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EXPERT TESTIMONY AND THE CONFRONTATION CLAUSE
PAUL C. GIANNELLI*
INTRODUCTION
I. BASES OF EXPERT TESTIMONY
A. Delaware v. Fensterer
1. Delaware Supreme Court
2. United States Supreme Court
3. Lack of documentation
4. Discovery
5. Confrontation
B. Federal Rule of Evidence 703
1. Confrontation issues
2. Reardon v. Manson
a. "under the supervision"
b. misleading
c. nonspecificity
d. discovery
e. summary
C. Confrontationas a PretrialRight
1.
Pennsylvania v. Ritchie
2. Wayne Williams prosecution
3. The constitutional right to discovery
II. ADMISSIBILITY OF LABORATORY REPORTS
A. Hearsay and Confrontation
B. Ohio v. Roberts
1. Unavailabilityrequirement
a. "better evidence" argument
b. "burden-benefit" argument
2. Reliability requirement
3. Summary
C. Laboratory Reports
1. Reliability: traditionalhearsay dangers
2. Reliability: scientific problems
D. Other Approaches
CONCLUSION
Copyright © 1993, Paul C. Giannelli
* Albert J. Weatherhead III and Richard W. Weatherhead Professor of
Law, Case Western Reserve University. B.A. 1967, Providence College; J.D.
1970, University of Virginia; M.S. 1973, George Washington University; LL.M.
1975, University of Virginia. I am grateful to Margaret Russell for her insightful
comments and editorial assistance.
CAPITAL UNIVERSITY LAW REVIEW
[22:45
INTRODUCTION
The Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall enjoy the right . . .to be confronted
with the witnesses against him."' In this paper, I examine expert
testimony and the Confrontation Clause. I address two issues: (1)
challenging the bases of expert testimony and (2) the admissibility of
scientific reports in lieu of expert testimony. The first issue focuses
on the meaning of effective cross-examination of an expert at trial.
The second issue involves the problematic relationship between the
right of confrontation and the hearsay rule. While neither of these
issues is easy to resolve, three recommendations for reform respond
to the confrontation problems arising from expert testimony and the
admission of scientific reports. These are (1) expanded pretrial
discovery, (2) notice and demand statutes, and (3) crime laboratory
proficiency testing.
I. BASES OF EXPERT TESTIMONY
When an expert witness expresses an opinion at trial, that opinion
is based on underlying facts or data. The law of evidence labels these
facts as the "bases" for the opinion. For example, a pathologist who
testifies about the cause of death in a homicide case forms an opinion
based upon the autopsy findings. The basis of the opinion is the
critical foundation which supports the expert's opinion. If the jury
rejects the basis, it also must reject the opinion.2
L U.S. C ONST. amend. VI; see also Pointer v. Texas, 380 U.S. 400 (1965)
(Confrontation Clause held binding upon the states).
2. Wigmore explained the relationship between bases and opinion as
follows:
The key to the situation, in short, is that there may be two distinct
subjects of testimony-premises, and inferences or conclusions; that the
latter involves necessarily a consideration of the former; that the
tribunal must be furnished with the means of rejecting the latter if upon
consideration they determine to reject the former, i.e., of distinguishing
conclusions properly founded from conclusions improperly founded.
2 JoHN H. WIGMORE,
EVIDENCE
672,934 (James H. Chadbourn rev. 1979).
1993]
EXPERT TESTIMONY
A. Delaware v. Fensterer
3
In Delaware v. Fensterer,
the U.S. Supreme Court considered a
confrontation challenge involving the basis of expert testimony.
Fensterer was charged with the strangulation murder of his live-in
fiancee. Her body was discovered in her car, which was left in a
shopping center parking lot.4
The prosecution contended that Fensterer strangled the victim
with a cat leash in their apartment. The prosecution's entire case
rested on circumstantial evidence. Two hairs on the leash were
similar to the victim's hair, and an FBI analyst testified that one of
the two hairs had been "forcibly removed".' The prosecution argued
that the hair had been dislodged during the strangulation. The
opinion of the Delaware Supreme Court highlighted the importance of
this evidence: the FBI expert's testimony "established the leash as the
murder weapon" and "[t]he leash belonged to Fensterer and [the
victim]." 6
The FBI expert testified that there are three methods to determine
if hair is forcibly removed: (1) The presence of a follicular tag on the
hair, (2) the presence of an elongated and misshaped root, and (3) the
presence of a sheath of skin surrounding the root area. He could not,
however, remember which method he had used in reaching his
conclusion. He testified: "As to the exact manner in which this
particular hair was forcibly removed, I don't know. I have no
indication in my notes other than the fact it was forcibly removed."7
A defense expert vigorously challenged the proposition that the
presence of a follicular tag indicated forcible removal.
He
maintained that "scientific authority contradicted" this theory.8 The
defense expert further testified that he had telephoned the FBI expert
who had stated that his opinion rested on the "follicular tag" theory.'
3. 474 U.S. 15 (1985).
4. State v. Fensterer, 493 A.2d 959, 960 (Del. 1985), rev'd, 474 U.S. 15
(1985) (per curiam).
5. Delaware v. Fensterer, 474 U.S. 15, 16 (1985) (per curiam).
6. Fensterer,493 A.2d at 964.
7. Id. at 963 (quoting record of trial).
8. Id. at 964.
9. The defense expert testified "that he had spoken by telephone with [the
prosecution expert], who advised him that his conclusion of forcible removal
was based on the presence of the follicular tag." Fensterer,474 U.S. at 17.
CAPITAL UNIVERSITY LAW REVIEW
[22:45
1. Delaware Supreme Court
On appeal the Delaware Supreme Court ruled that the FBI expert's
lack of memory precluded the defense from effectively testing the
This violated the
basis for his opinion by cross-examination.
accused's confrontation rights." According to the court, a Special
Agent from the FBI "can appear to be a highly credible person to the
The court concluded that effective crossaverage lay jury.""
examination depends on the expert committing himself to a basis for
his opinion: '"ithout an acknowledgment of the basis of his opinion,
defense counsel's cross-examination of the Agent was nothing more
than an exercise in futility." 2
2. United States Supreme Court
The U.S. Supreme Court disagreed and reversed per curiam.
According to the Court, "the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination
that is effective in whatever way, and to whatever extent, the defense
might wish."'" Later in the opinion the Court returned to this point,
writing that "the Confrontation Clause is generally satisfied when
the defense is given a full and fair opportunity to probe and expose...
infirmities through cross-examination, thereby calling to the
attention of the factfinder the reasons for giving scant weight to the
witness' testimony. "14
The Court held that a sufficient opportunity was provided at trial
because the defense counsel's cross-examination "demonstrated to
the jury that [the expert] could not even recall the theory on which his
opinion was based. Moreover, through its own expert witness, the
defense was able to suggest to the jury that [the FBI expert] had relied
on a theory which the defense expert considered baseless."' 5
In terms of confrontation analysis, the issue is what constitutes
The Delaware
an "opportunity for effective cross-examination."
10. Fensterer,493 A.2d at 964.
11. Id.
12. HL
13. Fensterer,474 U.S. at 20.
14. Id. at22.
15. Id. at 20. The Court did caution that its decision was limited to the facts
presented: "We need not decide whether there are circumstances in which a
witness' lapse of memory may so frustrate any opportunity for crossexamination that admission of the witness' direct testimony violates the
Confrontation Clause." Id
19931
EXPERT TESTIMONY
Supreme Court believed that the cross-examination was "futile. ' ' 6
The U.S. Supreme Court disagreed. Had the Court permitted full
argument, perhaps it would have probed more deeply into the
underlying issues. Justice Marshall dissented "from this summary
disposition, which has been ordered without affording the parties prior
notice or an opportunity to file briefs on the merits.""' Justice
Blackmun also voted for "plenary consideration," as did Justice
Stevens, who referred to the case as "novel."'"
I will comment on several aspects of this case that the Court should
have explored more thoroughly. 9
3. Lack of documentation
First, a very basic question was never asked: how could a
professional from the FBI Crime Laboratory, the premier forensic
laboratory in this country, have failed to document his examination
in a murder case? Indeed, Fensterer was charged with first degree
murder, a capital offense in many jurisdictions. Does the FBI
Laboratory require proper documentation? If documentation is
required, then why did this expert fail to adhere to this requirement?
Are there quality control procedures to ensure proper documentation?
For example, is a supervisor or fellow examiner required to approve
the report?
There is no valid reason, legal or scientific, that justifies the
failure to document forensic analyses. The American Society of
Crime Laboratory Directors recommends it,' as does the recent DNA
16. On remand the Delaware Supreme Court again held the opinion
inadmissible but on evidentiary, rather than constitutional, grounds. According
to the court: "While a witness' mere lack of memory as to a particular fact may
go only to the weight of that evidence, an expert witness' inability to establish a
sufficient basis for his opinion clearly renders the opinion inadmissible under
D.R.E. 705." Fensterer v. State, 509 A.2d 1106, 1109-10 (Del. 1986).
17. Fensterer,474 U.S. at 23.
18. Il
19. The Court treated the case as a "lapse of memory" case, without
distinguishing between lay and expert witnesses. In the Court's view, witnesses
have lapses of memory, and if these lapses are brought out on crossexamination, the Sixth Amendment is satisfied. The failure to distinguish lay
and expert witnesses' memory lapses also appears in a later case, United States
v. Owens, 484 U.S. 554 (1988). Owens involved a lay witness' lapse of memory.
Citing Fensterer,the Court rejected the defendant's confrontation argument. Id
at 559-60.
20. The American Society of Crime Laboratory Directors (ASCLD) issued
guidelines on casework documentation and reporting. Proper documentation
(continued)
CAPITAL UNIVERSITY LAW REVIEW
[22:45
report published by the National Academy of Sciences." In a different
case, Justice Smith of the Georgia Supreme Court commented:
It is an insult to intelligent people to say that a scientific
test was conducted from which absolutely no notes or records
survive. Unless of course the omission was deliberate.
A basic principle of scientific testing is that careful
records of test procedure and results are to be scrupulously
maintained. A scientific test without an accompanying report
of the testing environment, number of trials, raw results and
analyzed data is in reality no test at all.22
Unfortunately, he was writing in dissent.
Proper documentation serves two important functions.
Documentation is a quality control mechanism, and it may curb
systemic abuses. Crime laboratory personnel testify only "in about
10% of the cases in which they examine evidence,"2 3 and in most of
requires a system of notekeeping that records the basis for any findings,
conclusions, and interpretations, and the retention of all notes, charts,
photographs, or diagrams. "The documentation should be such that a
knowledgeable analyst or supervisor, in the absence of the primary analyst,
would be able to evaluate and interpret the data." ASCLD Guidelines for
ForensicLaboratory Management Practices, 14 CRIME LABORATORY DIG. 39, 43
(1987). Competent laboratory reports must include (1) an "accurate summary
of significant material contained in the case notes," (2) "interpretive information
as well as examination results wherever possible," and (3) identification of "the
analyst(s) and, if appropriate, the testing methodology." IL
21. NATIONAL RESEARCH COUNCIL, DNA TECHNOLOGY IN FORENSIC
SCIENCE 105 (1992) [hereinafter DNA REPORT] ("Case records-such as notes,
worksheets, autoradiographs, and population databanks-and other data or
records that support examiners' conclusions are prepared, retained by the
laboratory, and made available for inspection on court order after review of the
reasonableness of a request.").
22. Law v. State, 307 S.E.2d 904, 908 (Ga. 1983) (Smith, J., dissenting). The
majority ruled that the discovery statute applies only to written, not oral,
reports. Id. at 906.
