SJC curtails substitution of forensic expert witnesses

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A criminal defendant’s constitutional right to confront witnesses against her was violated when the prosecution used a substitute expert to identify a controlled substance because the substitute expert’s opinion relied on the notes and data from tests performed by the original analyst, the Supreme Judicial Court has ruled in overturning an evidentiary rule that permitted more liberal use of such substitute witnesses.

In reaching its decision in Commonwealth v. Gordon, the SJC was guided by last year’s U.S. Supreme Court decision in Smith v. Arizona, which similarly dealt with a substitute expert giving an opinion identifying a controlled substance.

In both cases, the substitute expert neither participated in nor observed the chemical testing performed by the original analyst but proceeded to testify to the contents of the original analyst’s notes.

“As in Smith, the analyst’s out-of-court statements provided support for the substitute expert’s opinion only if the analyst’s statements were true,” Justice Dalila Argaez Wendlandt wrote for the SJC in Gordon.

After walking through the jurisprudence that led to the Smith decision, the SJC explained that the upshot of Smith is that it clarified that when a substitute expert’s “proffered opinion merely replicates, rather than somehow builds on, the testing analyst’s conclusions,” the absent analyst is the “witness” the defendant has a right to confront.

“Significantly, the Supreme Court expressly rejected the State’s argument that the confrontation clause permitted a substitute expert to offer an ‘independent’ opinion based solely on his review of the absent analyst’s notes, report and raw data,” Wendlandt wrote.

But while agreeing that the defendant’s conviction in Gordon needed to be vacated, Justices Serge Georges Jr. and Frank M. Gaziano said the court’s majority took Smith one step too far.

“An expert who independently reviews raw, machine-generated data and testifies to her own conclusions — based on her training and experience — does not violate the confrontation clause,” Georges wrote in a concurrence that was joined by Gaziano.

The 81-page decision is Lawyers Weekly No. 10-108-25.

No substitute

The Supreme Court’s decision in Smith, and now the SJC’s ruling in Gordon, have their roots in the U.S. Supreme Court’s 2004 decision in Crawford v. Washington, in which the court began to take a closer look at the true meaning of the Confrontation Clause, said Radha Natarajan, executive director of the New England Innocence Project, who co-authored a brief in Gordon.

Still, the belief had long lingered that forensic evidence could be treated differently because of its inherent reliability, she noted.

Due to practical considerations and the increasing use of technology in criminal cases, Massachusetts and other state courts have been reluctant to grapple with the Confrontation Clause issues inherent in the use at trial of an absent analyst’s notes, Natarajan said.

In that sense, Smith provided a necessary jolt, she said.

“Smith made it very clear, saying we [the Supreme Court] mean what we say: Cross-examination of the person whose statements you’re relying on for the truth, if they’re coming in for a testimonial purpose, then they have to be cross-examined, and there’s no substitute for that,” she said.

While the state drug lab scandals involving former chemists Annie Dookhan and Sonja Farak are not explicitly mentioned in Gordon, it is hard not to make that connection, according to Natarajan.

“My hope is that people are going to recognize that we shouldn’t be trying to figure out how we can limit this rule as much as possible, but to say we know in this state better than anybody how important it is that forensic science gets confronted,” Natarajan said.

But an attorney and two law professors who collaborated on an amicus brief in support of neither party in Gordon fear the SJC may have unnecessarily complicated future criminal proceedings.

It’s easy to say you can’t base an opinion on testimonial hearsay, but what is testimonial hearsay, and where do you draw that line?

— Elizabeth N. Mulvey, Boston

Boston attorney Elizabeth N. Mulvey, New England Law Professor Benjamin K. Golden and Boston College Law School Professor R. Michael Cassidy proposed in their brief that the court should retain part of its existing framework allowing for experts to testify based on their personal knowledge or their familiarity with the lab or its testing procedures.

They lobbied for a distinction that raw data or primary source information is not hearsay and a valid basis of an expert’s opinion, and they also asked the court to clarify that “routine administrative entries” such as chain-of-custody documentation are not testimonial and may be disclosed to the jury, if they satisfy a hearsay exception.

“The SJC went a very different way,” Golden said.

Mulvey said the brief tried to propose “something that we thought would be palatable but at the same time protect everybody’s rights.”

The vexing, open question remaining after Gordon is how the courts will define “testimonial hearsay,” she said.

“It’s easy to say you can’t base an opinion on testimonial hearsay, but what is testimonial hearsay, and where do you draw that line?” Mulvey asked. “Technically, if the cop pulls the drugs out of the guy’s pocket and puts a tag on it and says, ‘I took these on this date,’ that to me is testimonial hearsay, because he’s doing that so that they’re admissible in court and so that they can be tested.”

A future court might clarify that chain-of-custody documentation is not testimonial, Mulvey said.

“But sometimes there’s a real fine line between what’s chain of custody and what really matters,” she said.

The concurrence’s definition of “testimonial” — that the primary purpose of the statement was to create an out-of-court substitute for trial testimony — is more workable, Golden said.

As for the impact of the drug lab scandals, Cassidy said he thought the drug-testing scandal and subsequent uproar it caused in the Massachusetts courts would have caused the SJC to realize that “making an overly inclusive definition of what’s testimonial for the purposes of a substitute analyst’s testimony could wreak as much havoc, because how do you even prosecute these cases anymore?”

