offered for the
truth of its contents. 567 U.S. at ___, ___, 132 S. Ct. at 2228,
2236, 183 L. Ed. 2d at 99, 108 (plurality opinion). No justice in Williams suggested that
passing testimonial statements offered for their truth through a surrogate
witness would be acceptable under the Confrontation Clause.
See State v. O’Neill,
193 N.J. 148, 175 (2007) (affording protections to accused under state
law when “[t]he shifting sands of federal jurisprudence provide no certainty
concerning the standard that might apply to the next set of slightly different
facts”). Cautious prosecutors can still place on the stand the chemist or
analyst who actually conducted the test and will not have to worry about a
United States Supreme Court decision upending a conviction.