23. Joseph L. Peterson, Ethical Issues in the Collection, Examination, and
Use of Physical Evidence, in FORENSIC SCIENCE 35, 45 (Geoffrey Davies ed.
1986); see also Joseph L. Peterson et al., The Capabilities,Uses, and Effects of the
Nation's CriminalisticsLaboratories,30 J. FORENSIC SCI. 10, 15 (1985) ("It was
reported that on the average, crime laboratory examiners testified in 8% of drug
cases (the percentage ranged from 0 to 86%) and 10% of criminalistics cases
(the percentage ranged from 0 to 87%) where evidence was examined.").
EXPERT TESTIMONY
1993]
those cases no opposing expert testifies.24 Professor Joseph Peterson,
who has studied crime laboratories extensively, has remarked:
Only a small percentage of the cases in any jurisdiction
go to trial, so the technicians or scientists in the crime
laboratories seldom are called upon to justify their procedures
or conclusions under rigorous cross- examination. I think
the realization that their work will not be reviewed--either by
an independent scientist or by opposing counsel and expert in
court-decreases the care and completeness with which
examiners process evidence.2"
In short, documentation requirements could increase
thoroughness and accuracy of the analyst's findings.
the
Proper documentation can also preclude a number of abuses. The
Journal of Forensic Sciences published a symposium on the ethical
responsibilities of forensic scientists in 1989.26 One article discussed
a number of laboratory reporting practices, including (1)
"preparation of reports containing minimal information in order not
to give the 'other side' ammunition for cross-examination," (2)
''reporting of findings without an interpretation on the assumption
that if an interpretation: is required it can be provided from the
witness box," and (3) "[o]mitting some significant point from a report
to trap an unsuspecting cross-examiner."' 27 These practices could be
curbed, if not eliminated, by the implementation of proper
documentation requirements.
24.
See HARRY
KALVEN, JR.
& HANS
ZEISEL, THE AMERICAN JURY
139
(1966) ("Again, the imbalance between prosecution and defense appears. In 22
percent of the cases the prosecution has the only expert witness, whereas in only
3 percent of the cases does the defense have such an advantage."); NATIONAL
ACADEMY OF
IDENTIFICATION
SCIENCES, ON THE
T
HEORY
AND PRACTICE
OF VOICE
49 (1979) ("A striking fact about the trials involving voicegram
evidence to date is the very large proportion in which the only experts testifying
were those called by the state.").
25. Symposium on Science and the Rules of Legal Procedure, 101 F.R.D.
599, 643 (1983).
26. Symposium: Ethical Conflicts in the ForensicSciences, 34 J. FORENSIC
SCI. 717 (1989). The Journal is the official publication of the American Academy
of Forensic Sciences.
27. Douglas M. Lucas, The Ethical Responsibilitiesof the ForensicScientist:
Exploring the Limits, 34 J. FORENSIC Sdi. 719, 724 (1989). Lucas is the Director
of The Centre of Forensic Sciences, Ministry of the Solicitor General, Toronto,
Ontario.
.52
CAPITAL UNIVERSITY LAW REVIEW
[22:45
4. Discovery
The Fensterercase raises a second issue. The prosecution expert
testified that he had checked his "notes" to determine what method he
had used to reach his conclusion. He did not say that he had checked
the laboratory report.28 The difference is critical; under the present
federal discovery rule, Criminal Rule 16,29 laboratory reports are
discoverable but bench notes are not. The Ninth Circuit so held in
United States v. Iglesias. ° The Fifth Circuit adopted the same
interpretation in a drug case,"' as did the Virginia Supreme Court in a
capital case involving DNA.3 2 The laboratory report often does
nothing more than "summarize the results of an unidentified test
conducted by an anonymous technician."3
Thus, even if the examination had been properly documented, it is
not clear that the defense had a right to pretrial discovery of that
documentation. 4 In Fensterer the defense expert learned of the
follicular tag theory only because he telephoned the prosecution
expert; this theory was not mentioned in the laboratory report.35
28. Delaware v. Fensterer, 474 U.S. 15, 17 (1985) (per curiam).
29. FED. R. CRIM. P. 16(a)(1XD) provides:
Reports of Examinations and Tests. Upon request of a defendant the
government shall permit the defendant to inspect and copy or
photograph any results or reports of physical or mental examinations,
and of scientific tests or results or reports of physical or mental
examinations, and of scientific tests or experiments, or copies thereof,
which are within the possession, custody, or control of the government,
the existence of which is known, or by the exercise of due diligence may
become known, to the attorney for the government, and which are
material to the preparation of the defense or are intended for use by the
government as evidence in chief at the trial.
Id.
30. 881 F.2d 1519, 1523-24 (9th Cir. 1989), cert. denied, 493 U.S. 1088
(1990).
31. United States v. Berry, 636 F.2d 1075, 1082 (5th Cir. 1981).
32. Spencer v. Commonwealth, 384 S.E.2d 785, 791 (Va. 1989) ("The trial
court granted the motion as to the reports, but ruled that 'work notes are not
discoverable.' We agree."), cert. denied, 493 U.S. 1093 (1990).
33. United States v. Bentley, 875 F.2d 1114, 1123 (5th Cir. 1989) (Williams,
J., dissenting).
34. For a discussion of the defects in discovery, see Paul C. Giannelli,
CriminalDiscovery, Scientific Evidence, and DNA, 44 VAND. L. REv. 791 (1991).
35. Telephone interview with Dr. Peter DeForest, Professor of
Criminalistics, John Jay College (Oct. 1, 1992) (expert witness for the defense).
1993]
EXPERT TESTIMONY
5. Confrontation
Fensterer should never have occurred. It is bad science to produce
laboratory results without proper documentation, and it is bad law to
condone such a practice. It is one thing to acknowledge that we often
can do little to prevent memory lapses of lay witnesses; it is quite
another thing to say the same about experts. The failure of a crime
laboratory to document the results of scientific tests is tantamount to
the bad faith destruction of evidence, a due process violation if not a
confrontation infringement.3"
I do not, however, disagree with the result in Fensterer. One
sentence in the opinion is often overlooked, even by the Court in its
later decisions. First, the Court held that the defense had the
opportunity to cross-examine the prosecution expert at trial.
Significantly, the Court added, "Moreover, through its own expert
witness, the defense was able to suggest to the jury that [the FBI expert]
had relied on a theory which the defense expert considered
baseless.""7 If the accused had been afforded an opportunity for
effective cross-examination of the adverse expert (as the Court
believed), why mention the defense expert? The Court never
explained why an accused's right to confront prosecution witnesses is
affected by the presentation of defense witnesses.
This passage demonstrates the critical nexus between pretrial
discovery and effective confrontation. Because the defense was
aware of the prosecution's scientific evidence, it retained its own
expert who reexamined the hair sample. The defense expert was then
called to testify at trial-all in addition to the cross-examination of the
prosecution expert. Pretrial discovery afforded Fensterer a fair
opportunity to "confront" the prosecution's case. Unfortunately, in
many jurisdictions there is no guarantee that adequate pretrial
discovery or the appointment of defense experts will be routinely
provided.38
36. See Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (the bad faith
destruction of evidence violates due process).
37. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
38. In Ake v. Oklahoma, 470 U.S. 68, 83 (1985), the Supreme Court
recognized a limited due process right to the appointment of defense experts for
indigents. Nevertheless, problems persist. "In recent DNA cases in Oklahoma
and Alabama,... the defense did not retain any experts, because the presiding
judge had refused to authorize funds." Peter J. Neufeld & Neville Colman,
When Science Takes the Witness Stand, 262 Sci. AM. 46, 53 (1990).
CAPITAL UNIVERSITY LAW REVIEW
[22:45
B. FederalRule of Evidence 703
Federal Rule of Evidence 703 governs the bases of expert
testimony and raises a different confrontation issue." Under this
rule, expert opinion testimony may be based on three different types of
underlying facts. First, an expert witness may express an opinion
based on personal observations. The Fensterercase involved this type
of basis; the expert personally examined the hair samples. Second,
an expert may express an opinion based on assumed facts supported
by the record, typically in the form of a hypothetical question.
In addition, Rule 703 recognizes a third basis for expert
testimony. It permits an expert to express an opinion based on
information that has not been admitted at trial. The rule provides: "If
of a type reasonably relied upon by experts in the particular field in
forming opinions or inference upon the subject, the facts or data need
not be admissible in evidence." In other words, an expert may rely on
hearsay, even inadmissible hearsay, in reaching an opinion.
1. Confrontation issues
Courts 40 and commentators 41 have recognized that the use of
hearsay evidence as a basis for expert opinion testimony in criminal
39. FED. R. EVID. 703 reads:
The facts or data in the particular case upon which an expert bases
an opinion or inference may be those perceived by or made known to
the expert at or before the hearing. If of a type reasonably relied upon
by experts in the particular field in forming opinions and inferences
upon the subject, the facts or data need not be admissible in evidence.
ICE
40. E.g., United States v. Wright, 783 F.2d 1091, 1101 (D.C. Cir. 1986)
("Confrontation Clause concerns arise where the rules governing expert
testimony are misused in order to bring otherwise inadmissible evidence before
the jury without the opportunity for effective cross-examination.").
41. See ABA SECTION OF LITIGATION, EMERGING PROBLEMS UNDER THE
FEDERAL RULEs OF EVIDENCE, RULE 703 DISCUSSION 176, 181 (2d ed. 1991) ("In
criminal prosecutions the defendant's constitutional right to confront and crossexamine adverse witnesses presents a concern not found in civil cases."); ABA
Criminal Justice Section, Federal Rules of Evidence: A Fresh Review and
Evaluation, 120 F.R.D. 299, 371 (1987) ("The back door introduction of the
contents of a nontestifying expert's report, without producing the author of the
(continued)
1993]
EXPERT TESTIMONY
trials raises confrontation issues. For example, in United States v.
Lawson42 the defense objected to the testimony of a prosecution
psychiatrist who testified that the accused was sane. The expert had
limited personal contact with Lawson and relied on hearsay
information in formulating his opinion. The Seventh Circuit ruled
the testimony admissible.4 3 According to the court, reliance on staff
reports, interviews conducted by other psychiatrists, and background
information from military and prosecution records was "clearly of
the type that psychiatrists would rely upon in making a similar
professional judgment" and satisfied the requirements of Rule 703."4
Although the court rejected the defendant's confrontation
argument, it recognized the cogency of that argument in certain
circumstances: "An expert's testimony that was based entirely on
hearsay reports, while it might satisfy Rule 703, would nevertheless
violate a defendant's constitutional right to confront adverse
witnesses. The Government could not, for example, simply produce a
witness who did nothing but summarize out-of-court statements made
by others."4
The Seventh Circuit's distinction turns on the difference between
an expert who forms an opinion, albeit based in part on the work of
others, and an expert who merely summarizes the work of others.
One expert may not act as a "conduit" for another expert's opinion.
In addition, commentators have been concerned about the jury's use of
this hearsay evidence if it is disclosed at trial-uncross-examined
hearsay admitted through the "back door. '47 Although important,
material, can, in many cases, impinge on the defendant's Sixth Amendment
rights.").
42. 653 F.2d 299 (7th Cir. 1981), cert. denied, 454 U.S. 1150 (1982).
