State v. Julie L. Michaels (072106) , 219 N.J. 1 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Julie L. Michaels (A-69-12) (072106)
[NOTE: This is a companion case to State v. Reginald Roach, also filed today.]
Argued March 4, 2014 -- Decided August 6, 2014
LaVECCHIA, J., writing for a majority of the Court.
This appeal requires the Court to address whether defendant’s confrontation rights were violated by the
admission of a forensic report analyzing defendant’s blood sample, where the report was admitted into evidence
through the testimony of the report’s author -- a laboratory supervisor and qualified expert who had reviewed and
certified the test results -- without the testimony of the various individuals who had performed tasks associated with
the testing procedures.
On March 3, 2008, defendant caused a collision when her vehicle crossed the center line and struck an
oncoming car. The car’s driver and passenger were severely injured, and the passenger later died from his injuries.
Officers observing defendant at the scene of the collision and at the hospital suspected that she was under the
influence of drugs or alcohol. Defendant gave permission for blood samples to be taken but would not sign the
consent form. Defendant later admitted that she had used Xanax and cocaine on the night of the accident.
Defendant’s blood sample was sent by the local police department to NMS Labs, a private laboratory that
performs analytical testing for a number of private and public entities. Fourteen NMS analysts were involved in
various aspects of handling and performing gas chromatography/mass spectrometry testing on defendant’s blood
sample. The testing indicated that defendant’s blood sample contained cocaine, cocaine derivatives, and alprazolam,
an active ingredient in Xanax.
The testing of defendant’s blood sample produced approximately 950 pages of data, which was provided to
Dr. Barbieri, a forensic toxicologist and pharmacologist who also held the titles of Assistant Laboratory Director and
Toxicology Technical Leader at NMS Labs. Dr. Barbieri reviewed all of the data and then wrote, certified and
signed a report, concluding that defendant’s blood contained cocaine and alprazolam in such quantities that she
would have been impaired and unfit to operate a motor vehicle at the time the sample was collected.
Defendant was indicted on multiple charges including second-degree vehicular homicide while intoxicated
and third-degree assault by auto while intoxicated. At defendant’s trial, Dr. Barbieri testified about the general
processes used by NMS to analyze blood samples, the specific tests performed on defendant’s blood, and the results
of those tests. Dr. Barbieri acknowledged that there is a “human element” to the testing procedures and that he had
not conducted the tests himself. However, he stated that he had reviewed the voluminous machine-generated data
and was satisfied that the testing had been done properly and that his independent review permitted him to certify
the results. Dr. Barbieri opined that, at the time of the collision, defendant was impaired by the quantity of
alprazolam and cocaine found in her system, and that she would have been unable to drive safely.
Defendant objected to the admission of Dr. Barbieri’s report as hearsay, and the trial court found the report
admissible. At the close of the State’s case, defendant moved to strike Dr. Barbieri’s testimony, contending that the
State was required to present testimony from the persons who actually conducted the blood sample testing. The trial
court denied the motion, noting that as the lab supervisor, Dr. Barbieri could testify about the procedures that were
employed and give an opinion, based on his expertise, as to what conclusions should be drawn from that testing.
The jury found defendant guilty on all counts. Defendant moved for a new trial, raising, among other
arguments, a Sixth Amendment Confrontation Clause objection to Dr. Barbieri’s testimony. The court denied the
motion and sentenced defendant to an aggregate extended term of eighteen years’ imprisonment with twelve years
1
and two months of parole ineligibility. Defendant appealed her convictions and sentence, casting her arguments
regarding Dr. Barbieri’s testimony as a violation of the Confrontation Clause. The Appellate Division affirmed, and
this Court granted defendant’s petition for certification limited to the confrontation issue. 214 N.J. 114 (2013).
HELD: Defendant’s confrontation rights were not violated by the admission of Dr. Barbieri’s report or his
testimony regarding the blood tests and his conclusions drawn therefrom. Dr. Barbieri was knowledgeable about the
testing process, independently verified the correctness of the machine-tested processes and results, and formed an
independent conclusion about the results. Defendant’s opportunity to cross-examine Dr. Barbieri satisfied her right
to confrontation on the forensic evidence presented against her.
1. The Sixth Amendment to the United States Constitution provides in part that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against him.” The United States Supreme
Court’s current line of cases on Confrontation Clause jurisprudence begins with Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), which held that an accused’s right to confront witnesses applies to all
out-of-court statements that are “testimonial.” Under Crawford, such statements are inadmissible unless the witness
is unavailable to testify and the defendant had a prior opportunity for cross-examination. (pp. 16-20)
2. Since 2004, the United States Supreme Court has considered Crawford’s application in three cases involving
forensic reports—Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009);
Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); and Williams v. Illinois, 567
U.S. __, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2011). In Melendez-Diaz, supra, the Supreme Court reversed a
defendant’s conviction where the prosecution failed to produce any analyst to support and be cross-examined
regarding the statements contained in a forensic document. In a five-to-four decision, the Court held that laboratory
certificates setting forth the results of analysis of drug samples were testimonial statements and therefore were
inadmissible. 557 U.S. at 311, 129 S. Ct. at 2532, 174 L. Ed. 2d at 322. (pp. 21-24)
3. In Bullcoming, another five-to-four decision, the Supreme Court considered “whether the Confrontation Clause
permits the prosecution to introduce a forensic laboratory report containing a testimonial certification – made for the
purpose of proving a particular fact – through the in-court testimony of a scientist who did not sign the certification
or perform or observe the test reported in the certification.” Bullcoming, supra, 564 U.S. at __, 131 S. Ct. at 2710,
180 L. Ed. 2d at 615-16. The Court held that the forensic report was inadmissible, reasoning that the testimony of a
substitute analyst who did not perform or observe the tests and did not certify the results constituted “surrogate
testimony” that violated the defendant’s confrontation rights. Id. at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616.
Justice Sotomayor wrote a separate concurring opinion that emphasized the limited nature of the Court’s holding by
noting, among other points, that Melendez-Diaz did not stand for the proposition that every person identified as
performing some task in connection with a forensic report must be called as a witness. Id. at __, 131 S. Ct. at 2722,
180 L. Ed. 2d at 628-230 (Sotomayor, J., concurring). (pp. 24-32)
4. Most recently, in Williams, a plurality of the Court found that a defendant’s right of confrontation was not
violated by the testimony of an individual who matched a DNA profile produced by a private laboratory to the
defendant’s DNA. Williams, 567 U.S. at __, 132 S. Ct. at 2227, 183 L. Ed. 2d at 98. Notably, the plurality’s
analysis was criticized by a majority of the Court, including four dissenting members, id. at __, 132 S. Ct. at 2265,
183 L. Ed. 2d at 139 (Kagan, J., dissenting), and Justice Thomas, who joined in the plurality’s judgment, but
disavowed the reasoning, id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring in the
judgment). Because each of the Williams opinions embraces a different approach to determining whether the use of
forensic evidence violates the Confrontation Clause, and because a majority of the Supreme Court expressly
disagreed with the rationale of the plurality, there is no narrow rule that this Court can discern from Williams and
thus Williams’s force, as precedent, is at best unclear. The Court thus turns to the pre-Williams cases for more
reliable guidance on confrontation rights. (pp. 32-43)
5. Applying pre-Williams jurisprudence, the Court observes that neither Melendez-Diaz nor Bullcoming requires
that every analyst involved in a testing process must testify in order to admit a forensic report into evidence and
satisfy confrontation rights. Nor do the cases suggest that the primary analyst involved in the original testing must
testify when a different, sufficiently knowledgeable expert is available to testify. Moreover, the Court notes that it
would take confrontation law to a level that is not only impractical, but, equally importantly, is inconsistent with
prior law addressing the admissibility of an expert’s testimony in respect of the substance of underlying information
2
that he or she used in forming his or her opinion. By way of background, the Court notes that, in determining when
the facts underlying a forensic expert opinion may be disclosed to the jury, New Jersey’s evidence case law has
focused on whether the witness is knowledgeable about the particular information used in forming the opinion to
which he or she is testifying and has a means to verify the underlying information even if he or she was not the
primary creator of the data. Such law is consistent with the principle that a knowledgeable expert who is someone
other than the primary analyst who conducted a forensic test may testify to an opinion regarding testing results,
when those results have been generated by demonstrably calibrated instruments. (pp. 43-48)
6. The Court then examines defendant’s argument that her confrontation rights were violated by Dr. Barbieri’s
testimony and the admission of his certified report. Unlike in Melendez-Diaz, where no witness was offered to
testify to the statements contained in the forensic document that was admitted into evidence, here the report was
admitted through the live testimony of Dr. Barbieri, the person who prepared, signed, and certified the report, and
Dr. Barbieri was available for cross-examination. In addition, the forensic report that the Supreme Court rejected in
Bullcoming had been admitted through the testimony of a co-analyst or “surrogate” who did not serve as supervisor
or reviewer responsible for certifying the results. Here, the Court accepts that Dr. Barbieri’s report was testimonial.
However, Dr. Barbieri supervised the analysts who performed the tests, was qualified as an expert in the relevant
subject areas, analyzed the machine-generated data, and produced and certified the testimonial report in issue. As
the reviewer of the testing process and the author of the report, it was proper for Dr. Barbieri to testify to its contents
and to answer questions about the testing it reported. (pp. 49-62).
