On use of substitute expert witnesses, pending case may provide needed clarity

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Evidence law experts are continuing to unspool the implications of a recent Supreme Judicial Court decision related to the use at trial of substitute expert witnesses and see a case argued to the Appeals Court back in June 2024 as an opportunity for some much-needed clarity.

On Sept. 17, the SJC issued its decision in Commonwealth v. Gordon, involving a lawyer charged with passing to a Plymouth County House of Correction inmate what she claimed were legal papers but instead were 61 strips containing the controlled substance Suboxone.

By the time of trial, the state crime lab analyst who had evaluated one of the strips was unavailable, so the prosecution called her supervisor to testify in her stead. While familiar with the lab’s protocols, the supervisor had neither observed nor participated in the analyst’s testing. To prepare for trial, the supervisor reviewed the case file, including the analyst’s notes.

The supervisor then testified in detail to the contents of the analyst’s notes, including each of the steps that the analyst recorded herself as performing, before agreeing with the conclusion that the tested substances contained Suboxone.

The SJC held using the supervisor as the conduit to admit the analyst’s notes violated the defendant’s rights under the Confrontation Clause, a result it believed was required by the U.S. Supreme Court’s June 2024 decision in Smith v. Arizona.

Prior to Gordon, a testifying expert could offer an opinion based on facts or data not in evidence but could not testify to the hearsay basis of that opinion.

Now, even if the jury never hears the hearsay basis for an expert’s opinion, the expert may no longer express an opinion based on testimonial hearsay when the expert’s opinion depends on the truth of that hearsay, such as that a test was performed correctly or on the right sample or that a machine was working properly.

Among the precedents overruled by Gordon was the SJC’s 2008 decision in Commonwealth v. Nardi, in which a pathologist who had not performed an autopsy was allowed to testify about the cause of death based on his examination of materials created by the original medical examiner, which included notes, diagrams, photographs, tissue slides and toxicology reports.

Though Justice Serge Georges Jr. agreed that the defendant’s conviction in Gordon should be vacated, he — joined by Justice Frank M. Gaziano — highlighted concerns in a concurrence.

“The court’s conclusion that the notes were testimonial is speculative and risks conflating ordinary laboratory documentation with testimonial statements prepared for use at trial,” he wrote. “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.”

Count Boston attorney Elizabeth N. Mulvey, a member of the SJC’s Advisory Committee on Massachusetts Evidence Law, among those who share the concerns of Georges and Gaziano.

What made the analyst’s notes in Gordon testimonial was that she “reasonably would anticipate” that those notes “would be available for use at trial” and had “some level of formality,” the majority explained.

But the challenge is distinguishing between chain-of-custody evidence, which has historically been viewed as not testimonial, and “statements prepared for use at trial,” which the SJC has now held a defendant must have the opportunity to confront, Mulvey says.

In theory, that would seem to require the live testimony of a police officer who slapped an evidence sticker on a baggie of drugs seized from a defendant, she notes.

In a footnote in the U.S. Supreme Court’s 2009 decision Melendez-Diaz v. Massachusetts — a case in which the court held that evidence affidavits reporting the results of forensic analysis establishing that a seized substance was cocaine were “testimonial” — Justice Antonin Scalia tried to reassure that the majority was not insisting that “anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case.”

But Gordon has created some doubt on that front, according to Mulvey.

While there are some limits on the majority’s otherwise broad holding in Gordon, they come with their own challenges, notes New England Law Professor Benjamin K. Golden, who collaborated with Mulvey on an amicus brief in Gordon.

For example, one thing that could have salvaged the supervisor’s testimony in Gordon was if the supervisor had participated in or at least observed the testing conducted by the analyst, the majority suggested.

But if that is necessary, it will “require a major restructuring of how the state crime lab staffs these cases,” Golden says.

Mulvey allows that there are some cases in which the process of collecting and analyzing evidence involves more than just one custodian handing it over to another, citing the 2015 SJC case Commonwealth v. Jones.

In Jones, the court agreed with the defendant that the trial judge had erred by allowing an expert witness who was not present when the victim’s rape kit was performed to testify about how various internal and external swabs had been collected, given the testimonial nature of the notes of the person who had conducted the examination.

Mulvey hopes the SJC might seize an opportunity to provide some clarity in a case with facts like Jones now under advisement at the Appeals Court, Commonwealth v. Lujan.

Lujan was initially argued before an Appeal Court panel composed of Judges Kenneth V. Desmond Jr., Robert A. Brennan and Paul Hart Smyth on June 7, 2024, two weeks before the Supreme Court decided Smith v. Arizona.

The court invited the parties to submit supplemental memoranda addressing the application of Smith to the substitute expert testimony at issue in Lujan. Then, on March 12, the Appeals Court stayed the proceedings in Lujan until the SJC ruled in Gordon and another case, Commonwealth v. Nascimento-Depina.

On May 8, the SJC upheld the defendant’s conviction in Nascimento-Depina, ruling that violation of the defendant’s confrontation rights “did not result in a substantial risk of a miscarriage of justice.”

Once the SJC decided Gordon, the attorney for the defendant in Lujan, Patrick Levin of the Committee for Public Counsel Services, and Hampden County Assistant District Attorneys Katherine E. McMahon and William T. Joyce, filed supplemental briefs. On Sept. 30, the Appeals Court vacated the stay and took the appeal under advisement.

“Lujan is a perfect vehicle to decide some issues left unclear after Gordon,” Mulvey says.

In the meantime, practitioners must work with what they have in Gordon. To that end, Golden and Mulvey recently participated in a presentation by the Social Law Library, offering some suggestions on how to navigate the uncertain terrain.

One of their recommendations is to “find or make an expert.” Just because an analyst no longer works for the state lab, he or she may still be available, they note. However, if a party must use a substitute expert, Mulvey and Golden recommend seeking out one who has personal knowledge or participated in the original analysis or creation of a report.

An expert might also be able to base an opinion on non-hearsay sources — photographs, test printouts, or data created by a machine or algorithm without human intervention — or other non-testimonial sources, such as logs of machine inspections and calibration and other records kept in the ordinary course of business, they say.

When in doubt, practitioners could call additional witnesses who handled a piece of evidence, with a focus on those involved in the process at a point at which the other side might claim evidence was mishandled, according to Mulvey and Golden.

For defense counsel, Gordon provides an opportunity to insist on proof related to as many steps in the gathering and analyzing of evidence as possible. If they cannot cross-examine any of those steps, they can then argue that their clients’ confrontation rights have been violated, Mulvey and Golden say.