43. Id. at 303.
44. Id. at 302.
45. Id.
46. State v. Towne, 453 A.2d 1133, 1135 (Vt. 1982). In Towne, a
prosecution expert testified that the defendant was sexually disturbed but not
mentally ill. To support his opinion, the expert cited a book that had been
written by his friend. He also testified that he had spoken by telephone with the
author and that the author agreed with his opinion in the case. The Vermont
Supreme Court held that the expert's references to the author did not come
within the rule allowing an expert to base an opinion upon facts not admissible
in evidence but reasonably relied on by experts in the field. Morever, the court
found that admission of the medical opinion of a nontestifying expert violated
the defendant's confrontation rights. Id.
47. Ronald L. Carlson, Experts as HearsayConduits: ConfrontationAbuses
in Opinion Testimony, 76 MINN. L. REV. 859, 868-69 (1992); see Ronald L.
Carlson, Policing the Bases of Modern Expert Testimony, 39 VAND. L. REV. 577
(1986); Ronald L. Carlson, Collision Course in Expert Testimony: Limitations on
(continued)
CAPITAL UNIVERSITY LAW REVIEW
[22:45
these issues distract attention from more critical issues. As Professor
Faigman reminds us, "Experts are conduits not only for hearsay but
for a wide variety of unreliable and inaccurate information."4" A
Second Circuit opinion illustrates the perceptiveness of his comment.
2. Reardon v. Manson
In Reardon v. Manson,49 a toxicologist testified about the identity
of a seized substance (marijuana) based on tests performed by
chemists working under his supervision. The Second Circuit upheld
the practice: "Expert reliance upon the output of others does not
necessarily violate the confrontation clause where the expert is
available for questioning concerning the nature and reasonableness
of his reliance ....
This is particularly true where the defendants
have access to the same sources of information through subpoena or
otherwise."5 0
Affirmative Introduction of Underlying Data, 36 U. FLA. L. REv. 234 (1984);
Paul Rice, Inadmissible Evidence as a Basis for Expert Opinion Testimony: A
Response to Professor Carlson, 40 VAND. L. REV. 583 (1987).
48. David L. Faigman, Commentary: A Response to Professor Carlson;
Struggling to Stop the Flood of UnreliableExpert Testimony, 76 MINN. L. REV.
877, 889 (1992).
49. 806 F.2d 39 (2d Cir. 1986), cert. denied, 481 U.S. 1020 (1987). The case
has a long legal history. The Connecticut Supreme Court upheld the conviction
on appeal. State v. Reardon, 376 A.2d 65, 67 (Conn. 1977). On habeas review,
the federal district court ruled that the defendant's right to confrontation had
been violated. Reardon v. Manson, 491 F. Supp. 982 (D. Conn. 1980). The
Second Circuit Court of Appeals remanded on procedural grounds. Reardon v.
Manson, 644 F.2d 122, 127 (2d Cir. 1981). On remand, the district court once
again found a confrontation violation, Reardon v. Manson, 617 F. Supp. 932 (D.
Conn. 1985), and then the Second Circuit Court of Appeals reversed on the
merits, Reardon, 806 F.2d at 39.
See also United States v. Posey, 647 F.2d 1048, 1051 (10th Cir. 1981);
Commonwealth v. Manning, 435 A.2d 1207, 1211-12 (Pa. 1981) (testimony of
supervising toxicologist who identified PCP based on tests performed under his
direction admitted); Commonwealth v. Gilliard, 446 A.2d 951, 954 (Pa. Super.
Ct. 1982) (testimony of medical examiner based on toxicologist report admitted);
State v. Kreck, 542 P.2d 782, 785-88 (Wash. 1975).
50. Reardon, 806 F.2d at 42. In United States v. Smith, 869 F.2d 348, 355
(7th Cir. 1989), the court wrote:
The Confrontation Clause ... does not forbid reliance at trial by experts
upon material prepared by others. It requires, however, that the
defendant have access to such material, in order that she has an
adequate opportunity to prepare her cross-examination.... It is, of
(continued)
1993]
EXPERT TESTIMONY
There are a number of problems with this decision.
a. "under the supervision"
First, the term "under the supervision" is troublesome. In 1983
Saks and Duizend published a study on the use of scientific evidence.
Part of their investigation involved case studies of different forensic
techniques. The drug case in their study is the Reardon prosecution.
They comment as follows:
In this case, the laboratory in question had three doctoratelevel toxicologists and 22 or 24 less-credentialed chemists.
The volume of tests performed (about 20,000 annually) left the
toxicologist an average of only a few minutes per day to attend
to any given test. Is this adequate involvement to justify
testifying to the findings?5 1
52
In other words, the toxicologist was "supervising" fifty cases a day.
Here, the line between an independent expert and a summary witness
is blurred, if not erased.
An understanding of the laboratory procedures demonstrates how
this blurring occurred." According to the toxicologist, his laboratory
used three different tests to identify marijuana: (1) a microscopic test
to determine the presence of cystolithic hairs that are characteristic of
marijuana,5 4 (2) a chemical color test, and (3) thin layer
course, true that an expert witness may not simply summarize the outof-court statements of others as his testimony.... That is not, however,
what Dr. Nakasone did in this case. He was not . . . merely an
"understudy" for Lieutenant Smrkovski.
Id.
51. MICHAEL J. SAKs & RICHARD VAN DUIZEND, THE USE OF SCIENTIFIC
EVIDENCE IN LITIGATION 49 (1983).
52. Reardon, 617 F. Supp. at 936 ('[Ilt strains credulity to assert that Dr.
Reading could personally 'supervise' some 50 of these cases daily.").
53. "The briefs and the opinions focused on the laboratory procedures,
both technical and administrative, without real evidence of the workloads and
methods, and reached various differing conclusions about the directness of the
supervising toxicologist's observations under the given circumstances." SAKS &
-VAN DuIZEND, supra note 51, at 49.
54. Bruce Stein et al., An Evaluation of Drug Testing Procedures Used by
Forensic Laboratoriesand the Qualifications of Their Analysts, 1973 WIS. L.
REV. 727, 771 ("Cystolith hairs are small hairs on the leaves resembling 'bear
claws.' ... The major difficulty with this test is that many plants have cystolith
(continued)
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[22:45
chromatography (TLC).5" He admitted, however, that his opinion was
not based on the first test; he "never personally examined the
substance under the microscope."" He further testified that the TLC
and color tests were sufficient to identify marijuana. In other words,
a microscopic test that was part of his laboratory's protocol and that he
directed his subordinate to perform was unnecessary!
The toxicologist also explained that the TLC and color tests "were
conducted out of his immediate presence by laboratory chemist under
his supervision" and his testimony was based "on oral or handwritten reports from [the] chemists.""7 Therefore, he lacked personal
knowledge about issues such as the chain of custody and adherence to
proper procedures during the time the subordinate had possession of
the evidence."8 The toxicologist's testimony demonstrates that the
defendant was confronting the wrong witness.
b. misleading
Second, the procedure sanctioned in Reardon misleads the jury
into believing that a well-trained toxicologist with a Ph.D. performed
the various tests when that was not the case. The federal district court
noted that substitution of the toxicologist for the chemist had become
"routine" in Connecticut. According to the court:
[I]t is likely that the State was hoping to take strategic
advantage of their absence. By not producing the actual
chemists, the State effectively screened these less- experienced
witnesses from the rigors of cross-examination. Moreover, in
their place, the State substituted a witness with great
experience both on the witness stand and in the practice of
forensic medicine, whose testimony is buttressed by his
doctorate degree.
9
hairs.... In the subclass dicotyledon.... 600 species ... contained cystolith
hairs.").
55. State v. Reardon, 376 A.2d 65, 66 (Conn. 1977) ("Dr. Reading testified
at length ... as to the manner in which drug identifications were conducted in
the state toxicological laboratory in this and other similar cases. A microscopic
test, a thin-layer chromatography test, and a chemical test were conducted.").
56. Reardon v. Manson, 491 F. Supp. 982, 984 (D. Conn. 1985).
57. Id
58. "As to other tests where he himself observed the results of the
experiments, he still was required to assume that the substances tested were in
fact the substances in question, that the tests had been performed correctly, and
that the appropriate standards had been used." Id. at 985.
59. Id. at 987.
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EXPERT TESTIMONY
This practice may be more misleading than it first appears. The
Second Circuit refers to the subordinates as "chemists," 0 which one
might assume is someone with a bachelor's degree in chemistry. But
that is not clear. The district court pointed out that the "record is
absolutely devoid of any evidence as to the qualifications of the
chemists who actually performed the tests."6 ' A more accurate
description may have been the one used by Saks and Duizend, who
62
referred to them as "technicians."
The Reardon case was tried in the mid-1970s. A 1973 nationwide
survey of drug examiners revealed that 30 of 106 analysts surveyed
did not have degrees in chemistry or chemistry-related areas, and
over 55% of them had not taken courses in botany, pharmacognosy,
drug assay, or spectroscopy. 63 In one case, a forensic chemist who
testified as an expert more than 2500 times over a forty-three-year
period was finally challenged by an enterprising defense attorney:
[The expert] admitted that not only did he not have a college
degree, but that he had never even finished high school. He
claimed that heroin was an alkaloid, which it is, but did not
remember what an alkaloid was. He could not draw the
structure of heroin or benzene, one of the commonest and
simplest organic molecules. He further admitted that he did
not know whether he understood anything whatsoever about
the chemical structure of heroin. In addition, he could not
explain any single chemical reaction about which he had
testified.6 4
In Reardon, what was represented as the work of a Ph.D.
toxicologist may in fact have been the work of a poorly trained
technician.
60.
61.
62.
63.
64.
Reardon, 806 F.2d at 41.
Reardon, 617 F. Supp. at 935.
SAKs & VAN DUIzEND, supra note 51, at 49.
Stein et al., supra note 54, at 730-31.
Id. at 728.
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[22:45
c. nonspecificity
Third, the toxicologist's testimony that marijuana can be
positively identified by TLC is questionable. At the time Reardon was
tried, this test had been criticized by a number of chemists. One wrote,
"The critical question is whether TLC is a specific test. The answer
is no."" Other chemists agreed. 6 In 1979, the Minnesota Supreme
Court upheld a trial court's ruling that common laboratory tests for
marijuana failed to establish the identity of a seized substance.6 7 My
65. Id. at 749.
66. Shapiro & Ackerman have explained why TLC, which was originally
used as a separation (and not an identification) technique, is not specific:
The probability that two different substances (out of the domain of two
million) will have the same Rf value in a single TLC experiment is high,
and such an experiment does not constitute proof of identity. The
typical TLC plate is about four inches long, which means that
statistically, assuming an even distribution, 500,000 compounds will fall
within one of the inches; 250,000 per 112 inch; 125,000 per 14 inch;
62,500 per 118 inch; 31,250 per 1/16 inch; 15,625 per 1/32 inch; and 7,812
per 1164 inch. In other words, statistically, again assuming an even
distribution, 7,812 compounds could have the same Rf as
amphetamine.
PAUL C. GIANNELLI & EDWARD J. IMWINKELRIED, SCIENTIFIC EVIDENCE 944
(1986) (quoting R. SHAPIRO & J. ACKERMAN, A GUIDE TO THE ANALYTICAL
MANUAL 6 (1975)).
The organic chemist Robert Shapiro ... reports that in cases alleging
illegal possession of controlled substances, prosecution chemists
sometimes use tests that are suitable only for screening, not for specific
identification of a substance. That is, the test is able to reduce the
possibilities from three million compounds to only a half-million, or
even to 100,000. On the basis of a test that shows only that the
compound in question is a member of a sizable class, some forensic
chemists are prepared to take the stand and state their opinion that the
substance is methamphetamine (or THC, or cocaine, or whatever).
Often, such testimony goes unchallenged by the defense.... Shapiro
gives several examples of cases where the drugs in fact turned out not
to be what the prosecution alleged and the prosecution's forensic
chemist testified they were.