7. In response to the dissenting opinion, the Court explains that Dr. Barbieri was not merely repeating the findings
and conclusions of the analysts who conducted the testing. Rather, the findings and conclusions contained in the
report and to which he testified were his own. A truly independent reviewer or supervisor of testing results can
testify to those results and to his or her conclusions about those results, without violating a defendant’s confrontation
rights, if the testifying witness is knowledgeable about the testing process, has independently verified the correctness
of the machine-tested process and results, and has formed an independent conclusion about the results. Testimonial
facts can “belong” to more than one person if the verification and truly independent review described above are
performed and set forth on the record by the testifying witness. (pp. 62-69).
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, DISSENTING, expresses the view that the Sixth Amendment’s Confrontation Clause
bars the admission of this forensic report and the testimony of the expert because the State did not produce for cross-
examination the analyst(s) who actually performed the test on defendant’s blood.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion.
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SUPREME COURT OF NEW JERSEY
A-69 September Term 2012
072106
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS a/k/a LYNN
MICHAELS, JULIE LYNN, JOLINE
BROOKS, JODIE L. CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
Argued March 4, 2014 – Decided August 6, 2014
On certification to the Superior Court,
Appellate Division.
Gary A. Kraemer argued the cause for
appellant (Daggett, Kraemer & Gjelsvik,
attorneys; Mr. Kraemer and George T.
Daggett, on the briefs).
Frank Muroski, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney; Kenneth A. Burden and
Frank J. Ducoat, Deputies Attorney General,
of counsel; Mr. Muroski, Mr. Burden, and Mr.
Ducoat, on the briefs).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Defendant Julie Michaels was charged with second-degree
vehicular homicide, third-degree assault by auto, and four other
related charges, as well as motor vehicle citations, including
driving while intoxicated, reckless driving, possession of a
1
controlled dangerous substance in a motor vehicle, and
possession of an open container of alcohol. Laboratory results
of gas chromatography/mass spectrometry tests performed on
defendant’s blood sample, which was drawn at a hospital the
evening of her motor vehicle accident, revealed the presence of
cocaine, alprazolam (an active ingredient of Xanax), and
benzoethylene (a cocaine metabolite).
At trial, the State introduced testimony from Edward
Barbieri, Ph.D., an assistant supervisor and toxicology
technical leader from the private laboratory that had performed
the testing on defendant’s blood sample and issued a report
certifying the test results. Dr. Barbieri was responsible for
supervising the technicians and analysts who were involved in
the gas chromatography/mass spectrometry testing. He also was
responsible for their adherence to the laboratory’s policies and
protocols for the testing procedures. He had reviewed the test
results and satisfied himself that the test data accurately
identified and quantified the substances found in defendant’s
blood, and he had signed and certified the laboratory results
set forth in the report. Over defendant’s objection, the report
was admitted into evidence without the testimony of the fourteen
individuals who had performed various tasks associated with the
testing procedures. A jury convicted defendant on all counts,
and the Appellate Division affirmed defendant’s conviction.
2
We granted certification in this matter to consider
defendant’s argument that her Sixth Amendment confrontation
rights were violated because the laboratory report was admitted,
although defendant had not had the opportunity to confront each
laboratory employee who participated in the testing that
generated the results contained in the report. We now hold that
the admission of the laboratory report did not violate
defendant’s confrontation rights. The laboratory supervisor --
who testified and was available for cross-examination -- was
knowledgeable about the testing process that he was responsible
for supervising. He had reviewed the machine-generated data
from the testing, had determined that the results demonstrated
that defendant had certain drugs present in her system, and had
certified the results in a report that he had prepared and
signed.
We recognize that the forensic report in issue is
“testimonial” and that it is the type of document subject to the
Confrontation Clause. See Bullcoming v. New Mexico, 564 U.S.
__, __, 131 S. Ct. 2705, 2717, 180 L. Ed. 2d 610, 624 (2011)
(determining that signed and certified laboratory report was
formalized sufficiently to be characterized as testimonial); cf.
State v. Sweet, 195 N.J. 357, 373-74 (2008) (noting testimonial
nature of signed and certified New Jersey State Laboratory
certificates prepared for use in State prosecution), cert.
3
denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009).
However, in this matter we join the many courts that have
concluded that a defendant’s confrontation rights are not
violated if a forensic report is admitted at trial and only the
supervisor/reviewer testifies and is available for cross-
examination, when the supervisor is knowledgeable about the
testing process, reviews scientific testing data produced,
concludes that the data indicates the presence of drugs, and
prepares, certifies, and signs a report setting forth the
results of the testing. In examining the testimony and
documentary evidence challenged in this matter, we do not find
it to be equivalent to the “surrogate testimony” that the United
States Supreme Court found problematic in Bullcoming, supra, 564
U.S. at __, 131 S. Ct. at 2715-16, 180 L. Ed. 2d at 621-22.
Finding no denial of defendant’s confrontation rights in
this proceeding, we affirm defendant’s conviction.
I.
A.
On March 3, 2008, at approximately 10:15 p.m., defendant
caused a two-car collision. Danielo Diaz, the driver of the
second car, was driving northbound on Route 23 in Hardyston
Township. There, Route 23 is a two-lane road with a double
yellow center line and a speed limit of forty-five miles per
hour. Defendant was driving southbound but swerved into the
4
northbound lane as she reached the crest of a hill. Diaz
testified that he saw headlights approaching on his side of the
road, but had no time to react before defendant’s vehicle struck
his vehicle head-on.
Sergeant John Broderick, the police officer responding to
the scene, found defendant’s car straddling the yellow line
facing southbound. Diaz’s car was situated perpendicular to
defendant’s. Diaz and his passenger, Dylan Vecchiarelli,
appeared to be injured and in pain. Defendant, who was slumped
in her seat, answered Broderick’s questions in a slurred voice.
Her eyes were partly closed. When she exited her vehicle, she
did not seem to be in pain although her ankle appeared to
Broderick to be broken. Defendant seemed to Broderick to be
under the influence of drugs or alcohol.
Defendant was taken by ambulance to St. Clare’s Hospital in
Sussex County where she was met by Detective Karl Ludwig, who
had been dispatched to obtain a blood sample from her. Although
defendant initially informed Ludwig that she was Jodie Callaway
of Moscow, Iowa, it was later determined that she was Julie
Michaels of Wayne, New Jersey, and that Jodie Callaway was her
sister. When asked what had happened, defendant told Ludwig
that she had been on the wrong side of the road and hit a car.
Ludwig noted that defendant’s eyes were red and droopy, her
speech was slurred, and she was lethargic. Defendant gave
5
permission for blood samples to be taken but would not sign the
consent form. She informed Ludwig that she had not used any
alcohol that night, but had taken prescription Xanax at 3:00
p.m. She also stated that her blood would test positive for
cocaine because she had used it four days earlier. Defendant
later altered her statement, telling Ludwig that, on the night
of the accident, she had taken Xanax that belonged to her sister
and had used cocaine.
Meanwhile, Diaz and Vecchiarelli were transported by
helicopter from the scene of the accident to a trauma hospital.
Diaz remained in the hospital for about a month for injuries
that included a fractured cheekbone and nose, a broken femur
with an open wound, and bruised lungs. Vecchiarelli’s injuries
included multiple fractures of the skull, a spinal cord
fracture, a partial rupture of the thoracic aorta, lacerations
of the spleen, and a broken femur. Despite weeks of intensive
treatment for his serious injuries, Vecchiarelli’s condition
deteriorated. He died from his injuries on April 2, 2008.
Defendant’s blood sample was sent by the Hardyston Police
Department to NMS Labs, a private laboratory in Willow Grove,
Pennsylvania, that performs analytical testing for a number of
private and public entities. NMS was instructed to test the
sample for the presence of alcohol and drugs, and to determine
the quantities of any substances found. Tests were performed by
6
approximately fourteen NMS analysts.1 Specifically, small
samples, or aliquots, drawn from the original sample were
screened for alcohol and a broad range of drugs. Computer
analysis of the results of the screening tests indicated
presumptive positives for cocaine metabolites, benzodiazepines,
and marijuana products. New aliquots from the blood sample were
analyzed using a combined gas chromatography/mass spectrometry
machine.2 That testing showed that defendant’s blood sample
contained cocaine, benzoethylene (a cocaine metabolite), and
alprazolam (a type of benzodiazepine that is the active
ingredient in Xanax). Defendant’s blood tested negative for
1
Fourteen NMS employees were involved in various aspects of
handling and testing defendant’s blood sample. We refer to
these various analysts and technicians collectively as
“analysts” throughout the opinion for simplicity and because the
evidence does not detail the specific role played by each
individual.
2
As was explained at trial by the State’s expert and author of
the report on defendant’s blood testing, to perform this
testing, an analyst injects an aliquot of the blood to be tested
into the gas chromatography/mass spectrometry machine. In the
gas chromatography portion of the test, the sample is vaporized
and passes through a thin 100-foot-long tube that separates the
different compounds in the sample. The machine records the
amount of time the compounds take to pass through the tube.
When the compounds emerge from the gas chromatograph, they are
ionized by the mass spectrometer, which records the molecular
weights of the fractions generated. The machine produces graphs
that identify and quantify the compounds in the sample by
comparing the time they take to pass through the tube against
the results for the calibration and control materials, and
comparing the compounds’ molecular weights to the molecular
weights of a “library” of known compounds. The data is compared
to runs performed with calibration and control materials to
ensure the accurate operation of the machine.
