The reinvigorated Confrontation Clause: a new basis to challenge the admission of evidence from nontestifying forensic experts in white collar prosecutions.

• Author: Frongillo, Thomas C.

Federal and state prosecutors have increasingly resorted to using forensic expert testimony against defendants in white collar criminal cases. Forensic accountants testify in cases involving financial fraud, including securities, tax and money laundering violations. In environmental prosecutions, the government engages geologists, chemists, and microscopists to gather and analyze evidence of spills and releases of hazardous pollutants and chemicals. Prosecutors use forensic computer experts to prove a host of computer-related crimes, such as Internet fraud, unlawful access, and identity theft. They also recover electronic data and testify on spoliation of evidence in obstruction of justice cases. In both white and blue collar cases, however, the prosecution has sought to admit evidence from nontestifying forensic experts through surrogate witnesses, summary witnesses, other experts, and even documents to prevent the defense from cross-examining the experts.

Beginning in 2009, the Supreme Court issued a trilogy of opinions examining the reach of the Confrontation Clause of the Sixth Amendment in cases in which the prosecution sought to admit evidence and opinions of nontestifying forensic experts to prove essential elements of the crimes charged. The rulings in two of the cases--Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico (1)--have paved a new path for the defense to challenge the admission of evidence and opinions of nontestifying forensic experts. The third case, Williams v. Illinois, (2) resulted in a plurality opinion favoring the prosecution, but has limited precedential impact because a sharply divided Court could not agree on the basis for the result. As a result, the ruling in Williams may be limited to bench trials. While the trilogy of cases involved traditional blue collar crimes, white collar practitioners may rely on the holdings of Melendez-Diaz and Bullcoming in cases when the prosecution attempts to admit expert testimony through the back door.

This article examines the trilogy of Confrontation Clause cases in detail by discussing similar Confrontation Clause issues that arose in two recent white collar prosecutions and considering how they were addressed at trial. The first case, United States v. W.R. Grace, was a high-profile environmental prosecution charging the company and several Grace executives with violating the knowing endangerment provision of the Clean Air Act and defrauding the United States. The Grace verdict, an across-the-board acquittal of all defendants, occurred less than two months before the Court decided Melendez-Diaz, the first case of the trilogy. The second case, United States v. Ignasiak, was a health care fraud prosecution in which a physician was charged with illegally dispensing controlled substances to patients. The Eleventh Circuit's opinion in Ignasiak, reversing the defendant's convictions, was issued shortly after the Court decided Bullcoming, the second case in the trilogy. Through the framework of these cases, the article provides practical suggestions on how white collar practitioners may rely on the reinvigorated Confrontation Clause to preclude the admission of certain forensic evidence of nontestifying witnesses at trial.

1. The Supreme Court's Current Formulation of the Confrontation Clause

   The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (3) It guarantees a defendant's right to confront those who bear testimony against him. (4) This "bedrock procedural guarantee" applies to federal and state prosecutions. (5) While the text of the Confrontation Clause could plausibly be read to apply only to "witnesses against" the defendant who testify at trial, the Court has rejected that limitation, and held that the Confrontation Clause also applies to certain out-of-court statements offered at trial. (6) However, "not all hearsay implicates the Sixth Amendment's core concerns." (7)

   1. Crawford v. Washington

      The Court's current interpretation of the scope of the Confrontation Clause is set forth in its seminal decision Crawford v. Washington, (8) Under Crawford, criminal defendants have a constitutional right to cross-examine witnesses who make "testimonial" statements against them. (9) Testimonial statements are admissible only if

      (1) the defendant has the opportunity to cross-examine the declarant or (2) the declarant is unavailable but the defendant had an adequate prior opportunity to cross-examine the declarant. (10) The admission of nontestimonial statements does not violate the Sixth Amendment. (11)