SAKS &VAN DuizEND, supra note 51, at 7-8.
67. State v. Vail, 274 N.W.2d 127, 130 (Minn. 1979) ("The DuquenoisLevine test [color test] and thin layer chromatography are only screening tests
(continued)
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EXPERT TESTIMONY
co-author, Professor Imwinkelried, believes that the nonspecificity of
all these tests is so well-established that this fact is subject to judicial
notice as an indisputable scientific fact.68 This important issue was
apparently not raised.
d. discovery
Finally, discovery is once again a problem. The Second Circuit
justified its Reardon holding in part on the defendant's pretrial
access to the underlying data: "This is particularly true where the
defendants have access to the same sources of information through
subpoena or otherwise."69 The "otherwise" presumably refers to
discovery but, as discussed above, such discovery may not exist. In
federal practice, discovery may be limited to a laboratory report with a
one-line conclusion. The report will not specify what tests were used.
It will not reveal that two analysts participated in the examination.
Nor will the qualifications of either be disclosed.
Federal Rule 703 and its companion Rule 70570 are premised on
adequate pretrial discovery. The Advisory Committee's Notes
explicitly acknowledge this. According to the drafters, the Rule
assumes that the cross-examiner has the advance knowledge
which is essential for effective cross-examination. . . .Rule
26(b)(4) of the Rules of Civil Procedure, as revised, provides
for substantial discovery in this area, obviating in large
measure the obstacles which have been raised in some
instances to discovery of findings, underlying data, and even
the identity of the experts.7'
Inexplicably, the Committee's Note neglects to mention anything
about the criminal rule on discovery, which provides for far less
not adequately specific to identify marijuana."); see also State v. Wind, 208 N.W.
2d 357, 361 (Wis. 1973) (Although not specific for marijuana, color test and TLC
are admissible; however, they are insufficient standing alone to support
conviction.).
68. GIANNELLI & IMWINKELRIED, supra note 66, at 1007 ("[T~he
nonspecific status of such tests should be judicially noticed.").
69. Reardon v. Manson, 806 F.2d 39, 42 (2d Cir. 1986).
70. FED. R. EVID. 705 provides: "The expert may testify in terms of opinion
or inference and give reasons therefor without prior disclosure of the
underlying facts or data, unless the court requires otherwise. The expert may in
any event be required to disclose the underlying facts or data on crossexamination."
71. FED. R. EVID. 705 advisory committee's note.
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discovery than the civil rule:
[22:45
no witness list, no depositions, no
interrogatories, and no requirement to prepare a report.
A recent proposed amendment to Federal Rule 702, the basic rule
governing experts, is similarly deficient.7 2 Under this proposal,
expert testimony in civil cases is not admissible if the offering party
has not complied with the discovery provisions of the Civil Rules of
Procedure. The rule is silent on criminal cases.
e.
summary
Here, as in Fensterer, we have bad science, shoddy laboratory
procedures, inadequate discovery, and a confrontation issue. The
critical question is not whether the jury is exposed to hearsay, but
whether the jury is exposed to misleading and unreliable scientific
evidence. As this critique of the Reardon case demonstrates, the jury
may be exposed to evidence of dubious reliability and the defendant
often lacks the discovery necessary for effective confrontation
through cross-examination at trial.
C. Confrontationas a PretrialRight
The Supreme Court in Fenstereradopted the correct test: the right
of confrontation guarantees "an opportunity for effective crossexamination."73 Unfortunately, the Court failed to appreciate the
72. The proposed amendment reads:
Rule 702. Testimony by Experts
Testimony providing scientific, technical, or other specialized
information, in the form of an opinion or otherwise, may be permitted
only if (1) the information is reasonably reliable and will substantially
assist the trier of fact to understand the evidence or to determine a fact
in issue, and (2) the witness is qualified as an expert by knowledge, skill,
experience, training, or education to provide such testimony. Except
with leave of court for good cause shown, the witness shall not testify
on direct examination in any civil action to any opinion or inference, or
reason or basis therefor, that has not been seasonably disclosed as
required by Rules 26(a)(2) and 26(e)(1) of the Federal Rules of Civil
Procedure.
Proposed Amendments to the FederalRules of Evidence, 137 F.R.D. 63, 156
(1991).
73. Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
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EXPERT TESTIMONY
problems associated with applying this standard to experts. The crossexamination of an expert "poses a formidable task; it is the rare
attorney who knows as much as the expert." 4 A forensic scientist
agrees: "If cross-examination is to be the only way to discover
misleading or inadequate testimony by forensic scientists, then too
much is being expected from it."75
Full pretrial discovery is the key. Effective cross-examination
depends on pretrial preparation, which, in turn, depends on advance
knowledge that expert testimony will be presented. In 1970, the
drafters of the ABA Criminal Justice Standards correctly noted, "The
need for full and fair disclosure is especially apparent with respect to
scientific proof and the testimony of experts. This sort of evidence is
practically impossible for the adversary to test or
rebut at trial without
76
an advance opportunity to examine it closely.
1.
Pennsylvania v. Ritchie
Nonetheless, the Supreme Court has not recognized the
applicability of the Confrontation Clause to pretrial procedures. In
Pennsylvania v. Ritchie, 7 the defendant was charged with raping and
sexually abusing his daughter. The case was initially referred to the
state youth services agency. Prior to trial, Ritchie attempted to
subpoena the agency's records. A plurality of the Court took the
position that,
the right to confrontation is a trial right, designed to prevent
improper restrictions on the types of questions that defense
counsel may ask during cross-examination. . . . The ability
74. United States v. Wilson, 361 F. Supp. 510, 513 (D.Md. 1973); see also
State v. Dean, 307 N.W.2d 628, 650-51 (Wis. 1981) ("[C]ross-examination...
may not in all situations provide a sufficient basis for the jury to assess the
competence of the [expert] witness and the merits of the test.").
75. Lucas, supra note 27, at 724. One commentator rejects, almost out of
hand, the argument that the "searing test of a rigorous cross-examination" is a
sufficient safeguard in this context. He writes: "All that one can say to such an
argument is that the lawyers who make it should know better, and, if they do
know better, as they must if they are experienced trial lawyers, they should have
more conscience than to perpetuate such a myth." Barton Ingraham, The
Ethics of Testimony: Conflicting Views on the Role of the Criminologistas
Expert Witness, in EXPERT WITNESSES 179, 183 (P. Anderson & L. Winfree eds.
1987).
76. ABA STANDARDS RELATING TO DISCOVERY AND PROCEDURE BEFORE
TRIAL 66 (Approved Draft 1970).
77. 480 U.S. 39 (1987) (plurality opinion).
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[22:45
to question adverse witnesses, however, does not include the
power to require the pretrial disclosure of any and all
information that might be useful in contradicting
unfavorable testimony. 8
The plurality then quoted Fensterer's statement concerning the
"opportunity for effective cross-examination". This was followed by
a quote from another case: "[E]xcept in 'extraordinary cases,
79 no
inquiry into 'effectiveness' [of cross-examination] is required.1
2. Wayne Williams prosecution
The Wayne Williams prosecution illustrates why the plurality's
position in Ritchie is wrong. 0 Williams was tried for the murder of
two of the thirty young black males killed in Atlanta over a decade
ago. The trial turned on fiber evidence, an "essential part of 8this
case," according to the FBI expert who testified for the prosecution. '
One of the prosecution's fiber experts was Barry Gaudette, who
worked for the Royal Canadian Mounted Police. He examined fiber
and hair samples for eleven days and then testified from personal
notes. He had not prepared a written report, so the Georgia Supreme
Court ruled that the defense was not entitled to discovery. 2 The same
result is possible in federal practice.' The Williams dissent rejoined:
78. Id. at 52-53; see also United States v. Bagley, 473 U.S. 667, 674-78 (1985)
(court of appeals based its decision on right of confrontation but Supreme Court
rejected this approach in favor of a due process analysis).
79. Ritchie, 480 U.S. at 53 (quoting Ohio v. Roberts, 448 U.S. 56, 73 n.12
(1980)). The Ritchie Court did recognize a due process right to disclosure of
exculpatory evidence.
80. Williams v. State, 312 S.E.2d 40 (Ga. 1983).
81.
Harold A. Deadman, Fiber Evidence and the Wayne Williams Trial
(Part1), 53 F.B.I. LAW ENFORCEMENT B ULL. 13 (1984).
The fiber evidence was critical for two reasons: it connected Williams with
the crime scenes of the two homicides for which he was charged; and, perhaps
more importantly, it connected him with ten other murders, evidence of which
was introduced as "other acts" evidence.
82. Williams, 312 S.E.2d at 50; see also Law v. State, 307 S.E.2d 904, 906-07
(Ga. 1983) (discovery statute applies only to written, not oral, reports).
83. Oral reports are not discoverable under FED. R. CRIM. P. 16(a)(2).
United States v. Shue, 766 F.2d 1122, 1135 (7th Cir. 1985), cert. denied, 484 U.S.
956 (1987). In Shue, the defendant was not entitled to the verbal report of an
FBI photographic expert who compared pictures of Shue with those of a bank
robber. Id. Unknown to the defense, the expert made the comparison the night
before he testified. Id.
(continued)
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EXPERT TESTIMONY
By allowing an expert to forgo delivery of a full written
report and to later testify orally where, as here, he had ample
time to prepare such a written report and conducted tests too
complex to remember unaided, we permit ever more egregious
injustice and violation of the intent [of the discovery statute],
which is to put into the defendant's hands these reports with
sufficient time before trial to enable him to check and
challenge their content.8 4
Williams was a discovery case, not a confrontation case.
Nevertheless, it illustrates the point that the defense was not provided
an opportunity for effective cross-examination. Similarly, in DNA
or neutron activation cases"5 there cannot be an opportunity for
effective confrontation if the accused does not learn until trial that
scientific evidence will be offered by the prosecution. The National
Academy of Science's report commented, "The prosecutor has a
strong responsibility to reveal fully to defense counsel and experts
retained by the defendant all material that might be necessary in
evaluating [DNA] evidence." 6 Whether the evidence is fiber, DNA,
or activation analysis, inadequate discovery results in the denial of
effective confrontation.
Similarly, a police officer in United States v. Johnson, 713 F.2d 654, 659
(11th Cir. 1983), cert. denied, 465 U.S. 1030 (1984), testified as an Emergency
Medical Technician without notice to the defense. Although the defense argued
that the testimony was "highly prejudicial" because it contradicted an important
aspect of the defense case, the Eleventh Circuit Court of Appeals merely noted
that there is no right to a witness list and Rule 16 was not implicated because "no
...
reports were made in this case." Id.
84. Williams, 312 S.E.2d at 100 (Smith, J., dissenting).
85. In United States v. Stifel, 433 F.2d 431, 441 (6th Cir. 1970), cert. denied,
401 U.S. 994 (1971), the Sixth Circuit Court of Appeals held that because of the
expense associated with neutron activation analysis (NAA), the government
would be responsible for providing NAA to indigent defendants: "[I]f the
government sees fit to use this time consuming, expensive means of factfinding,
it must both allow time for a defendant to make similar tests, and in the instance
of an indigent defendant, a means to provide for payment for same."
In a subsequent collateral proceeding Stifel's conviction was vacated, in
part, because the prosecution had failed to disclose the results of NAA tests that
its expert had conducted in connection with the case. United States v. Stifel, 594
F. Supp. 1525, 1543 (N.D. Ohio 1984). The court wrote that "had the defense
known of the November 1968 tests performed by [the expert] on tape obtained
from Plymouth Rubber Company, it could have used this evidence to further
impeach the credibility of [the expert's] scientific methods." Id.