7
marijuana.
The testing of defendant’s blood sample produced
approximately 950 pages of data, which was provided to Dr.
Barbieri, a forensic toxicologist and pharmacologist who held
three titles at NMS: Forensic Toxicologist, Toxicology
Technical Leader, and Assistant Laboratory Director. Dr.
Barbieri reviewed all the data in order to satisfy himself that
(1) the testing had been done according to standard operating
procedures, and (2) the results were correct. Dr. Barbieri
wrote, and then certified and signed, a report stating that
defendant’s blood contained 270 ng/mL of alprazalam, 140 ng/mL
of cocaine, and 2500 ng/mL of benzoethylene. Dr. Barbieri’s
report concluded that the presence of those quantities of drugs
in defendant’s blood would have caused her to be impaired and
unfit to operate a motor vehicle at the time the blood sample
was collected.
B.
In October 2008, defendant was indicted on charges of
second-degree vehicular homicide while intoxicated, N.J.S.A.
39:4-50, N.J.S.A. 2C:11-5 (count one); third-degree assault by
auto while intoxicated, N.J.S.A. 39:4-50, N.J.S.A. 2C:12-1(c)(2)
(count two); third-degree causing death while driving unlicensed
or with a suspended license, N.J.S.A. 39:3-40, N.J.S.A. 2C:40-
22(a) (count three); fourth-degree causing serious bodily injury
8
while driving unlicensed or with a suspended license, N.J.S.A.
39:3-40, N.J.S.A. 2C:40-22(a) (count four); third-degree giving
false information to a law enforcement officer, N.J.S.A. 2C:29-
3(b)(4) (count five); and third-degree possession of a
controlled dangerous substance, N.J.S.A. 2C:35-10(a) (count
six). Defendant also previously had been issued six motor
vehicle citations in connection with the collision.3
Defendant’s in limine motions to dismiss the indictment
were denied. The case was tried over fourteen days in February
and March 2011. The State presented testimony from Diaz, two
other drivers who had observed the collision and defendant’s
driving, several police officers including Broderick and Ludwig,
the doctor who had treated Vecchiarelli prior to his death, the
supervising nurse who had treated defendant upon her arrival at
the hospital and who had drawn the blood sample, and Dr.
Barbieri of NMS.4 Defendant presented two witnesses but did not
testify on her own behalf.
Dr. Barbieri testified about the general processes used by
3
The citations received by defendant were driving while
intoxicated, N.J.S.A. 39:4-50; driving with a revoked license,
N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; failure to
keep right, N.J.S.A. 39:4-82; possession of a controlled
dangerous substance in a motor vehicle, N.J.S.A. 39:4-49.1; and
possession of an open container of alcohol, N.J.S.A. 39:4-51b.
4
Dr. Barbieri was recognized by the court, without objection, as
a qualified expert in the fields of forensic toxicology and
pharmacology.
9
NMS to analyze blood samples, the specific tests performed on
defendant’s blood, and the results of those tests. Dr. Barbieri
acknowledged that there is a “human element” to the testing
procedures and that he had not conducted the tests himself.
However, he stated that he personally had reviewed the
voluminous machine-generated data and was satisfied that the
testing had been done properly and that his independent review
permitted him to certify the results. Dr. Barbieri opined that,
at the time of the collision, defendant’s concentration,
judgment, response time, coordination, and sense of caution
would have been impaired by the quantity of alprazalam and
cocaine found in her system, and that she would have been unable
to drive safely.
Defendant objected to the admission of Dr. Barbieri’s
report as hearsay; however, the trial court determined that no
applicable law compelled its exclusion. At the close of the
State’s case, defendant moved to strike Dr. Barbieri’s
testimony, contending that the State was required to present
testimony from the persons who actually conducted the testing
and that Dr. Barbieri did not personally perform, or assist in
performing, the tests that formed the basis of his report and
testimony. The trial court denied the motion to strike Dr.
Barbieri’s testimony, specifically noting that, “as the
supervisor of the lab, certainly he’s in a position to testify
10
about the procedures that were employed and give an opinion,
based on his expertise, what conclusions should flow from that
testing.” The trial court also denied a motion for a judgment
of acquittal on counts one and three on the ground that there
was insufficient proof of Vecchiarelli’s cause of death.
The jury found defendant guilty on all counts. The court
denied defendant’s motion for a new trial, which raised, among
other arguments, a Sixth Amendment Confrontation Clause
objection to the testimony by Dr. Barbieri. The court sentenced
defendant to an aggregate extended term of eighteen years’
imprisonment with twelve years and two months of parole
ineligibility, and life-time suspension of driving privileges.
Defendant appealed on the grounds that the trial court
should have excluded testimony by Dr. Barbieri and by
Vecchiarelli’s physician, as well as certain inculpatory
statements by defendant. She also argued that her sentence was
excessive. The Appellate Division affirmed the conviction and
sentence in an unpublished opinion.
Addressing the argument that Dr. Barbieri’s testimony
violated defendant’s confrontation rights, the Appellate
Division reviewed recent Confrontation Clause cases from the
United States Supreme Court, as well as its own published
opinion in State v. Rehmann, 419 N.J. Super. 451 (App. Div.
2011). The panel held that Dr. Barbieri’s testimony did not
11
violate defendant’s confrontation rights because Dr. Barbieri,
who was trained to perform the tests, made an independent
assessment of data collected by the analysts he supervised,
testified about the process by which samples are tested and the
tests performed on defendant’s blood, and explained the test
results. The panel noted that no questions about testing
procedures or results were asked on cross-examination that Dr.
Barbieri was not able to answer fully, and concluded that
defendant was not denied a meaningful opportunity for cross-
examination merely because Dr. Barbieri personally had not
performed the tests. In addition, the panel noted that, under
N.J.R.E. 703, Dr. Barbieri, who was properly qualified as an
expert, could rely on inadmissible hearsay evidence in forming
his independent opinion. The panel concluded that the trial
court’s other rulings were correct and that defendant’s sentence
was not excessive.
We granted defendant’s petition for certification, “limited
to the issue of whether defendant’s right of confrontation was
violated by the admission of the expert testimony and report
regarding the results of the laboratory analysis of defendant’s
blood samples.” State v. Michaels, 214 N.J. 114, 114 (2013).
II.
A.
Defendant argues that the admission of Dr. Barbieri’s
12
report and testimony violated the Confrontation Clause because
Dr. Barbieri was not the person who performed the tests
conducted on her blood sample. She asserts that the test
results, data, and charts contained in the report are
testimonial because the testing was done to produce evidence for
trial, as shown by the fact that the report was sent to the
Sussex County Prosecutor’s Office and references “State v. Julie
Michaels” as its subject matter. Based on the United States
Supreme Court’s decision in Bullcoming, defendant argues that
the analysts who performed the tests should have been subject to
cross-examination because there was a possibility of human error
in the testing and their duties involved more than simply
transcribing machine-produced data. In particular, defendant
notes that, although Dr. Barbieri certified in his report that
the samples and seals had maintained their integrity, only the
analysts who worked with the samples could have ensured that
that was the case.
Defendant emphasizes that, unlike the supervisor in
Rehmann, supra, 419 N.J. Super. at 457-59, whose testimony about
test results the Appellate Division held was permissible, Dr.
Barbieri was not closely and directly involved with the testing
on which he based his report. Defendant also asserts that the
State improperly failed to notify her before trial that Dr.
Barbieri was not the person who performed the tests, thus
13
depriving her of her right to depose the person who performed
the tests used against her if that person was not going to be
available to testify at trial.
In response to the State’s argument that defendant waived
her Confrontation Clause argument by failing to raise the issue
before or during trial, defendant asserts that she preserved her
confrontation claim by objecting to the testimony and report at
trial as unreliable hearsay evidence. Defendant also argues
that the “notice and demand” procedure of N.J.S.A. 2C:35-19 does
not justify introduction of Dr. Barbieri’s report because that
statute only applies to State Forensic Laboratories, not to
private laboratories like NMS.
B.
The State first argues that defendant waived her
Confrontation Clause argument by objecting to Dr. Barbieri’s
report only on hearsay grounds at trial. The State asserts that
the raw data provided to defendant during discovery put
defendant on notice that the tests were not conducted by Dr.
Barbieri himself. The State frames defendant’s decision not to
challenge Dr. Barbieri’s testimony on Confrontation Clause
grounds as a strategic decision with which she must live. The
State also asserts that, under N.J.R.E. 703, Dr. Barbieri was
allowed to rely on otherwise inadmissible hearsay statements,
like the raw data in this case, to form the independent opinion
14
expressed in his report and testimony. Therefore, the
underlying data was admissible to establish the basis for his
opinion.
Turning to the merits of defendant’s Confrontation Clause
argument, the State argues that Dr. Barbieri’s testimony did not
violate defendant’s confrontation rights because Dr. Barbieri
was the one who reviewed the raw data, produced the report based
on his professional evaluation of the data, and formally
certified the accuracy of the results. He thus was the author
of the testimonial statements against defendant, and defendant
was given an opportunity to cross-examine him at trial in
respect of those statements. The State also contends that
denying defendant an opportunity to confront the analysts who
conducted the tests did not violate her Confrontation Clause
rights because the data produced by those analysts was not
testimonial. The State argues that the test results were not
testimonial because they were machine generated and were not
formalized, sworn, or certified documents. Further, the State
asserts that the results were not testimonial because the
analysts performing the tests conducted them according to
standard procedures and without any knowledge of the origin of
the samples or the purpose for which the results were being
obtained. The State points out that, although NMS conducts
testing for law enforcement clients, it also conducts testing
15
for clients such as coroners, physicians, and drug treatment
facilities operating outside of the realm of law enforcement.