The unattractive choices prosecutors and investigators are left with are to have two analysts doing every test to take precaution against one leaving, dying or becoming unavailable, which will require an increased government investment in forensic testing. Or prosecutors could simply forgo forensic forms of proof in cases in which an analyst is no longer available for whatever reason, Cassidy said.

“You say that scientific testimony is just not going to be admitted, which is bringing us back to the 19th century,” Cassidy said.

Meanwhile, Natarajan’s main quibble with Gordon is that the SJC made its decision forward-looking only.

“From our point of view, especially when you’re talking about something that has an outsized influence on jurors [like forensic evidence], we should really be thinking about: ‘Can we stand by the convictions in this commonwealth? Can we stand by the integrity of them or not?’” she said.

As with other issues in which the SJC has made relief prospective, Natarajan said she hoped there would be recognition that the basis behind the change in the rule may require the court to look at the integrity of specific convictions individually.

A spokesperson for the Plymouth County District Attorney’s Office said the appellate team was “actively reviewing” the Gordon decision and weighing its next steps.

The defendant’s appellate attorney, Christopher DeMayo of Melrose, could not be reached for comment.

Supervisor steps in

In 2018, defendant Elena M. Gordon, an attorney whose license to practice has since been suspended, delivered two envelopes containing 61 orange strips of an unidentified substance to an inmate at the Plymouth County House of Correction.

At the crime lab, forensic analyst Kimberly Dunlap evaluated one of the strips and confirmed that it contained Suboxone, a medication used to treat opioid use disorder.

In her written initialed notes, Dunlap recorded the procedures she reportedly undertook to reach her conclusion, including a confirmatory test using gas chromatography-mass spectrometry, or GC-MS.

Carrie LaBelle, a supervisor at the crime lab, neither observed nor participated in Dunlap’s testing but did review the case file pursuant to the crime lab’s technical and administrative review procedures.

The prosecution had intended to call Dunlap to testify that the 61 strips contained Suboxone. However, just prior to jury empanelment, the prosecution notified the trial judge that it intended to call LaBelle as a “substitute chemist” because Dunlap was “no longer with the lab.”

In her trial testimony, LaBelle explained the technical review she had conducted of Dunlap’s work, acknowledging that she had neither performed nor observed the testing on any of the seized strips.

Using Dunlap’s notes, she then testified about the testing Dunlap claimed to have performed. As a forensic scientist, LaBelle said she could identify the substance as Suboxone “to a scientific degree of certainty” based on her independent review of the data printouts.

Gordon’s trial attorney moved to strike LaBelle’s testimony, arguing that Gordon’s right to confrontation had been violated. The trial judge denied the motion to strike but noted Gordon’s reservation of rights on the issue.

In October 2021, the jury found Gordon guilty of unlawfully delivering a Class B controlled substance to a prisoner, and she was sentenced to six months in a house of correction.

On appeal, the Appeals Court affirmed Gordon’s conviction, rejecting her Confrontation Clause challenge, reasoning that LaBelle’s opinion was independent based on her review of the case file.

After issuing its decision in Smith, the U.S. Supreme Court granted Gordon’s petition for certiorari, vacated the Appeals Court’s judgment, and remanded the case to the Appeals Court for reconsideration considering Smith. The SJC then transferred the case on its own motion.

No categorical rule?

Georges and Gaziano disagreed with the rest of the SJC in reading Smith “as if it announced a categorical rule that any exposure by a substitute expert to testimonial hearsay, however incidental, taints the entirety of that expert’s opinion, even when the independent analysis of raw, machine-generated data,” Georges wrote.

Georges said that “Smith imposes no such bright line rule” and that Massachusetts law has long distinguished between the admissibility of the expert’s opinion and the inadmissibility of any hearsay statements underlying that opinion.

To Georges and Gaziano, Smith addresses whether the testifying expert is “simply repeating hearsay that is potentially testimonial.”

Accordingly, Georges wrote, “Smith does not displace our long-standing framework for determining whether an expert opinion is independent for confrontation purposes.”

Even post-Smith, it continues to be sufficient that a testifying expert possesses “meaningful knowledge of the relevant laboratory processes, typically through affiliation with the laboratory, familiarity with its protocols, or service as a technical reviewer of the prior analyst’s work,” Georges said.

In such circumstances, the defendant “retains a fair opportunity to test the basis for the expert’s conclusions,” he wrote.

But the majority said that Georges and Gaziano “misapprehend” its holding, explaining in a footnote that it did not rule that a qualified expert may never decipher for the jury what a graph of a GC-MS output signifies. In Gordon, however, the substitute expert’s opinion was not based on raw data alone but also on the truth of Dunlap’s testimonial hearsay, the majority said.

One risk with the majority’s conclusion that Dunlap’s notes were testimonial is that it conflates ordinary laboratory documentation with testimonial statements prepared for use at trial, Georges said.

“That approach risks unduly expanding the scope of the confrontation clause and imposing constitutional barriers where they are not justified, disregarding the practical realities of scientific record-keeping,” he wrote.

The majority responded in a footnote that Georges’ and Gaziano’s “alarm is unwarranted.”

“We conclude only that Dunlap’s statements, documenting the scientific steps she took to perform the chemical analysis she was asked to conduct by law enforcement officials to prove an element of the crime with which the defendant was charged, and which bore some indicia of formality, were testimonial,” the footnote reads.