86.
DNA REPORT, supra note 21, at 146.
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[22:45
3. The constitutionalright to discovery
Whether the Supreme Court will ever accept this position is
another matter. ' The Court has consistently resisted efforts to
constitutionalize discovery practice. According to the Court, "There
is no general constitutional right to discovery in a criminal case.""8
The only exception is the Brady rule, which is based on due process
and is limited to exculpatory evidence. 9
Ritchie, however, remains only a plurality view. In a concurring
opinion, Justice Blackmun, who cast the deciding vote, disagreed with
the plurality: "In my view, there might well be a confrontation
violation if, as here, a defendant is denied pretrial access to
information that would make possible effective cross-examination of
a crucial prosecution witness."90 In dissent Justices Brennan and
Marshall agreed:
The creation of a significant impediment to the conduct of
cross-examination thus undercuts the protections of the
Confrontation Clause, even if that impediment is not erected
at the trial itself. In this case, the foreclosure of access to prior
statements of the testifying victim deprived the defendant
of
91
material crucial to the conduct of cross-examination.
Several other cases may be viewed as supporting a right to pretrial
discovery of material central to effective cross-examination.
Professor Haddad has noted that an earlier confrontation case, Smith
v.Illinois,9" appeared "to create an opening for the Court to use the
confrontation clause to constitutionalize criminal discovery."9 3 In
Smith, a key prosecution witness used a pseudonym when testifying.
87. Professor Haddad has concluded that after Ritchie "the Confrontation
Clause appears to be a dead letter in the area of pretrial discovery." James B.
Haddad, The Future of Confrontation Clause Developments: What Will
Emerge When the Supreme Court Synthesizes the Diverse Lines of
ConfrontationDecisions?,81 J. CRIM. L. & CRIMINOLOGY 77, 96 (1990). As a
matter of prediction, he may be right.
88. Weatherford v. Bursey, 429 U.S. 545, 559 (1977).
89. See Brady v. Maryland, 373 U.S. 83 (1963); See also United States v.
Bagley, 473 U.S. 667 (1985).
90. Pennsylvania v. Ritchie, 480 U.S. 39, 61-62 (1987).
91. Id. at 71. Justices Stevens and Scalia dissented on procedural grounds.
Id. at 72-78.
92. 390 U.S. 129 (1968).
93. Haddad, supra note 87, at 88.
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EXPERT TESTIMONY
The trial court precluded the defense from eliciting the witness' true
name and address. This, according to the Supreme Court, violated the
Sixth Amendment. The Court wrote, "The witness' name and
address open countless avenues of in-court examination and out-ofcourt investigation. To forbid this most rudimentary inquiry at the
threshold is effectively to emasculate the right of cross-examination
itself.""
Moreover, there is an important relationship between the right to
counsel and the right of confrontation9" as emphasized in United
States v. Wade.9 6 The Court held that the right to counsel applied to
postindictment eyewitness identification procedures.9 7 Counsel was
required at the lineup to "assure a meaningful confrontation at
trial."9" The Court wrote:
Insofar as the accused's conviction may rest on a
courtroom identification in fact the fruit of a suspect pretrial
identification which the accused is helpless to subject to
effective scrutiny at trial, the accused is deprived of that right
of cross-examination which is an essential safeguard to his
right to confront witnesses against him. 99
Although the Court has treated Wade as a "right to counsel" case, °0° the
confrontation aspect dominates the opinion.'
But even as a right to
counsel case, it indicates that the effectiveness of counsel in
94. Smith, 390 U.S. at 131 (emphasis added).
95. In Pointer v. Texas, 380 U.S. 400, 406-08 (1965), the Court ruled that the
defendant's right of confrontation had been violated because a preliminary
hearing transcript had been admitted against him at trial. Pointer had not been
represented by counsel at the preliminary hearing. The testimony "had not been
taken at a time and under circumstances affording petitioner through counsel
an adequate opportunity to cross-examine" the prosecution witness. Id. at 407
(emphasis added).
96. 388 U.S. 218 (1967).
97. Id. at 237.
98. Id. at 235.
99. Id.
100. See United States v. Ash, 413 U.S. 300 (1973); Kirby v. Illinois, 406 U.S.
682 (1972).
101. 1 WAYNE R. LAFAvE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE
§7.3(a), at 562 (1984) ("Such language gave support to an interpretation of
Wade as being grounded in the Sixth Amendment right of confrontation and
cross-examination, with counsel being required simply to give sufficient
protection to that other right.").
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[22:45
"confronting" trial testimony depends, at least in some situations, on
counsel's pretrial access to prosecution evidence.
The Wade Court also distinguished eyewitness identification
procedures from the scientific analysis of physical evidence:
The Government characterizes the lineup as a mere
preparatory step in the gathering of the prosecution's evidence,
not different-for Sixth Amendment purposes-from various
other preparatory steps, such as systemized or scientific
analyzing of the accused's fingerprints, blood sample,
clothing, hair, and the like. We think there are differences
which preclude such stages being characterized as critical
stages at which the accused has the right to the presence of his
counsel. Knowledge of the techniques of science and
technology is sufficiently available, and the variables in
techniques few enough, that the accused has the opportunity
for a meaningful confrontation of the Government's case at
trial through the ordinaryprocesses of cross-examination of
the Government's expert witnesses and the presentation of the
evidence of his own experts. The denial of a right to have his
counsel present at such analyses does not therefore violate the
Sixth Amendment; they are not critical stages since there is
minimal risk that his counsel's absence
at such stages might
10 2
derogate from his right to a fair trial.
I agree with the Court's reasoning, with one addendum. While
the scientific techniques used in criminal prosecutions may have
been "few enough" in 1967, that is not true today. Numerous new
techniques have been relied upon in criminal prosecutions since
Wade was decided.
DNA, neutron activation analysis, atomic
absorption, electrophoretic blood testing, and scanning electron
microscopy are but a few. More importantly, this passage assumes
pretrial notice. Without pretrial notice, "knowledge of the techniques
of science and technology" would not be "sufficiently available," nor
would the accused have an opportunity to present "his own experts."
II. ADMISSIBILITY OF LABORATORY REPORTS
The second major confrontation issue addressed by this paper is
the admissibility of laboratory reports. 0
Laboratory reports are
102. Wade, 388 U.S. at 227-28 (emphasis added).
103. For discussions of the relationship between the hearsay rule and the
Confrontation Clause, see 4 DAVID W. LOUISELL & CHRISTOPHER B. MUELLER,
FEDERAL EVIDENCE § 418 (1980); 4 JACK B. WEINSTEIN & MARGARET A. BERGER,
(continued)
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EXPERT TESTIMONY
typically offered in evidence as either business records"" or public
records, 0 5 both of which are recognized exceptions to the hearsay
rule. 106
The U.S. Supreme Court has not addressed the issue of whether
such reports are constitutionally admissible,' 7 and the lower courts
are divided. Prior to Ohio v. Roberts,' a number of courts rejected
% 800[04] (1992); Michael H. Graham, The
ConfrontationClause, The HearsayRule, and Child Sexual Abuse Prosecutions:
The State of the Relationship, 72 MINN. L. REV. 523 (1988); Laird C.
Kirkpatrick, Confrontation and Hearsay: Exemptions from the Constitutional
UnavailabilityRequirement, 70 MINN. L. REV. 665 (1986); Roger W. Kirst, The
ProceduralDimension of Confrontation Doctrine, 66 NEB. L. REV. 485 (1987);
Peter Westen, The Future of Confrontation, 77 MICH. L. REV. 1185 (1979); Peter
Westen, Confrontationand Compulsory Process:A Unified Theory of Evidence
for CriminalCases, 91 HARV. L. REV. 567 (1978).
104. See FED. R. EVID. 803(6) ("Records of regularly conducted activity").
105. See FED. R. EVID. 803(8) ("Public records and reports").
106. Whether lab reports satisfy the requirements of these exceptions is a
debatable issue. A leading federal case, United States v. Oates, 560 F.2d 45, 84
(2d Cir. 1977), ruled lab reports inadmissible on evidentiary grounds. However,
it is not clear that Oates is the majority rule in this country.
This paper considers only the constitutional issues that arise in admission of
lab reports. For a discussion of the evidentiary issues, see GIANNELLI &
IMWINKELRIED, supra note 66, at ch. 6; Paul C. Giannelli, The Admissibility of
Laboratory Reports in Criminal Trials: The Reliability of Scientific Proof, 49
Oi o ST. L.J. 671 (1988).
107. In Diaz v. United States, 223 U.S. 442, 450 (1912), the Court stated in
dictum that an autopsy report "could not have been admitted without the
WEINSTEIN's EVIDENCE
consent of the accused . . . because
the accused was entitled to meet the
witnesses face to face." This aged dictum lacks persuasive value.
108. 448 U.S. 56 (1980).
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[22:45
the constitutional argument," 9 while others had accepted it."' This
division continues today. Some courts have found confrontation
violations,"' while others have not." 2
109. Eg., Kay v. United States, 255 F.2d 476, 480-81 (4th Cir. 1958) (blood
alcohol report), cert. denied, 358 U.S. 825 (1958); United States ex rel. Lurry v.
Johnson, 378 F. Supp. 818, 822 (E.D. Pa. 1974) (hospital record of rape victim
examination), affd, 510 F.2d 971 (3d Cir. 1975); Robertson v. Cox, 320 F. Supp.
900, 900 (W.D. Va. 1970) (lab report identifying seminal fluid); Henson v. State,
332 A.2d 773, 775 (Del. 1975) (hospital record of rape victim examination);
Grover v. State, 398 A.2d 528, 531 (Md. Ct. Spec. App. 1979) (autopsy report);
Commonwealth v. Franks, 270 N.E.2d 837, 839-40 (Mass. 1971) (hospital report
identifying sperm); Commonwealth v. Harvard, 253 N.E.2d 346, 351-52 (Mass.
1969) (marijuana report); State v. Larochelle, 297 A.2d 223, 226 (N.H. 1972)
(breathalyzer results); Burleson v. State, 585 S.W.2d 711, 712-13 (Tex. Crim.
App. 1979) (autopsy report); Robertson v. Commonwealth, 175 S.E.2d 260, 262
(Va. 1970) (seminal fluid report); State v. Kreck, 542 P.2d 782, 785-86 (Wash.
1975) (blood test report).
110. E.g., Stewart v. Cowan, 528 F.2d 79, 85 (6th Cir. 1976) (ballistics
report); Kienlen v. United States, 437 F.2d 843, 848-49 (10th Cir. 1971)
(psychiatric report); Phillips v. Neil, 452 F.2d 337, 348 (6th Cir. 1971)
(psychiatric report), cert. denied, 409 U.S. 884 (1972); People v. Johnson, 296
N.E.2d 763, 768 (1i1. App. Ct. 1973) (psychiatric report); Gregory v. State, 391
A.2d 437, 454 (Md. Ct. Spec. App. 1978) (psychiatric report); State v. Russell,
317 A.2d 781, 782 (N.H. 1974) (marijuana report); Commonwealth v. McCloud,
322 A.2d 653, 657 (Pa. 1974) (autopsy report; state constitution); State v.
Henderson, 554 S.W.2d 117, 122 (Tenn. 1977) (LSD and marijuana report).