Finally, the State urges this Court to adopt a “workable
rule,” given the nature of modern laboratory work, where a
number of different individuals may be involved in the
procedures necessary to produce a test result and who may recall
little about any particular test. In arguing for practicality,
the State argues that this Court should examine the evidence
closely and avoid rigidly requiring the testimony of every
laboratory analyst and assistant in any way connected with
whatever testing is involved in a particular forensic laboratory
report.
III.
The Sixth Amendment to the United States Constitution
provides in part that, “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him.”5 The Clause is applicable to the States
by virtue of the Fourteenth Amendment. See Pointer v. Texas,
380 U.S. 400, 403, 85 S. Ct. 1065, 1068, 13 L. Ed. 2d 923, 926
(1965).
This appeal requires that we address whether admission of a
particular forensic report violates defendant’s confrontation
5
The New Jersey Constitution provides for like protection to an
accused. See N.J. Const. art. I, ¶ 10 (guaranteeing right of
accused “to be confronted with the witnesses against him”).
16
rights where the fourteen analysts who were involved in the
testing utilized in the certified report were not individually
called to testify at trial. The question is made difficult by
the differing analyses used by United States Supreme Court
justices in contemporary Confrontation Clause jurisprudence. We
therefore begin with the Supreme Court’s decisions on the
subject.
A.
Prior to the current turmoil over confrontation rights, the
Supreme Court had held that the Confrontation Clause allowed
admission of an out-of-court statement if the statement fit
“within a firmly rooted hearsay exception” or bore
“particularized guarantees of trustworthiness.” Ohio v.
Roberts, 448 U.S. 56, 66, 100 S. Ct. 2531, 2539, 65 L. Ed. 2d
597, 608 (1980) (explaining that if statement “bears adequate
indicia of reliability,” Confrontation Clause does not bar
admission of unavailable witness’s statement against criminal
defendant). That understanding was upended twenty-four years
later when the Supreme Court rejected the Roberts reliability
analysis and held that an accused’s right to confront witnesses
applies to all out-of-court statements that are “testimonial.”
Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374,
158 L. Ed. 2d 177, 203 (2004).
In Crawford, Justice Scalia, writing for the Court,
17
examined the confrontation right’s English common law and
statutory roots, and its development in the American colonies
leading to its inclusion in the Federal Constitution, and
concluded that the Confrontation Clause was directed at “the
civil-law mode of criminal procedure, and particularly its use
of ex parte examinations as evidence against the accused.” Id.
at 50, 124 S. Ct. at 1363, 158 L. Ed. 2d at 192. Based on its
historical analysis, the Crawford Court concluded “that the
Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Id. at 53-54, 124 S. Ct. at
1365, 158 L. Ed. 2d at 194. In other words, “[w]here
testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavailability and a
prior opportunity for cross-examination.” Id. at 68, 124 S. Ct.
at 1374, 158 L. Ed. 2d at 203.
Although Crawford’s analysis hinged on whether the out-of-
court statement was testimonial, the Court did not define
“testimonial statements.” Ibid. However, the Crawford decision
identified certain “formulations of [the] core class of
‘testimonial’ statements,” such as
ex parte in-court testimony or its
functional equivalent -- that is, material
such as affidavits, custodial examinations,
18
prior testimony that the defendant was
unable to cross-examine, or similar pretrial
statements that declarants would reasonably
expect to be used prosecutorially;
extrajudicial statements . . . contained in
formalized testimonial materials, such as
affidavits, depositions, prior testimony, or
confessions; [and] statements that were made
under circumstances which would lead an
objective witness reasonably to believe that
the statement would be available for use at
a later trial.
[Id. at 51-52, 124 S. Ct. at 1364, 158 L.
Ed. 2d at 193 (first alteration in original)
(citations and internal quotation marks
omitted).]
Importantly, whether a statement is “testimonial” was not pinned
to whether the statement was taken under oath. Id. at 52, 124
S. Ct. at 1364, 158 L. Ed. 2d at 193 (noting that unsworn
“[s]tatements taken by police officers in the course of
interrogations are also testimonial [because those]
interrogations bear a striking resemblance to examinations by
justices of the peace in England”).
A three-part test -- whether the statement was testimonial,
whether the witness was unavailable to testify, and whether
there was a prior opportunity for cross-examination -- thus
became Crawford’s new standard for assessing violations of the
Confrontation Clause. Id. at 68, 124 S. Ct. at 1374, 158 L. Ed.
2d at 203. Justices Stevens, Kennedy, Souter, Thomas, Ginsburg,
and Breyer joined Justice Scalia’s exposition of the new
19
standard, and the earlier Roberts decision was overruled.6 Id.
at 63-69, 124 S. Ct. at 1371-74, 158 L. Ed. 2d 200-03; see also
Davis v. Washington, 547 U.S. 813, 825 n.4, 126 S. Ct. 2266,
2275 n.4, 165 L. Ed. 224, 239 n.4 (2006) (“We overruled Roberts
in Crawford by restoring the unavailability and cross-
examination requirements.”). Applying the standard to the facts
in Crawford, supra, the Court held that a tape-recorded
statement made by the defendant’s wife during police
interrogation was testimonial, and its admission, without
providing the defendant the right to cross-examine her, violated
the Confrontation Clause. 541 U.S. at 38, 69, 124 S. Ct. at
1356-57, 1374, 158 L. Ed. 2d at 184, 203.
B.
Since 2004, the Court has considered Crawford’s application
in three cases involving forensic reports. Those cases are
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009); Bullcoming, supra, 564 U.S. __, 131 S.
Ct. 2705, 180 L. Ed. 2d 610; and Williams v. Illinois, 567 U.S.
__, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2011).
6
Chief Justice Rehnquist and Justice O’Connor concurred in the
judgment but dissented from the majority’s decision to overrule
Roberts. Crawford, supra, 541 U.S. at 69, 124 S. Ct. at 1374,
158 L. Ed. 2d at 203-04 (Rehnquist, C.J., dissenting). The
Chief Justice claimed that the “distinction between testimonial
and nontestimonial statements . . . is no better rooted in
history than [the Roberts] doctrine.” Ibid.
20
1.
In Melendez-Diaz, supra, a cocaine distribution and
trafficking case, a Massachusetts trial court admitted into
evidence three “certificates of analysis” setting forth the
results of forensic analysis performed by the state laboratory.
557 U.S. at 308, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320.
Under state law, the notarized certificates were admissible
without live testimony as “prima facie evidence of the
composition, quality, and the net weight of the narcotic.” Id.
at 309, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320. Thus, the
analysts were not produced as witnesses at defendant’s trial;
therefore, the defendant was not afforded the opportunity to
cross-examine the individuals who performed the tests and
certified the results. Ibid. A Massachusetts appellate court
affirmed the conviction, and the Supreme Judicial Court of
Massachusetts denied review. Ibid.
The United States Supreme Court reversed the conviction, in
a five-to-four decision, holding that the laboratory
certificates fell “within the ‘core class of testimonial
statements’” and therefore were inadmissible. Id. at 310, 129
S. Ct. at 2532, 174 L. Ed. 2d at 321 (quoting Crawford, supra,
541 U.S. at 51-52, 124 S. Ct. at 1364, 158 L. Ed. 2d at 193).
The majority opinion, authored by Justice Scalia and joined by
Justices Stevens, Souter, and Ginsburg, reaffirmed the Crawford
21
test for testimonial statements and employed that test. Id. at
310-11, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321. The Court
determined that the lab reports were “plainly affidavits” that
constituted testimonial statements because they were
“declaration[s] of facts written down and sworn to by the
declarant before an officer authorized to administer oaths”;
“solemn declaration[s] or affirmation[s] made for the purpose of
establishing or proving some fact”; “made under circumstances
which would lead an objective witness reasonably to believe that
the statement would be available for use at a later trial”; and
“functionally identical to live, in-court testimony, doing
precisely what a witness does on direct examination.” Ibid.
(first alteration in original) (internal quotation marks
omitted). The Court determined that the analysts constituted
witnesses against the defendant, and held that, absent the
state’s showing that they were unavailable to testify at trial
and that the defendant had prior opportunity to cross-examine
them, the defendant was entitled to “be confronted with the
analysts at trial.” Id. at 311, 129 S. Ct. at 2532, 174 L. Ed.
2d at 322 (internal quotation marks omitted).
Justice Thomas signed on to the majority opinion, but wrote
separately to express his position that “the Confrontation
Clause is implicated by extrajudicial statements only insofar as
they are contained in formalized testimonial materials, such as
22
affidavits, depositions, prior testimony, or confessions.” Id.
at 329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333 (Thomas, J.,
concurring) (internal quotation marks omitted). He thus
continued to adhere to the narrow view of testimonial documents
that he first expressed in his concurrence in White v. Illinois,
502 U.S. 346, 365, 112 S. Ct. 736, 747, 116 L. Ed. 2d 848, 865
(1992) (Thomas, J., concurring).