      Crawford made clear that the admissibility of hearsay statements against criminal defendants depends mainly on whether a statement is "testimonial." (12) While the Court held that statements taken by police officers during interrogations are testimonial, (13) it declined to frame a comprehensive definition of a "testimonial" statement. (14) The Court, however, recognized that "various formulations" of a "core class" of "testimonial" statements exist, including the following three categories:

      (1) ex parte in-court testimony or its functional equivalent, including affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;

      (2) extrajudicial statements contained in formalized testimonial materials such as affidavits, depositions, prior testimony or confessions; and

      (3) statements made under circumstances that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. (15)

      After Crawford, numerous lower courts wrestled with the issue whether a particular statement was "testimonial." In its recent Confrontation Clause trilogy, the Court addressed the issue of testimonial statements in the context of the admission of opinions and evidence from nontestifying forensic experts.

   2. The Court's Recent Confrontation Clause Trilogy

1. Melendez-Diaz v. Massachusetts: Admission of Nontestifying Forensic Expert's Report Through an Affidavit Violates the Confrontation Clause

   Five years after Crawford, the Court decided Melendez-Diaz v. Massachusetts, (16) The issue in Melendez-Diaz was whether laboratory reports and certificates of analysis prepared in connection with a narcotics investigation were testimonial under Crawford, thereby implicating the defendant's Sixth Amendment confrontation rights. Up until Melendez-Diaz, lower courts were divided on this issue, (17) with the majority holding that such reports and analyses were nontestimonial. (18) In Melendez-Diaz, the Court embraced the minority position, holding that "affidavits reporting the results of forensic analysis" were testimonial. (19)

   Luis Melendez-Diaz was convicted of distributing and trafficking cocaine. As allowed by Massachusetts law, the prosecution offered in evidence three "certificates of analysis" that described the results of the forensic analysis of the substance seized from Melendez-Diaz and its weight. The certificates were signed under oath by the state laboratory analysts. Defense counsel objected to the admission of the certificates, arguing that, under Crawford and the Confrontation Clause, the certificates were testimonial, and analysts were required to testify in person. The Court granted certiorari to determine whether the certificates were testimonial, rendering the affiants "witnesses" subject to the defendant's right of confrontation.

   In a 5-4 opinion authored by Justice Scalia, (20) the Court agreed with the defense and reversed the convictions. (21) The Court held that "[tjhere is little doubt" that the certificates were in actuality affidavits and thus testimonial in nature, pointing out that Crawford mentioned affidavits twice in its description of the "core class of testimonial statements." (22) In the Court's view, the certificates were "functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.'" (23) The Court determined that the "sole purpose of the affidavits was to provide 'prima facie evidence of the composition, quality, and the net weight' of the analyzed substance." (24) "Absent a showing that the analysts were unavailable to testify at trial and that the [defendant] had a prior opportunity to cross-examine them," the Court held that the defendant "was entitled to 'be confronted with' the analysts at trial." (25)

   The majority opinion rejected several arguments raised by the prosecution and the dissent. The prosecution argued that the analysts were not subject to confrontation because they were not "accusatory" witnesses, as they did not accuse the defendant of wrongdoing. (26) The Court disagreed, concluding that the analysts "certainly provided testimony against" the defendant--that is, they provided evidence proving that the substance seized was cocaine, which was an essential element of the crime--and thus triggered the Sixth Amendment's guarantee of the defendant's right "to be confronted with the witnesses against him." (27) The prosecution and the dissent also argued that the analysts should not be subject to confrontation because they were not "conventional" witnesses of the type "whose ex parte testimony was most notoriously used at the trial of Sir Walter Raleigh." (28) The Court concluded that the purported distinctions between the analysts and so-called "conventional" witnesses did not survive scrutiny. (29)

   The Court then addressed the prosecution's contention that there is a difference, for Confrontation Clause purposes, between testimony recounting historical events, which is prone to distortion and manipulation, and testimony that is the result of neutral, scientific testing. (30) The Court rejected the premise of the argument: that the "neutral scientific...