111. E.g., Pickett v. Bowen, 798 F.2d 1385, 1387 (11th Cir. 1986) (admission
of medical report violated right of confrontation); United States v. McClintock,
748 F.2d 1278, 1290-92 (9th Cir. 1984) (reports on the value of gems), cert.
denied, 474 U.S. 822 (1985); Stevens v. Bordenkircher, 746 F.2d 342, 348 (6th
Cir. 1984) (death certificate); Grantham v. State, 580 So. 2d 53, 58 (Ala. Crim.
App. 1991) (marijuana report); Moon v. State, 478 A.2d 695, 702-04 (Md. 1984)
(hospital report of alcohol test), cert. denied, 469 U.S. 1207 (1985); In re J.H., 581
A.2d 1347, 1353 (N.J. Super. Ct. App. Div. 1990) (cocaine report).
112. E.g., Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) (autopsy
report), cert. denied, 111 S. Ct. 1695 (1991); United States v. Baker, 855 F.2d
1353, 1360 (8th Cir. 1988) (drug report), cert. denied, 490 U.S. 1069 (1989);
United States v. DeWater, 846 F.2d 528, 530 (9th Cir. 1988) (intoxilyzer test
report); United States v. Bernard S., 795 F.2d 749, 756 (9th Cir. 1986) (admission
of medical records did not violate right of confrontation because records were
of peripheral significance); United States v. Vietor, 10 M.J. 69, 70 (C.M.A. 1980)
(marijuana report); State v. Russo, 485 A.2d 1335, 1339-40 (Conn. App. Ct. 1985)
(hospital report); Howard v. United States, 473 A.2d 835, 840 (D.C. 1984)
(heroin report); State v. Smith, 323 S.E.2d 316, 318 (N.C. 1984) (breath tests
affidavit); Commonwealth v. Kravontka, 558 A.2d 865, 870 (Pa. Super. Ct. 1989)
(blood-alcohol test); State v. Sosa, 800 P.2d 839, 844 (Wash. Ct. App. 1990)
(heroin report).
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A. Hearsay and Confrontation
A hearsay declarant is, in effect, a "witness against" the accused.
A rigid application of this view could preclude the prosecution from
introducing any hearsay statement, notwithstanding the applicability
of a recognized hearsay exception. The Supreme Court has never
accepted this interpretation because it "would abrogate virtually every
hearsay exception, a result long rejected as unintended and too
extreme."113
The Confrontation Clause also could be interpreted as requiring
only the right to cross-examine in-court witnesses and not out-ofcourt declarants. Under this view, all hearsay exceptions would
satisfy constitutional requirements. The Supreme Court also has
rejected this view. Although the Court has recognized that the
Confrontation Clause and the hearsay rule "stem from the same
roots," it "has never equated the two.""' 4
Instead of either of these two approaches, the Court has attempted to
steer a middle course, a task that often has proved elusive. As
McCormick's treatise notes, "A discussion of constitutional
limitations upon the use of hearsay might well commence with the
observation that their outline is somewhat less than clear."'1 5
B. Ohio v. Roberts
In Roberts the Court identified two values underlying the
Confrontation Clause: the "Framers' preference for face-to-face
113. Ohio v. Roberts, 448 U.S. 56, 63 (1980).
114. Dutton v. Evans, 400 U.S. 74, 86 (1970). The Court has also written:
While it may readily be conceded that hearsay rules and the
Confrontation Clause are generally designed to protect similar values, it
is quite a different thing to suggest that the overlap is complete and that
the Confrontation Clause is nothing more or less than a codification of
the rules of hearsay and their exceptions as they existed historically at
common law. Our decisions have rever established such a congruence;
indeed, we have more than once found a violation of confrontation
values even though the statements in issue were admitted under an
arguably recognizedhearsay exception.... The converse is equally
true: merely because evidence is admitted in violation of a longestablished hearsay rule does not lead to the automatic conclusion that
confrontation rights have been denied.
California v. Green, 399 U.S. 149, 155-56 (1970).
115. See MCCORMICK ON EVIDENCE § 252, at 749 (3d ed. 1984).
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[22:45
accusation" and an "underlying purpose to augment accuracy in the
factfinding process."1 6 From these values, the Court derived a twopronged analysis that focused on (1) the unavailability of the
declarant and (2) the reliability of the hearsay statement. The Court
wrote:
In sum, when a hearsay declarant is not present for crossexamination at trial, the Confrontation Clause normally
requires a showing that [the declarant] is unavailable. Even
then, his statement is admissible only if it bears adequate
"indicia of reliability." Reliability can be inferred without
more in a case where the evidence falls within a firmly rooted
hearsay exception. In other cases, the evidence must be
excluded, at least absent a showing of particularized
guarantees of trustworthiness." 7
This summation of confrontation requirements immediately
raised problems.
Roberts involved the admissibility of a
preliminary hearing transcript as former testimony, a hearsay
exception that traditionally required a showing of unavailability.
Most hearsay exceptions, however, do not require such a showing. Did
the Court intend to impose an unavailability requirement on every
exception?
Professor Lilly commented,
"Beneath [Roberts']
apparently orthodox disposition . . .lies an interpretation of possibly
far-reaching significance."1"'
1. Unavailability requirement
This two-pronged approach, requiring both reliability and
unavailability, was soon modified. United States v. Inadi,"9 which
involved the coconspirator exception to the hearsay rule, 20 limited
Roberts' unavailability requirement to cases involving the
introduction of former testimony. According to the Court, Roberts
116. Roberts, 448 U.S. at 65.
117. Id. at 66.
118. Graham C. Lilly, Notes on the Confrontation Clause and Ohio v.
Roberts, 36 U. FLA. L. REV. 207, 224 (1984). See also Randolph N. Jonakait,
Restoring the Confrontation Clause to the Sixth Amendment, 35 U.C.L.A. L.
REV. 557, 558 (1988) (The Roberts "framework was immediately
controversial.").
119. 475 U.S. 387 (1986).
120. The federal version of the coconspirator exemption is found in Federal
Rule of Evidence 801(d)(2)(E) ("a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy").
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EXPERT TESTIMONY
should not be read "to stand for the radical proposition that no out-ofcourt statement can. be introduced by the government without a
showing that the declarant is unavailable."12 1 In 1992 the Court
reaffirmed this position in White v. Illinois:122 under Roberts,
unavailability is a requirement "only when the challenged out-ofcourt statements were made in the course of a prior judicial
proceeding."' 2' Thus, despite the clear language in Roberts,
declarant unavailability may rarely be required.
In these cases, the Court established blanket rules dispensing
with the unavailability requirement for at least some hearsay
exceptions-the coconspirator exception in Inadi and the excited
utterance 124 and medical diagnosis exceptions 2 in White. The Court
offered two rationales for these rulings.
a. "better evidence" argument
First, the Court reasoned that the coconspirator, excited utterance,
and medical diagnosis exceptions differ from the former testimony
exception at issue in Roberts. According to the Inadi Court, unlike
former in-court testimony, coconspirator statements "provide
evidence of the conspiracy's context that cannot be replicated, even if
the declarant testifies to the same matters in court.""2 Similarly, the
White Court noted that excited utterances and statements made for the
121.
Inadi,475 U.S. at 394. The Court also wrote:
Roberts should not be read as an abstract answer to questions not
presented in that case, but rather as a resolution of the issue the Court
said it was examining: "the constitutional propriety of the introduction
in evidence of the preliminary hearing testimony of a witness not
produced at the defendant's subsequent state criminal trial."
Id. at 392-93 (quoting Ohio v. Roberts, 448 U.S. 56, 58 (1980)).
122. 112 S. Ct. 736 (1992).
123. Id. at 741 (emphasis added).
124. The federal version of the excited utterance (spontaneous exclamation)
exception is found in Federal Rule Evidence 803(2) ("A statement relating to a
startling event or condition made while the declarant was under the stress of
excitement caused by the event or condition").
125. The federal version of the medical diagnosis exception is found in
Federal Rule Evidence 803(4) ("Statements made for purposes of medical
diagnosis or treatment and describing medical history, or past or present
symptoms, pain, or sensations, or the inception or general character of the cause
or external source thereof insofar as reasonably pertinent to diagnosis or
treatment").
126. United States v. Inadi, 475 U.S. 387,395 (1986).
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[22:45
purpose of medical diagnosis had substantial probative value that
"could not be duplicated simply by the declarant later testifying in
court. "127
In short, the Court believed that the out-of-court statement is 'better
evidence" than the in-court testimony. 128 This argument is flawed
because it presupposes that either the out-of- court statement or the incourt testimony may be introduced at trial. There is no reason,
however, why both cannot be admitted in evidence in most trials.
Statements falling within these exceptions are admissible even if the
declarant testifies.
b. "burden-benefit" argument
The second reason noted in these cases involved what the Court
believed to be an unnecessary burden on the prosecution. The
prosecution subpoenas those witnesses that it needs, and the defense is
guaranteed the same opportunity under the Compulsory Process
Clause. 129 An unavailability rule would operate only in those cases
where neither side wanted to call the witness. In the Court's view, the
benefit of an unavailability rule is therefore marginal. At the same
time, keeping track of additional witnesses would impose
"substantial burdens," because the prosecution would "be required to
repeatedly locate and keep continuously available each declarant." 3 °
Once, again, the Court's opinions are not persuasive. The
prosecution has to keep track of the state's witnesses. Typically, this
means retaining their name; address, telephone number, and place of
employment, and issuing subpoenas when necessary.
The
incremental burden of keeping track of additional witnesses would
often be minimal. The declarant in Inadi failed to appear due to car
trouble, a rather unimpressive excuse."'
127. White, 112 S. Ct. at 743.
128. "When two versions of the same evidence are available, longstanding
principles of the law of hearsay, applicable as well to Confrontation Clause
analysis, favor the better evidence." Inadi, 475 US. at 394.
129. Whether the Compulsory Process Clause is as expansive as the Court
suggests is open to question. In other cases, the Court has limited the right to
Compulsory Process to the production of "favorable witnesses." The right does
not extend to the production of "witnesses against" the accused. Jonakait, supra
note 118, at 613.
130. White, 112 S.Ct. at 742.
131. United States v. Inadi, 475 U.S. 387, 390 (1986). In Barber v. Page, 390
U.S. 719 (1968), the Court wrote: "[A] witness is not 'unavailable' for purposes of
the ...confrontation requirement unless the prosecutorial authorities have made
(continued)
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EXPERT TESTIMONY
2. Reliability requirement
Subsequent decisions also considered the reliability prong
mentioned in Roberts. Under this prong, a hearsay statement
satisfies confrontation requirements either because the statement (1)
falls within a "firmly rooted" hearsay exception or (2) possesses
"particularized guarantees of trustworthiness. 3'
a good-faith effort to obtain his presence at trial." Id. at 724-25. In Roberts the
Court reaffirmed this test and added the following explanation:
The law does not require the doing of a futile act. Thus, if no possibility
of procuring the witness exists (as, for example, the witness'
intervening death), "good faith" demands nothing of the prosecution.
But if there is a possibility, albeit remote, that affirmative measures
might produce the declarant, the obligation of good faith may demand
their effectuation. "The lengths to which the prosecution must go to
produce a witness.., is a question of reasonableness." ... The ultimate
question is whether the witness is unavailable despite good-faith efforts
undertaken prior to trial to locate and present that witness. As with
other evidentiary proponents, the prosecution bears the burden of
establishing this predicate.
Ohio v. Roberts, 448 U.S. 56, 74-75 (1980) (quoting California v. Green, 399 U.S.
149, 189 n.622 (1970)).
132. Roberts, 448 U.S. at 66. The Court addressed the issue of hearsay
statements that are not "firmly rooted" in a case involving the admissibility of a
child's statement under a residual hearsay exception. Idaho v. Wright, 497 U.S.