In a dissent by Justice Kennedy, in which Chief Justice
Roberts and Justices Breyer and Alito joined, those four members
declined to follow the analytic path that the majority opinion
was cutting for confrontation jurisprudence as applied to
forensic documents. Id. at 330, 129 S. Ct. at 2543, 174 L. Ed.
2d at 333 (Kennedy, J., dissenting). The dissent asserted that
the Confrontation Clause was not implicated because laboratory
analysts are not “conventional” witnesses against a defendant,
positing that the majority “swe[pt] away an accepted rule
governing the admission of scientific evidence.” Ibid. Justice
Kennedy wrote, “The immediate systemic concern is that the Court
makes no attempt to acknowledge the real differences between
laboratory analysts who perform scientific tests and other, more
conventional witnesses -- ‘witnesses’ being the word the Framers
used in the Confrontation Clause.” Ibid. In his view,
“[l]aboratory analysts who conduct routine scientific tests are
not the kind of conventional witnesses to whom the Confrontation
23
Clause refers.” Id. at 357, 129 S. Ct. at 2558, 174 L. Ed. 2d
at 350. The dissent characterized the laboratory analysts as
impartial, technical witnesses, not persons adversarial to the
defendant, and concluded that no confrontation violation arose
from admission of the laboratory certificates. Id. at 345-46,
129 S. Ct. at 2251-52, 174 L. Ed. 2d at 342-43.
2.
In 2011, in Bullcoming, supra, another five-to-four
decision, the Supreme Court considered “whether the
Confrontation Clause permits the prosecution to introduce a
forensic laboratory report containing a testimonial
certification -- made for the purpose of proving a particular
fact -- through the in-court testimony of a scientist who did
not sign the certification or perform or observe the test
reported in the certification.” 564 U.S. at __, 131 S. Ct. at
2710, 180 L. Ed. 2d at 615-16. The defendant was arrested and
charged with driving while intoxicated in New Mexico; after
obtaining a sample of the defendant’s blood, police
investigators forwarded the sample to the New Mexico Department
of Health, Scientific Laboratory Division (SLD). Id. at __, 131
S. Ct. at 2709-10, 180 L. Ed. 2d at 616. Analysts at SLD used
gas chromatography machines to identify and quantify blood
alcohol concentration levels. Id. at __, 131 S. Ct. at 2711,
180 L. Ed. 2d at 617. The results of the defendant’s blood
24
alcohol analysis were recorded onto “a standard SLD form titled
‘Report of Blood Alcohol Analysis.’” Id. at __, 131 S. Ct. at
2710, 180 L. Ed. 2d at 616. The form included a section for
identification of the “participants in the testing,” and a
section where “the forensic analyst certified his finding.”
Ibid. In particular, the SLD report contained the following:
information from the police officer (reason for the arrest, and
date/time blood was drawn); the “‘certificate of analyst,’
completed and signed by Curtis Caylor, the SLD forensic analyst
assigned to test [the defendant’s] blood sample,” which included
an affirmation that the “sample was received intact” and proper
procedures were followed; the blood alcohol concentration; and a
certification that the forensic analyst was qualified to conduct
the test. Id. at __, 131 S. Ct. at 2710-11, 180 L. Ed. 2d at
616-17. There also was a section where “the SLD examiner who
reviewed Caylor’s analysis certified that Caylor was qualified
to conduct the BAC test, and that the ‘established procedure’
for handling and analyzing [the] sample ‘ha[d] been followed.’”
Id. at __, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617 (final
alteration in original).
At trial, “the State announced that it would not be calling
SLD analyst Curtis Caylor as a witness.” Id. at __, 131 S. Ct.
at 2711, 180 L. Ed. 2d at 618. The trial court admitted the
blood report as a business record, over defense counsel’s
25
objection, during the testimony of “an SLD scientist who had
neither observed nor reviewed Caylor’s analysis.” Id. at __,
131 S. Ct. at 2712, 180 L. Ed. 2d at 618. The defendant was
convicted, and the state appellate court and state supreme court
each affirmed the conviction. Id. at __, 131 S. Ct. at 2712-13,
180 L. Ed. 2d at 618-19. Specifically, the state supreme court,
while acknowledging that the report was testimonial, concluded
that the substitute analyst served as a surrogate witness, such
that there was no violation of the defendant’s right of
confrontation. Id. at __, 131 S. Ct. at 2713, 180 L. Ed. 2d at
619.
The Supreme Court reversed and held, in an opinion by
Justice Ginsberg, that “surrogate testimony of that order does
not meet the constitutional requirement” of confrontation. Id.
at __, 131 S. Ct. at 2710, 180 L. Ed. 2d at 616. The Court’s
holding was joined by Justices Scalia, Thomas, Sotomayor, and
Kagan.
Justice Ginsburg first found that the forensic report in
issue was testimonial by analogizing the report to the
certifications in Melendez-Diaz and underscoring the
similarities: “[l]ike the analysts in Melendez-Diaz, analyst
Caylor tested the evidence and prepared a certificate concerning
the result of his analysis”; and “[l]ike the Melendez-Diaz
certificates, Caylor’s certificate is ‘formalized’ in a signed
26
document, headed a ‘report.’” Id. at __, 131 S. Ct. at 2717,
180 L. Ed. 2d at 624 (citations omitted). Notwithstanding that
Caylor’s SLD report was not notarized, it was determined that
the formalities of the report sufficed to render its contents
testimonial. Ibid.
The opinion then addressed whether the surrogate witness
satisfied the Confrontation Clause requirements. Id. at __, 131
S. Ct. at 2714-16, 180 L. Ed. 2d at 620-23. Justice Ginsberg
noted that Caylor’s representations in the SLD report (that the
blood sample was intact, that proper procedures were followed,
and that the analysis was valid) were proper subjects for cross-
examination. Id. at __, 131 S. Ct. at 2714, 180 L. Ed. 2d at
620-21. With cross-examination concerns in mind, the Court
concluded that the surrogate witness did not satisfy the
defendant’s confrontation rights because the surrogate’s
testimony “could not convey what Caylor knew or observed about
the events his certification concerned, i.e., the particular
test and testing process he employed.” Id. at __, 131 S. Ct. at
2715, 180 L. Ed. 2d at 622 (footnote omitted). Simply put, the
surrogate did not certify the report or perform or observe the
tests and, therefore, cross-examination of the surrogate would
not satisfy the defendant’s confrontation rights.
Justice Scalia joined the majority opinion in full,
including Part IV, which addressed and dismissed concerns that
27
were voiced by parties and the dissent about the undue
testimonial burdens that would be placed on forensic analysts
when the Court’s holding was applied to the many situations
where multiple participants are involved in forensic testing,
and the retesting of laboratory samples that seemingly would be
necessitated in the holding’s wake. Id. at __, 131 S. Ct. at
2717-19, 180 L. Ed. 2d at 624-26.
Part IV is unusual in that only Justice Scalia joined in
that part of the opinion. Neither Justice Ginsberg nor any of
the other justices who joined her opinion adopted that section’s
dismissal of the practical concerns implicated by the holding’s
direction for forensic reports. In addition, Justices Thomas
and Ginsberg did not join in footnote six of the opinion, which
reviewed the “primary purpose” analysis used in the appeal to
determine whether the SLD document involved testimonial
statements. Id. at __ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed.
2d at 620 n.6.7
Justice Sotomayor also wrote a separate concurring opinion
that emphasized the limited nature of the Court’s holding. Id.
at __, 131 S. Ct. at 2719, 180 L. Ed. 2d at 626 (Sotomayor, J.,
7
As Justice Thomas previously had emphasized in his separate
opinion in Melendez-Diaz, supra, his view was that the
testimonial nature of statements depended on their formality.
557 U.S. at 329, 129 S. Ct. at 2543, 174 L. Ed. 2d at 333
(Thomas, J., concurring). His rejection of the articulation of
the primary purpose test in Bullcoming is consistent with that
view.
28
concurring). Her concurrence highlighted factual circumstances
that were not presented in Bullcoming:
First, this is not a case in which the
State suggested an alternate purpose, much
less an alternate primary purpose, for the
[SLD] report. . . .
Second, this is not a case in which the
person testifying is a supervisor, reviewer,
or someone else with a personal, albeit
limited, connection to the scientific test
at issue. . . . It would be a different
case if, for example, a supervisor who
observed an analyst conducting a test
testified about the results or a report
about such results. We need not address
what degree of involvement is sufficient
because here [the surrogate who testified]
had no involvement whatsoever in the
relevant test and report.
Third, this is not a case in which an
expert witness was asked for his independent
opinion about underlying testimonial reports
that were not themselves admitted into
evidence. See Fed. Rule Evid. 703
(explaining that facts or data of a type
upon which experts in the field would
reasonably rely in forming an opinion need
not be admissible in order for the expert’s
opinion based on the facts and data to be
admitted). As the Court notes, ante, at
___, 180 L. Ed. 2d at 622, the State does
not assert that [the surrogate] offered an
independent, expert opinion about
Bullcoming’s blood alcohol concentration.
Rather, the State explains, “[a]side from
reading a report that was introduced as an
exhibit, [the surrogate] offered no opinion
about [Bullcoming’s] blood alcohol content
. . . .” . . . We would face a different
question if asked to determine the
constitutionality of allowing an expert
witness to discuss others’ testimonial
statements if the testimonial statements
29
were not themselves admitted as evidence.
