I’ve commented earlier that I do not see Melendez-Diaz altering the drug urinalysis case in terms of laboratory evidence. Here is some additional thought which I think supports my conclusion.
Q2: Peer review, forensic experts.
One question that came up during oral argument, and remains after the ruling, is the application of the ruling to peer review witnesses. It is common for a supervisor or peer to review a forensic examination, as part of a quality control process. The reviewer often does not conduct the specific analysis or testing.
During oral argument, Chief Justice Roberts asked whether a supervisor overseeing forensic analysis could testify instead of the analyst performing the examination. Luis E. Melendez-Diaz v. Massachusetts, Transcript at 4:3-8 (Nov. 10, 2008) (“I suppose it doesn’t have to be the analyst but whoever they decide to call. So if you had a supervisor who runs the cocaine testing lab and he is the one whose report is submitted, I take it he is the one who would have to show up.”). Petitioner’s counsel noted that a supervisor could testify about their reliance on the data but could not “relay somebody else’s conclusion to the jury.” Id. at 28:13-14.
For two recent cases considering this issue before Melendez-Diaz, see United States v. Richardson, 537 F.3d 951, 960 (8th Cir. 2008) (peer review expert’s testimony confirming a match of the defendant’s DNA and the DNA found on the firearm did not violate the Confrontation Clause since the expert testified and was cross-examined about her conclusions; “Although she did not actually perform the tests, she had an independent responsibility to do the peer review. Her testimony concerned her independent conclusions derived from another scientist’s tests results and did not violate the Confrontation Clause.”) (citing United States v. Moon, 512 F.3d 359, 362 (7th Cir. 2008) (holding the reviewing scientist “was entitled to analyze the data that [the first scientist] had obtained”; noting “the Sixth Amendment does not demand that a chemist or other testifying expert have done the lab work himself”)).
/tip to FederalEvidenceBlog.