805 (1990). This analysis involves a case-by-case approach that considers the
"totality of the circumstances" at the time the statement was made. Id. at 819. It
precludes consideration of independent corroborating circumstances in
determining reliability. "[Tihe relevant circumstances include only those that
surround the making of the statement and that render the declarant particularly
worthy of belief." Id.
In rejecting reliance on corroborating proof, the Court wrote:
[Tihe use of corroborating evidence to support a hearsay statement's
"particularized guarantees of trustworthiness" would permit admission
of a presumptively unreliable statement by bootstrapping on the
trustworthiness of other evidence at trial, a result we think at odds with
the requirement that hearsay evidence admitted under the
Confrontation Clause be so trustworthy that cross-examination of the
declarant would be of marginal utility.
Id. at 822.
CAPITAL UNIVERSITY LAW REVIEW
[22:45
Bourjaily v. United States'33 considered the reliability prong as
applied to coconspirator statements, an issue left open by Inadi.
Tracing the judicial history of the coconspirator exception back over a
century and a half, the Court found the exception "firmly enough
rooted in our jurisprudence."134
Accordingly, such statements
automatically satisfy confrontation demands for reliability.
Surprisingly, the Court failed to examine the underlying
rationale for the exception, a rationale that "is not altogether easy to
grasp."' 3 5 Coconspirator statements are not "regarded as carrying
some particular guarantee of trustworthiness."'3 6 Rather, the
exception is often justified on agency principles-a "partners in
crime" rationale. The federal drafters noted that the "agency theory
of conspiracy is at best a fiction."'3 7 The drafters did not supply an
alternative rationale. Sometimes coconspirator statements are
against the penal interest of the declarant. But nothing in the rule
requires that the statement be against interest when made: "[T]he
authorities agree that admissions of the agent . . . are admissible
whether or not he thought the statements to be against his or his
principal's interest at the time he made them."' 38 Professor Mueller
observes, "In terms of theory, [the rule] is an embarrassment.... [I]t
seems to have been created by accident, and the one traditional
explanation which survives does not convince. ""' The Court's casual
133. 483 U.S. 171(1987).
134. Id. at 183.
135. Phillip E. Johnson, The Unnecessary Crime of Conspiracy, 61 CAL. L.
REV. 1137, 1183 (1973).
136. Id. The federal drafters explicitly stated that admissions, such as
coconspirator statements, are permitted "as a result of the adversary system"
rather than a reliability rationale: "No guarantee of trustworthiness is required
in the case of an admission." FED. R. EVID. 801(d)(2) advisory committee's note;
see also David S. Davenport, The Confrontation Clause and the Co-Conspirator
Exception in CriminalProsecutions: A FunctionalAnalysis, 85 HARV. L. REV.
1378, 1384 (1972) ("[Tjhe coconspirator exception has usually been supported
by a variety of theories unrelated to the trustworthiness of the evidence itself.").
137. FED. R. EVID. 801(d)(2XE) advisory committee's note.
138. Johnson, supra note 135, at 1184. Federal Rule 804(b)(3) now
recognizes an exception for statements against penal interest, and thus there is
no need for a separate coconspirator exception if the "against interest" notion is
the underlying rationale. This exception is more demanding than the
coconspirator exception because it requires the unavailability of the declarant.
Prior to the adoption of the Federal Rules in 1975, most jurisdictions limited
the declaration against interest exception to statements against pecuniary or
proprietary interests, not penal interests.
139. Christopher B. Mueller, The Federal Coconspirator Exception: Action,
Assertion, and Hearsay, 12 HOFSTRA L. REv. 323, 324 (1984). Some
(continued)
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EXPERT TESTIMONY
treatment of the reliability issue belies its stated concern for
trustworthiness.
The Court adopted the same analysis in White, writing that there
"can be no doubt" that the excited utterance and medical diagnosis
exceptions are "firmly rooted." The Court noted that the excited
utterance exception has been recognized for "at least two centuries"
and that the Federal Rules of Evidence and nearly "four-fifths" of the
states have adopted it.'"
Here, again, the Court overlooked the long-standing criticism of
the excited utterance exception: "The entire basis for the exception is,
of course, subject to question. While psychologists would probably
concede that excitement minimizes the possibility of reflective selfinterest influencing the declarant's statements, they have questioned
whether this might be outweighed by the distorting effect of shock and
excitement upon the declarant's observation and judgment."' 4 ' In
this symposium Professor Swift points out that the medical diagnosis
exception is also open to challenge on reliability grounds.'42
3. Summary
Thus, despite the Court's statements in earlier cases, the most
recent decisions suggest that the right of confrontation has been
"deconstitutionalized" into the hearsay rule. "Firmly rooted"
exceptions are presumptively reliable. At this time the unavailability
requirement is applied only to former testimony. Yet, traditional
hearsay law always required unavailability as a prerequisite for the
use of former testimony. One commentator has written, "The
confrontation clause is no longer a constitutional right protecting the
commentators candidly admit that the justification for the exception is
"necessity" and not reliability. See Joseph H. Levie, Hearsay and Conspiracy: A
Reexamination of the Co-Conspirators'Exception to the Hearsay Rule, 52
MICH. L. REV. 1159, 1166 (1954) ("Conspiracy is a hard thing to prove....
Conspirators declarations are admitted out of necessity.").
140. White v. Illinois, 112 S. Ct. 736, 743 n.8 (1992).
141. 2 MCCORMICK ON EVIDENCE 216 (4th ed. 1992); see also ELIZABETH F.
LoFTus, EYEwITNESS TESTIMONY 33 (1979) (discussing the effect of stress on
perception); Robert M. Hutchins & Donald Slesinger, Some Observations on
The Law of Evidence, 28 COLUM. L. REV. 432, 437 (1928); I. Daniel Stewart, Jr.,
Perception, Memory, and Hearsay: A Criticism of Present Law and the
ProposedFederalRules of Evidence, 1970 UTAH L. REV. 1, 27.
142. Eleanor Swift, Smoke and Mirrors: The Supreme Court's Accuracy
Rationale in White v. Illinois, 22 CAP. U. L. REV. 145, 157 (1993) ( The Court's
broad definition of the exception "would seem to include anything the patient
chooses to talk about with a doctor!").
CAPITAL UNIVERSITY LAW REVIEW
[22:45
accused, but essentially a minor adjunct to evidence law.' 1 43
Nevertheless, the Court has not formally adopted this position, and
how it will treat laboratory reports remains unclear.
C. Laboratory Reports
The Court's present confrontation framework still requires
consideration of unavailability and reliability. The rationales cited
in Inadi and White for dispensing with the unavailability
requirement do not apply to laboratory reports. There is no loss of
probative value when the expert testifies in court; the conditions
surrounding the making of the report can be "replicated" and
"duplicated" at trial. Accordingly, the "better evidence" argument is
even less persuasive here. Moreover, most reports are prepared by
experts working at government crime laboratories. The task of
locating and serving subpoenas on them is not overly burdensome.
The reliability issue is more complex. Both the business records
and public records exceptions would appear to qualify as "firmly
rooted."144 In fact, one passage in Roberts stated that "certain hearsay
exceptions rest upon such solid foundations that admission of
virtually any evidence within them comports with the 'substance of
the constitutional protection.""45 An accompanying footnote cited the
business and public records exceptions as examples. 146 Inadi and
White support this analysis. In both cases, the Court simply looked to
see how long a hearsay exception was recognized and how extensively
it had been adopted throughout the country.
Some courts have applied this reasoning to laboratory reports
without much analysis. In one case, the Eighth Circuit held: '"When
admitting the laboratory reports under the business records exception,
the district court acted under a firmly rooted exception."'4 7 Other
143. Jonakait, supra note 118, at 558. See also Margaret A. Berger, The
Deconstitutionalizationof the Confrontation Clause:
A Proposal for a
ProsecutorialRestraintModel, 76 MINN. L. REV. 557, 557 (1992) (The Supreme
Court "has transformed a constitutional guarantee into an evidentiary doctrine
generally designed to protect similar values,' as the hearsay rule."); Haddad,
supra note 87, at 80 ("Because of these rules, the Confrontation Clause offers
little protection beyond that afforded by domestic hearsay law.").
144. See 5 JoHN H. WIGMORE, EVIDENCE §§ 1517-61b (business records), §§
1630-38a (public records) (James H. Chadbourn ed. 1974).
145. Ohio v. Roberts, 448 U.S. 56, 66 (1980) (quoting Mattox v. United
States, 156 U.S. 237, 244 (1895)).
146. Id. at 244 n.8.
147. United States v. Baker, 855 F.2d 1353, 1360 (8th Cir. 1988), cert denied,
490 U.S. 1069 (1989); See also United States v. DeWater, 846 F.2d 528, 530 (9th
(continued)
1993]
EXPERT TESTIMONY
courts have reached the same result, using a different analysis. They
focus on the existence of particularized guarantees of trustworthiness
rather than the "firmly rooted" exception rationale.14
1. Reliability: traditionalhearsay dangers
Although business and public records generally may bear
adequate indicia of reliability, laboratory reports may not.
Traditional hearsay dangers are present, including deficiencies in
the declarant's perception, memory, narration, and sincerity.
Laboratory reports typically are prepared in anticipation of
prosecution. Although probably rare, they can be falsified. Indeed,
the Supreme Court has recognized that "the results of laboratory tests
may be contrived," 149 and in one instance an FBI analyst "reported
results of lab tests that he did not in fact conduct."'"5 Another case
involved a death certificate which revealed the identity of the body
and the cause of death.'
Later proceedings demonstrated that most of
this information was suspect. The conclusion regarding the cause of
death, recorded as gunshot wounds, was based not on an autopsy but
rather on the statement of a witness as transmitted to the coroner
through the police.
Many conclusions recorded in lab reports are based on subjective
judgments," 2 about which experts may disagree.' 3 For example, a
Cir. 1988) (intoxilyzer test report admissible as public record, a "firmly rooted"
exception); Commonwealth v. Kravontka, 558 A.2d 865, 870 (Pa. Super. Ct.
1989) (admission of blood-alcohol test as business record; no confrontation
violation). But see United States v. Bentley, 875 F.2d 1114, 1121-23 (5th Cir.
1989) (dissenting opinion) (Constitution violated where lab report summarized
an unidentified test by an anonymous technician).
148. See Manocchio v. Moran, 919 F.2d 770, 777 (1st Cir. 1990) (autopsy
report admissible but not as a "firmly rooted" exception), cert. denied, 111 S. Ct.
1695 (1991); State v. Sosa, 800 P.2d 839 (Wash. Ct. App. 1990) (admission of
heroin report not a confrontation violation).
149. United States v. Ash, 413 U.S. 300, 320 (1973).
150. State v. Ruybal, 408 A.2d 1284, 1285 (Me. 1979); see also State v.
DeFronzo, 394 N.E.2d 1027, 1031 (Ohio C.P. 1978) (expert represented that
certain lab tests were performed when "no such tests were ever conducted").
151. Stevens v. Bordenkircher, 746 F.2d 342, 346 (6th Cir. 1984).
152. See United States v. McClintock, 748 F.2d 1278, 1292 (9th Cir. 1984)
("[Blecause of the various means of evaluation and apparent subjective
decisions that enter into the evaluation of gems, [the defendant's] confrontation
of the preparers of the reports may have been valuable to his defense."), cert.
denied, 474 U.S. 822 (1985).
153. See Commonwealth v. McCloud, 322 A.2d 653, 655 (Pa. 1974) (crossexamination important because experts often give conflicting opinions).