Finally, this is not a case in which
the State introduced only machine-generated
results, such as a printout from a gas
chromatograph. . . . [W]e do not decide
whether . . . a State could introduce
(assuming an adequate chain of custody
foundation) raw data generated by a machine
in conjunction with the testimony of an
expert witness.
[Id. at ___, 131 S. Ct. at 2722, 180 L. Ed.
2d at 628-30 (Sotomayor, J., concurring).]
In making those important points, Justice Sotomayor’s
opinion foreshadowed many of the questions that courts such as
ours have had to wrestle with in the wake of the Supreme Court’s
contemporary Confrontation Clause cases. See, e.g., Marshall v.
People, 309 P.3d 943, 947-48 (Colo. 2013) (listing cases that
have addressed just “[the] question of whether supervisor
testimony satisfies the Confrontation Clause when the supervisor
prepares or signs the report”), cert. denied, 82 U.S.L.W. 3685
(U.S. May 27, 2014). Importantly, she returned the discussion
in Bullcoming to the notable point that Melendez-Diaz, in
addressing a circumstance in which there was a failure to call
any witnesses at all in connection with the forensic report in
issue, did not stand for the proposition that every person
identified as performing some task in connection with a forensic
report must be called as a witness.
[N]ot . . . every person noted on the [SLD]
report must testify. As . . . explained in
30
Melendez-Diaz, it is not the case 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 . . . .
[Id. at __ n.2, 131 S. Ct. at 2721 n.2, 180
L. Ed. 2d at 627 n.2 (internal quotation
marks omitted).]
Justice Sotomayor’s separate opinion has helped curb the
belief that Bullcoming stands for the proposition that forensic
reports require, for their admission, the testimony of all
analysts involved in the handling and testing of a sample used
in any forensic analysis. See, e.g., Ware v. State, __ So. 3d
__, __ (Ala. 2014) (slip op. at 16); Jenkins v. State, 102 So.
3d 1063, 1066 (Miss. 2012), cert. denied, __ U.S. __, 133 S. Ct.
2856, 186 L. Ed. 2d 914 (2013); State v. Eagle, 835 N.W.2d 886,
898 (S.D. 2013).
Notably, there also was a dissent in Bullcoming, supra,
authored by Justice Kennedy and joined by Chief Justice Roberts,
Justice Breyer and Justice Alito, that expressed disagreement
with “the new and serious misstep of extending [Melendez-Diaz’s]
holding to instances like this one.” 564 U.S. at __, 131 S. Ct.
at 2723, 180 L. Ed. 2d at 630 (Kennedy, J., dissenting).
Building on his dissent in Melendez-Diaz, Justice Kennedy
focused on “[a]dditional reasons, applicable to the extension of
that doctrine and to the new ruling in this case,” for his
31
objection to the majority’s confrontation theory. Ibid. He
termed “requiring the State to call the technician who filled
out a form and recorded the results of a test . . . a hollow
formality.” Id. at __, 131 S. Ct. at 2724, 180 L. Ed. 2d at
632. He pointed to the varying principles that “have weaved in
and out of the Crawford jurisprudence,” and expressed serious
reservations about the rationale employed by the majority:
“That the Court in the wake of Crawford has had such trouble
fashioning a clear vision of that case’s meaning is unsettling
. . . .” Id. at __, 131 S. Ct. at 2725-26, 180 L. Ed. 2d at
632-33. The dissent concluded with a strong call to reexamine
the Court’s Confrontation Clause jurisprudence:
Seven years after its initiation, it bears
remembering that the Crawford approach was
not preordained. This Court’s missteps have
produced an interpretation of the word
“witness” at odds with its meaning elsewhere
in the Constitution . . . and at odds with
the sound administration of justice. It is
time to return to solid ground.
[Id. at __, 131 S. Ct. at 2728, 180 L. Ed.
2d at 636 (citation omitted).]
3.
Most recently, the Supreme Court issued Williams, supra, a
case involving a DNA profile produced by a private laboratory,
Cellmark. The profile was discussed in testimony by a police
analyst who matched it to the defendant’s DNA. 567 U.S. at __,
132 S. Ct. at 2227, 183 L. Ed. 2d at 98. The analyst used
32
information from a DNA profile created from crime scene samples
by another analyst in rendering her opinion that that profile
matched the DNA profile that she herself had created from the
defendant’s buccal swab. Id. at __, 132 S. Ct. at 2240, 2243-
44, 183 L. Ed. 2d at 112, 115-16. A plurality opinion by
Justice Alito, joined by Chief Justice Roberts and Justices
Kennedy and Breyer, set forth several rationales for concluding
that the defendant’s right of confrontation was not violated by
the testimony. We refer to this as the plurality opinion,
although the analysis is criticized by a majority of the Court,
see id. at __, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan,
J., dissenting), including Justice Thomas, who joined in the
judgment but disavowed the reasoning, id. at __, 132 S. Ct. at
2255, 183 L. Ed. 2d at 129 (Thomas, J., concurring).
Two key analyses are set forth in Justice Alito’s opinion.
Justice Alito first reasoned that “[o]ut-of-court statements
that are related by the expert solely for the purpose of
explaining the assumptions on which [her] opinion rests are not
offered for their truth and thus fall outside the scope of the
Confrontation Clause.” Id. at __, 132 S. Ct. at 2228, 183 L.
Ed. 2d at 99 (plurality opinion). In opining that the Cellmark
DNA profile was never admitted for its truth, Justice Alito
reasoned,
[t]his conclusion is entirely consistent
33
with Bullcoming and Melendez-Diaz. In those
cases, the forensic reports were introduced
into evidence, and there is no question that
this was done for the purpose of proving the
truth of what they asserted: in Bullcoming
that the defendant’s blood alcohol level
exceeded the legal limit and in Melendez-
Diaz that the substance in question
contained cocaine. Nothing comparable
happened here. In this case, the Cellmark
report was not introduced into evidence. An
expert witness referred to the report not to
prove the truth of the matter asserted in
the report, i.e., that the report contained
an accurate profile of the perpetrator’s
DNA, but only to establish that the report
contained a DNA profile that matched the DNA
profile deduced from [Williams’s] blood.
[Id. at __, 132 S. Ct. at 2240, 183 L. Ed.
2d at 112.]
Alternatively, Justice Alito’s opinion states that “even if
the report produced by Cellmark had been admitted into evidence,
there would have been no Confrontation Clause violation” because
the report was not produced for the primary purpose of accusing
a targeted individual. Id. at __, 132 S. Ct. at 2228, 183 L.
Ed. 2d at 99. “The report was sought not for the purpose of
obtaining evidence to be used against [Williams], who was not
even under suspicion at the time, but for the purpose of finding
a rapist who was on the loose.” Ibid. This alternative
analysis -- promoting a targeted-accusation test -- provoked
criticism from other Court members, who asserted that the
opinion threw into disorder the Court’s previously settled test
for assessing whether evidence is testimonial for confrontation
34
purposes. Id. at __, 132 S. Ct. at 2274, 183 L. Ed. 2d at 149
(Kagan, J., dissenting). However, before turning to the
dissent’s disagreement with Justice Alito’s plurality opinion,
it is noteworthy that even within the plurality there were
concurring opinions.
Justice Breyer, who also joined Justice Alito’s opinion,
issued a concurring opinion in which he largely agreed with the
plurality, but expressed his view that “neither the plurality
nor the dissent answers adequately: How does the Confrontation
Clause apply to the panoply of crime laboratory reports and
underlying technical statements written by (or otherwise made
by) laboratory technicians?” Id. at __, 132 S. Ct. at 2245, 183
L. Ed. 2d at 117 (Breyer, J., concurring). Addressing the
dissent specifically, Justice Breyer critically noted that its
reasoning would “require[e] the prosecution to call all of the
laboratory experts” who worked on a matter. Id. at __, 132 S.
Ct. at 2246, 183 L. Ed. 2d at 118. Ultimately, Justice Breyer
stated, “I adhere to the dissenting view set forth in Melendez-
Diaz and Bullcoming, under which the Cellmark report would not
be considered ‘testimonial’ and barred by the Confrontation
Clause.” Id. at __, 132 S. Ct. at 2248, 183 L. Ed. 2d at 121.
Justice Thomas concurred only in the judgment of the Alito
plurality opinion. Id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d
at 129 (Thomas, J., concurring in the judgment). In his view,
35
“the disclosure of Cellmark’s out-of-court statements through
the expert testimony of [the analyst who performed the DNA
match] did not violate the Confrontation Clause.” Ibid.
However, he “share[d] the dissent’s view of the plurality’s
flawed analysis,” and only reached his conclusion “because
Cellmark’s statements lacked the requisite ‘formality and
solemnity’ to be considered ‘testimonial’ for purposes of the
Confrontation Clause.” Ibid. (quoting Michigan v. Bryant, 562
U.S. __, __, 131 S. Ct. 1143, 1168, 179 L. Ed. 2d 93, 120 (2011)
(Thomas, J., concurring in judgment)).
Justice Kagan authored a dissent, which was joined by
Justices Scalia, Ginsburg, and Sotomayor. Id. at __, 132 S. Ct.
at 2264, 183 L. Ed. 2d at 138 (Kagan, J., dissenting). In a
single paragraph, Justice Kagan captured the splintered
viewpoints existing among the Court’s members:
The Court today disagrees [that Williams’s
confrontation rights were violated], though
it cannot settle on a reason why. Justice
Alito, joined by three other Justices,
advances two theories -- that the expert’s
summary of the Cellmark report was not
offered for its truth, and that the report
is not the kind of statement triggering the
Confrontation Clause’s protection. . . .
