Crawford-not a surrogate

Federal Evidence Review is one of many websites I review on a regular basis. The blog has, “noted how the lower courts continue to grapple with the application of the Confrontation Clause to expert testimony based on the lack of clarity from recent Supreme Court cases. See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois.”

Based on recent Supreme Court cases involving expert testimony under the Confrontation Clause, the Soto case provides some useful guidance. First, reexamination or "second analysis" testimony should be permitted where the second examiner conducts an independent review of the evidence and testifies about his or her independent conclusions. Second, to avoid challenges of impermissible bolstering, the second examiner should minimize reference to the conclusions of the first examiner. Any testimony about testimonial statements of the non-testifying first examiner may be subject to challenge under the Confrontation Clause.

The author discusses United States v. Soto, (1st Cir. 2013). Justice Souter is a member of the panel, although he did not write the opinion.

On appeal, Soto argues that the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting testimony of a forensic examiner about another examiner’s prior examination.

Soto (belatedly) challenged testimony of a Secret Service forensic examination of his computer. The witness testified to his own examination of the evidence hard-drive. So far so good: a second and independent examination starting at step one – making a forensic copy of the hard-drive for his own examination. The first examiner did not testify at trial. The error in the testimony began with:

“I took the hard drive out of this laptop, I made my own image and I examined the image of the hard drive and I confirmed that everything that was in John Mxxxxx’s report was exactly the way he said it was.” Slip op. at 8.

There were more statements made by the witness which directly commented on what Mr. Mxxxxx the first examiner did or did not find. And there was testimony about why Mr. Mxxxxx wasn’t at trial.

That testimony leads to an improper bolstering and Crawford issue.

The court gives a nice recitation of the state of confrontation law and:

Finally, in Williams v. Illinois, 132 S. Ct. 2221 (2012), the Supreme Court tackled the constitutionality of allowing an expert witness to discuss a non-testifying expert’s statements when the non-testifying expert’s statements are not admitted in evidence.

The court did not find the witness to be a “surrogate,” in violation of Bullcoming. He’d done his own independent examination.

The government may ask an agent to replicate a forensic examination if the agent who did the initial examination is unable to testify at trial, so long as the agent who testifies conducts an independent examination and testifies to his own results.

But, Soto’s argument that “Agent Mxxxxx’s report bolstered Agent Pxxxxx’s testimony hits closer to the mark.” The statements were arguably testimonial, offered for the truth, and bolstered the witness.

Unfortunately there had not been a Crawford objection, so no plain error, the testimonial statements being, “entirely cumulative.” Had there been an objection the court could have given a curative instruction (to unring the bell) or called the other examiner.