CAPITAL UNIVERSITY LAW REVIEW
[22:45
court excluded a bite mark report on this basis: "Without the
testimony of the doctor, it would be difficult to assess the validity of the
test upon which the opinions of the doctor expressed in the report were
based."'54 Commentators have long recognized the risks associated
with such evaluative reports.' 5
The cases discussed in the first part of this paper provide
additional illustrations. If a laboratory report had been admitted in
Fenstererin lieu of the examiner's testimony, the jury would not have
learned of the expert's lapse of memory. Further, the term "forcible
removal" is misleading. It suggests a "violent" removal, but hair
removed by brushing or combing is also characterized as "forcibly"
removed. In the Rule 703 cases, the bases of the opinion cannot be
scrutinized if the expert never testifies. All the problems raised in
Reardon would have been masked if the drug report had been
admitted in lieu of expert testimony.
2. Reliability: scientificproblems
The case against admissibility, however, is most forcibly argued
on scientific, not hearsay, grounds. The proficiency test results of
many common laboratory examinations are disturbing. In the most
comprehensive study published, 71% of the crime laboratories tested
provided unacceptable results in a blood test, 51.4% made errors in
matching paint samples, 35.5% erred in a soil examination, and
28.2% made mistakes in firearms identifications.' 5 6 A later review
of five handwriting comparison proficiency tests showed that at best
"[d]ocument examiners were correct 57% of the time and incorrect
154. State v. Stokes, 433 So. 2d 96, 103 (La. 1983) (bite mark analysis report
offered by defense held inadmissible as business record).
155.
See Edward J. Imwinkelried, The Constitutionality of Introducing
EvaluativeLaboratoryReports Against Criminal Defendants, 30 HASTINGS LJ.
621, 639 (1979) ("When the subject of the report is evaluative, equally qualified
experts in the field will often reach conflicting opinions on the very same facts...
. [Tlhere is too great a likelihood that a lay trier of fact will generally be unable to
determine the proper weight to assign to an evaluative opinion in a police
laboratory report if they do not have the opportunity to have the expert cross examined."); Peter Westen, The Future of Confrontation, 77 MICH. L. REV. 1185,
1209 n.92 (1979) ("To be sure, some business records contain evaluative
statements that the defendant can reasonably be expected to wish to examine; in
that event, the Confrontation Clause would require the prosecution to produce
the maker of the records in person.").
156. JOSEPH L. PETERSON r AL., CRIME LABORATORY PROFICIENCY TESTING
RESEARCH PROGRAM 251 (Oct. 1988).
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43% of the time."5 7 Given these results, one would have expected the
implementation of fairly extensive reforms. Such reforms have not
occurred. Professor Joseph Peterson, one of the authors of the 1978
proficiency study, has commented, "The startling conclusions from
that research led to some efforts to improve conditions in the
laboratories, but these encounter[ed] institutional inertia against
reform."' 8
Under current practices, proficiency testing of crime labs is
purely voluntary.
Laboratory accreditation and examiner
certification are not required. Consequently, "[alt present, forensic
science is virtually unregulated-with the paradoxical result that
clinical laboratories must meet higher standards to be allowed to
diagnose strep throat than forensic labs must meet to put a defendant
on death row." 5 9
These conditions simply cannot be justified. In a recent article
on crime laboratories, Professor Jonakait concluded:
All available information indicates that forensic science
laboratories perform poorly. . . . Current regulation of
clinical labs indicates that a regulatory system can improve
crime laboratories ....
[F]orensic facilities should at least be
required to undergo mandatory, blind proficiency testing,
and the results of this testing should be made public."
157. D. Michael Risinger et al., Exorcism of Ignorance as a Proxy For
Rational Knowledge: The Lessons of Handwriting Identification "Expertise;'
137 U. PA. L. REV. 731, 748 (1989).
158.
Symposium on Science and the Rules of Legal Procedure, 101 F.R.D.
599, 645 (1983). For a more detailed discussion of proficiency testing, see
Michael J. Saks, Prevalence and Impact of Ethical Problems in Forensic
Science, 34 J. FORENSIC Sci. 772, 775-78 (1989) (reviewing proficiency testing
results) ("Perhaps the major lessons to be drawn from this are that errors are
indeed made and that there is a wide range of interlaboratory variation.").
159.
Eric Lander, DNA FingerprintingOn Trial, 339 NATURE
501, 505
(1989).
160.
Randolph N. Jonakait, Forensic Science: The Need for Regulation, 4
HARV. J.L. & TECH. 109, 191 (1991).
A limited, but nevertheless revealing, survey of lawyers and scientists
associated with the American Academy of Forensic Sciences identified
"competency" as the most significant ethical problem in the field. Other
problems considered significant in the survey included "the failure of scientists
to express both the strengths and weaknesses of their data, giving opinions
which exceed the limits of their data, and a failure to remain objective in their
evaluation of evidence and delivery of testimony." Joseph L. Peterson & John E.
Murdock, ForensicScience Ethics: Developingan Integrated System of Support
and Enforcement, 34 J. FORENSIC Sci. 749, 751-52 (1989).
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The recent National Academy of Sciences DNA report supports these
commentators.
According to the report, "Quality-assurance
programs in individual laboratories alone are insufficient to ensure
high standards. External mechanisms are needed, to ensure
adherence to the practices of quality assurance.
Potential
mechanisms include individual certification, laboratory
accreditation, and state or federal regulation." 6 ' An acceptable
quality control program requires "external proficiency testing that
periodically measures the capability of its analysts and the reliability
of its analytic results."162
In light of these conditions, it is difficult to understand how the
results contained in laboratory reports can be considered
presumptively reliable.
D. Other Approaches
Up to this point, I have analyzed the confrontation issue within the
framework that the Court has adopted. A number of commentators
have contended that the Court's focus on reliability is too limiting.
Professors Berger 6" and Jonakait,' 6 although advocating different
standards, have both argued for interpretations of the Sixth
Amendment that would provide far greater confrontation
protection."s In this symposium, Professor Swift supports this view.'
Ironically, the Court may be posed to accord even less status to the
Confrontation Clause. Last term, Justice Thomas, in a concurring
opinion in White, also criticized the Court's emphasis on the
161. DNA REPORT, supra note 21, at 109.
162. Id.
163. See Berger, supra note 143, at 561-62 ("Hearsay statements procured
by agents of the prosecution or police should... stand on different footing than
hearsay created without governmental intrusion. The Confrontation Clause
should bar hearsay statements elicited by governmental agents unless the
declarant is produced at trial or unless special procedures ... are followed.").
164. Jonakait, supra note 118, at 622 ("The Confrontation Clause gives the
accused the right to exclude all out-of-court statements when the declarant is
not produced except when the prosecutor establishes the lack of a reasonable
probability that the accused's cross-examination of the declarant would have led
the jury to weigh the evidence more favorably to the accused.").
165. Randolph N. Jonakait, Commentary: A Response to Professor Berger;
The Right to Confrontation: Not a Mere Restrainton Government, 76 MINN. L.
REV. 615 (1992).
166. Swift, supra note 142, at 146-48.
1993]
EXPERT TESTIMONY
"reliability" rationale. 167 Nevertheless, his position points in a
different direction. He suggested that perhaps only extrajudicial
statements contained in "formalized testimonial materials, such as
affidavits, depositions, prior testimony, or confessions" implicate
confrontation values. 168
It is difficult to predict how this debate will be resolved in future
One point of agreement nonetheless remains: the
cases.
Confrontation Clause was originally intended to preclude trial by
affidavit."6 Most analysis of the confrontation issue as applied to lab
reports commences by characterizing these reports as business or
Yet, it is as valid to begin the analysis by
public records.
characterizing lab reports as nothing more than an "affidavit of an
expert." Lab reports share the attributes of affidavits; they are
typically prepared by the prosecution in anticipation of trial.
Moreover, due to their aura of "expertise" and the "official"
imprimatur of the government, lab reports are a particularly
dangerous affidavit. The effect of the use of the expert's affidavit by
the prosecution is to shift the burden to the defendant, who, due to
indigency, is often not equipped to contest the reliability of scientific
evidence. 170
167. "[T]he Clause makes no distinction based on the reliability of the
evidence presented." White v. Illinois, 112 S.Ct. 736, 746 (1992) (Thomas, J.,
concurring with J. Scalia).
168. 1I
169. In an early confrontation case, the Court wrote: "The primary purpose
of the constitutional provision
. . .
was
to prevent depositions or ex parte
affidavits... being used against the prisoner in lieu of a personal examination
and cross-examination of the witnesses...." Mattox v. United States, 156 U.S.
237, 242 (1895); see also Dutton v. Evans, 400 U.S. 74, 94 (1970) (Harlan, J.
concurring) (The "paradigmatic evil the Confrontation Clause was aimed attrial by affidavit ....");California v. Green, 399 U.S. 149, 156 (1970) ("It is
sufficient to note that the particular vice that gave impetus to the confrontation
claim was the practice of trying defendants on 'evidence' which consisted solely
Peter Westen, Confrontation and
of ex parte affidavits or depositions ....");
Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91
HARV. L. REV. 567, 574-75 (1978) ("Yet it has been understood since the earliest
confrontation cases that the prohibition of trials by affidavit lies at the very core
of our notions of confrontation.").
170. Eleanor Swift, Abolishing the Hearsay Rule, 75 CAL. L. REV. 495, 514
(1987) ("The crucial point about Burden-Shifting Declarants is that their
systematic use allows plaintiffs and prosecutors to present hearsay statements,
often in documentary form, without simultaneously producing a witness
knowledgeable about the declarant, the statement, or any of her testimonial
").
qualities or circumstances.... Burden-shifting is a tactical choice ....
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CONCLUSION
Three recommendations respond to the difficulties raised by the
interplay between expert evidence and the Confrontation Clause.
First, pretrial discovery is critical to protecting an accused's
confrontation rights. Presently, a proposed amendment to Federal
Rule 16 is under consideration. This rule will go a long way toward
rectifying the problems raised in this paper. It provides:
(E) EXPERT WITNESSES. At the defendant's request, the
government shall disclose to the defendant a written
summary of testimony .the government intends to use under
Rules 702, 703, or 705 of the Federal Rules of Evidence during
its case in chief at trial. This summary must describe the
witnesses' opinions, the bases and the reasons therefor, and
the witnesses' qualifications.
Hopefully, the amendment will be adopted by the Supreme Court
and become a model for the states.'71 Authorizing a limited number of
written interrogatories for expert witnesses, say ten for each side,
would further protect defendants' rights. Otherwise, I fear the new
discovery "game" will be to determine how "summary" the
summary can be.
Second, jurisdictions should adopt what I call "notice and
demand" statutes. For example, an Ohio statute permits the
admissibility of laboratory reports in controlled substance
prosecutions if (1) the defense has been served with a copy of the report
and (2) the defense does not demand the presence of the person
signing the report.'7 If pretrial discovery is sufficient to permit the
defense to make an informed judgment, then the failure to demand
the examiner's presence is a waiver of the right of confrontation.
"Notice and demand" statutes ease the government's "burden" while
at the same time protect defendants' right of confrontation.
Third, we should insist on proficiency testing for crime
laboratories and the publication of the results of these tests.
171. In April, 1993, after this article was completed, the United States
Supreme Court adopted an amendment to Rule 16 of the Federal Rules of
Criminal Procedure; this amendment is substantially similar to the one discussed
in this paper. Amendments to FederalRules of Criminal Procedure, 147 F.R.D.
387 (1993).
172. OioREv. CODE ANN. § 2925.51(B)4D) (Baldwin 1987).