[I]n all except its disposition, his opinion
is a dissent: Five Justices specifically
reject every aspect of its reasoning and
every paragraph of its explication. Justice
Thomas, for his part, contends that the
Cellmark report is nontestimonial on a
different rationale. But no other Justice
joins his opinion or subscribes to the test
36
he offers.
[Id. at __, 132 S. Ct. at 2265, 183 L. Ed.
2d at 139 (citations omitted).]
On the merits of the case, Justice Kagan found that “the
[Cellmark] report is, in every conceivable respect, a statement
meant to serve as evidence in a potential criminal trial,”
putting the report squarely within the realm of testimonial
statements. Id. at __, 132 S. Ct. at 2275, 183 L. Ed. 2d at
151. In concluding, Justice Kagan expressed her frustration
with the results flowing from the Court’s divergent opinions:
The five Justices who control the outcome of
today’s case agree on very little. Among
them, though, they can boast of two
accomplishments. First, they have approved
the introduction of testimony at Williams’s
trial that the Confrontation Clause, rightly
understood, clearly prohibits. Second, they
have left significant confusion in their
wake. What comes out of four Justices’
desire to limit Melendez-Diaz and Bullcoming
in whatever way possible, combined with one
Justice’s one-justice view of those
holdings, is -- to be frank -- who knows
what. Those decisions apparently no longer
mean all that they say. Yet no one can tell
in what way or to what extent they are
altered because no proposed limitation
commands the support of a majority.
[Id. at __, 132 S. Ct. at 2277, 183 L. Ed.
2d at 152.]
IV.
A.
Normally we would turn to the Supreme Court’s most recent
37
decision in an area of law to guide us in our interpretation and
application of the Court’s case law. However, like a number of
state high courts and federal courts of appeal, we find that the
fractured holdings of Williams provide little guidance in
understanding when testimony by a laboratory supervisor or co-
analyst about a forensic report violates the Confrontation
Clause. See Jenkins v. United States, 75 A.3d 174, 184 (D.C.
2013) (noting that Williams “has not provided any clarity” to
Confrontation Clause jurisprudence); State v. Ortiz-Zape, 743
S.E.2d 156, 161 (N.C. 2013) (noting “lack of definitive
guidance” provided by Williams), cert. denied, 82 U.S.L.W. 3685
(U.S. May 27, 2014).
A case may be “of questionable precedential value” where “a
majority of the Court expressly disagree[s] with the rationale
of the plurality.” Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 66, 116 S. Ct. 1114, 1128, 134 L. Ed. 2d 252, 273 (1996).
The general rule for interpreting opinions where no single
rationale is espoused by a majority of the Court is that “the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the narrowest
grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S. Ct.
990, 993, 51 L. Ed. 2d 260, 266 (1977) (internal quotation marks
omitted).
However, as recognized by the Court of Appeals for the
38
District of Columbia in attempting to interpret Williams, the
Marks approach “works only when the narrowest opinion actually
does represent ‘a common denominator.’ If one opinion ‘does not
fit entirely within a broader circle drawn by the others,’ the
Marks approach . . . would ‘turn a single opinion’ to which
‘eight of nine justices do not subscribe’ into law.’” Young v.
United States, 63 A.3d 1033, 1043 (D.C. 2013) (quoting King v.
Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991), cert. denied, 503
U.S. 918, 112 S. Ct. 1290, 117 L. Ed. 2d 514 (1992)). Rather,
as the Court of Appeals for the Third Circuit has noted, in
cases where the rationales given in the multiple opinions are
not subsets of each other, “no particular standard constitutes
the law of the land, because no single approach can be said to
have the support of a majority of the Court.” Rappa v. New
Castle Cnty., 18 F.3d 1043, 1058 (3d Cir. 1994); see also State
v. Deadwiller, 834 N.W.2d 362, 373 (Wis. 2013) (“If no
theoretical overlap exists between the rationales employed by
the plurality and the concurrence, ‘the only binding aspect of
the fragmented decision . . . is its specific result.’”
(alteration in original) (quoting Berwind Corp. v. Comm’r of
Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002), cert. denied, 538
U.S. 1012, 123 S. Ct. 1927, 155 L. Ed. 848 (2003)) (internal
quotation marks omitted)).
We find that Williams is such a case for the following
39
reasons.
Justice Alito, in his four-justice plurality opinion, found
no Confrontation Clause violation because (1) the expert
witness’s reference to the laboratory report in question was not
an assertion that the information in the report was true,
Williams, supra, 567 U.S. at __, 132 S. Ct. at 2240, 183 L. Ed.
2d at 111-12; and (2) the report was not testimonial because it
was not produced for the primary purpose of accusing a specific,
known defendant, id. at __, 132 S. Ct. at 2243-44, 183 L. Ed. 2d
at 115-16. Justice Thomas, writing only for himself, concurred
in the result because he also concluded that the report was not
testimonial. Id. at __, 132 S. Ct. at 2255, 183 L. Ed. 2d at
129 (Thomas, J., concurring in the judgment). However, he
applied an entirely different test, focusing on the formality
and solemnity of the statement rather than whether its primary
purpose was accusatory. Id. at __, 132 S. Ct. at 2259-60, 183
L. Ed. 2d at 133-34. He also disagreed that the report had not
been introduced for its truth. Id. at __, 132 S. Ct. at 2257,
183 L. Ed. 2d at 130. Justice Kagan, in a four-justice dissent,
disagreed with both the rationales articulated by the plurality
and with the rationale articulated by Justice Thomas. Id. at
__, 132 S. Ct. at 2265, 183 L. Ed. 2d at 139 (Kagan, J.,
dissenting). Rather, the dissent found that the report was
testimonial because it was intended to serve as evidence in a
40
criminal trial and that the manner of its introduction failed to
satisfy the defendant’s confrontation rights. Id. at __, 132 S.
Ct. at 2267-68, 183 L. Ed. 2d at 142.
In short, each of those three opinions in Williams embraces
a different approach to determining whether the use of forensic
evidence violates the Confrontation Clause, and there is no
narrow rule that would have the support of a majority of the
Supreme Court that we can discern from the opinions in Williams.
Further, Williams advances a wholly new approach to when a
forensic document will be deemed testimonial, and that approach
diverges from the primary purpose test that had been applied
previously.
We find Williams’s force, as precedent, at best unclear.
Without more definitive evidence that the Court is adopting an
approach other than the primary purpose test for use in
determining when a forensic document is testimonial, we are
reluctant to conclude that the primary purpose test has been
abandoned.
Moreover, since the Supreme Court’s Crawford decision and
its subsequent cases applying the “primary purpose” test to
various hearsay statements made to police,8 our Court has
8
See Davis, supra, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d
224 (addressing consolidated cases Davis v. Washington, where
Court found admissible victim’s 911 call in assault case, and
Hammon v. Indiana, where Court held inadmissible affidavit from
41
followed the “primary purpose” test to distinguish between non-
testimonial and testimonial statements when determining whether
a violation of the Confrontation Clause has occurred. See State
ex rel. J.A., 195 N.J. 324, 348-51 (2008) (finding that, because
non-appearing eyewitness’s statement to police about robbery and
robbers’ flight was testimonial, statement’s admission violated
defendant’s confrontation rights); State v. Buda, 195 N.J. 278,
304-08 (2008) (holding battered child’s statement to mother and
separate statement during hospital admission to child services
worker were not testimonial and therefore admission of
statements did not violate defendant’s confrontation rights).9
domestic violence victim interviewed by police at crime scene);
see also Bryant, supra, 562 U.S. at __, 131 S. Ct. at 1150, 179
L. Ed. 2d at 101-02 (holding admissible statement by victim to
police about shooter’s identity because primary purpose was to
respond to ongoing emergency).
9
The primary purpose test also has been used to discern whether
statements in forensic reports were testimonial. In Sweet,
supra, 195 N.J. at 373-74, we distinguished foundational
documents from signed and certified State Laboratory
certificates on the basis that the former were not
“testimonial.” Sweet involved Breathalyzer foundational
documents, specifically ampoule testing certificates and breath
testing instrument inspection certificates. Id. at 370-71. We
noted that those foundational records constituted hearsay but
were admissible as business records under N.J.R.E. 803(c)(3),
and not “testimonial” so as to raise confrontation concerns.
Id. at 372-74. A similar observation was made in State v. Chun
when considering Alcotest blood alcohol test results. 194 N.J.
54, 142, cert. denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed.
2d 41 (2008). We noted that the foundational documents showing
that the device was in good working condition constituted
admissible hearsay as business records, without risking
violation of a defendant’s confrontation rights. Ibid.
42
Accordingly, we adhere to that approach.
Furthermore, the divergent analytic approaches taken in
Williams with respect to the testimonial nature of the Cellmark
report also undermine the decision’s value in assessing, in any
given circumstance involving forensic evidence, whether a
defendant’s confrontation rights were violated. Accordingly, we
turn for more reliable guidance in that respect to pre-Williams
Confrontation Clause law.
B.
In Melendez-Diaz, supra, no witness was offered to support
and be cross-examined in respect of the statements contained in
the forensic document that was admitted into evidence without
live testimony. 557 U.S. at 308-09, 129 S. Ct. at 2531, 174 L.
Ed. 2d at 320. In Bullcoming, supra, a forensic report was
admitted into evidence through the testimony of a co-worker who
did not observe the work of the analyst who performed the
testing, serve as the analyst’s supervisor, or certify the
results obtained by the analyst whose work was contained in the
report as a second independent reviewer. 564 U.S. at __, 131 S.
Ct. at 2709-10, 180 L. Ed. 2d at 616. The holdings in those two
cases can be understood based on the peculiar and stark facts in
each. That said, it is far from clear that either case compels
a broad new obligation requiring testimony by multiple analysts
involved in every kind of forensic testing that produces a
43
report used in a criminal case against a defendant.
First, neither Bullcoming’s holding nor Melendez-Diaz’s
requires that every analyst involved in a testing process must
testify in order to admit a forensic report into evidence and
satisfy confrontation rights. That conclusion was underscored
in Justice Sotomayor’s observations on Melendez-Diaz in
Bullcoming, supra. See 564 U.S. at __ n.2, 131 S. Ct. at 2721
n.2, 180 L. Ed. 2d at 627 n.2 (Sotomayor, J., concurring).
Justice Kagan’s dissent in Williams, supra, makes the same
point. See 567 U.S. at __ n.4, 132 S. Ct. at 2273 n.4, 183 L.
Ed. 2d at 148 n.4 (Kagan, J., dissenting). The fact that no
member of the Court except Justice Scalia joined Section IV of
Bullcoming further suggests that all of the other justices
harbor some level of disquiet over the necessity and
practicality of rigidly interpreting the Confrontation Clause to
compel the testimony of all persons who handled or were involved
in the forensic testing of a sample.
Second, neither Melendez-Diaz nor Bullcoming lead to the
conclusion that in every case, no matter the type of testing
involved or the type of review conducted by the person who does
testify, the primary analyst involved in the original testing
must testify to avoid a Confrontation Clause violation. In
Melendez-Diaz, no analyst testified. In Bullcoming, the
surrogate analyst who testified was found to lack sufficient
44
direct knowledge about the blood alcohol testing and the
conclusions in the blood alcohol report that the surrogate
neither certified nor separately reviewed. We do not find that
either Melendez-Diaz or Bullcoming stands for the proposition
that in all cases the primary analyst who performed the test
must testify when a different, sufficiently knowledgeable expert
is called to testify at trial. That would take the holdings of
those decisions to a new level, which we decline to do when the
Supreme Court has not done so.
Moreover, it would take confrontation law to a level that
is not only impractical, but, equally importantly, is
inconsistent with our prior law addressing the admissibility of
an expert’s testimony in respect of the substance of underlying
information that he or she used in forming his or her opinion.
Even prior to the Supreme Court’s reexamination of the
Confrontation Clause in Crawford and our subsequent articulation
of the primary purpose test in J.A. and Buda, we had grappled
with the admissibility of medical reports and other forensic
evidence under our evidence rules. As noted by the State in
this case, N.J.R.E. 703 allows a testifying expert to rely on
inadmissible facts or data as long as those facts or data are
“of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject.”
N.J.R.E. 705 further provides that, although an expert “may
45
testify in terms of opinion or inference and give reasons
therefor without prior disclosure of the underlying facts or
data, . . . [t]he expert may in any event be required to
disclose the underlying facts or data on cross-examination.”
While not a substitute for a confrontation analysis as to when
the proponent of the underlying information must be produced for
cross-examination, it provides necessary background to our
analysis of the forensic evidence in issue.
Among the documents that may properly be relied on by an
expert witness under Rule 703 are nontestimonial foundational
documents. We have previously held that documents demonstrating
that a machine is in good working condition and is calibrated
correctly are within this class of nontestimonial foundational
documents because they do not report past facts and are not
generated in order to establish a fact that is an element of a
criminal offense. See Sweet, supra, 195 N.J. at 372-74 (noting
admissibility of ampoule testing certificates and breath testing
instrument inspection certificates because nontestimonial);
State v. Chun, 194 N.J. 54, 142-44 (commenting similarly for
Alcotest blood alcohol test results in respect of foundational
documents that show device is in good working condition), cert.
denied, 555 U.S. 825, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008).
A number of other courts similarly have found that the
introduction at trial of calibration records does not violate
46
the Confrontation Clause. See, e.g., People v. Pealer, 985
N.E.2d 903, 907-08 (N.Y.), cert. denied, __ U.S. __, 134 S. Ct.
105, 187 L. Ed. 2d 77 (2013); Commonwealth v. Dyarman, 73 A.3d
565, 574 (Pa. 2013), cert. denied, __ U.S. __, 134 S. Ct. 948,
187 L. Ed. 2d 785 (2014); Jones v. State, 982 N.E.2d 417, 428
(Ind. Ct. App.), transfer denied, 987 N.E.2d 70 (Ind. 2013).
Although a hearsay analysis is not a replacement for a
confrontation analysis, we note further that in the application
of N.J.R.E. 808’s business records hearsay exception to
scientific reports and records containing embedded information
we eschew admission of subjective, complex hearsay statements.
The admissibility of such reports depends on factors including
“the relative degrees of objectivity and subjectivity involved
in the procedure; the regularity with which these analyses are
done; [and] the routine quality of each analysis.” State v.
Matulewicz, 101 N.J. 27, 30 (1985) (addressing laboratory report
prepared by State Police chemist). Recent cases in this context
continue to connect the degree of complexity of the analysis
with the importance of allowing the other party to cross-examine
the expert who conducted that analysis. See Agha v. Feiner, 198
N.J. 50, 65-67 (2009) (differentiating between “straightforward
observations” contained in expert reports that may be admitted
for their truth without an opportunity for cross-examination of
the declarant, and statements of “diagnosis” “critical to the
47
primary issue in the case” which may not be); Chun, supra, 194
N.J. at 142 (finding routine Breathalyzer calibration test
reports admissible as business records); Brun v. Cardoso, 390
N.J. Super. 409, 422 (App. Div. 2006) (rejecting medical
document as business record based on complexity of MRI reading
and diagnosis).
In determining when the facts underlying a forensic expert
opinion may be disclosed to the jury, our evidence case law has
focused on whether the witness is knowledgeable about the
particular information used in forming the opinion to which he
or she is testifying and has a means to verify the underlying
information even if he or she was not the primary creator of the
data. Our evidence law is thus consistent with the principle
that a knowledgeable expert who is someone other than the
primary analyst who conducted a forensic gas chromatography/mass
spectrometry test may testify to an opinion regarding testing
results, when those results have been generated by demonstrably
calibrated instruments. Accord Ortiz-Zape, supra, 743 S.E.2d at
161-62 (holding that expert’s use of machine-generated raw data,
consistent with North Carolina’s Evidence Rule 703, does not
violate Confrontation Clause when defendant has opportunity to
cross-examine expert who rendered opinion based on that data).
With that backdrop, we examine the testimony of Dr.
Barbieri that was challenged in this matter.
48
V.
A.
In this appeal, defendant argues that her confrontation
rights were violated by Dr. Barbieri’s testimony and the
admission of his certified report. She focuses on Dr.
Barbieri’s testimony and opinion that, based on the nature and
quantity of drugs found in defendant’s blood sample from testing
procedures carried out by analysts in the laboratory he
supervised, defendant was drug impaired at the time of her motor
vehicle accident. The evolution of defendant’s argument
deserves brief mention.
At trial, defendant objected to the admission of Dr.
Barbieri’s three-page report on the basis that it was
inadmissible hearsay because Dr. Barbieri testified to someone
else’s findings rather than his own. The State emphasized that
Dr. Barbieri testified that he personally reviewed the data
generated from the gas chromatography/mass spectrometry tests
and that he was the one who drafted and signed the report
setting forth the results and his opinion. There was no quoting
of another person’s findings in Dr. Barbieri’s report; it only
referenced machine-generated data identifying and quantifying
the drugs found in defendant’s blood sample.
The trial court rejected defendant’s hearsay argument as a
basis to exclude the report, and rightly so. Dr. Barbieri
49
examined and used the raw data generated by the gas
chromatography/mass spectrometry machines in preparing his
report and the conclusions that he reached. This case is unlike
Agha, supra, 198 N.J. at 67, where an expert testified based on
a hospital report containing another doctor’s subjective
statements and conclusions. Under those circumstances, we held
that the statements contained in the report were hearsay and
could not be admitted for their truth through the expert’s
testimony. Ibid.
Later, at the close of the State’s case, defendant filed a
motion to strike Dr. Barbieri’s testimony, arguing that the
State was required to produce the person who actually performed
the testing about which Dr. Barbieri testified. Defendant did
not expressly claim a violation of her rights under the
Confrontation Clause. The trial court denied the motion,
explaining that “[a]s the supervisor of the lab, certainly [Dr.
Barbieri is] in a position to testify about the procedures that
were employed and give an opinion, based upon his expertise,
[on] what conclusions should flow from that testing.” The court
indicated that the weight to be given to the testimony would be
up to the jury, but it declined “to exclude [Dr. Barbieri’s]
testimony because he did not personally perform the tests.”
In a post-trial motion and when the case was appealed to
the Appellate Division, defendant cast her argument about Dr.
50
Barbieri’s testimony as a violation of the Confrontation Clause.
The Appellate Division addressed that Confrontation Clause
argument, and we do as well. However, the State makes a strong
argument that defendant waived her Confrontation Clause
argument, or that the issue should be assessed as a matter of
plain error in light of the way it has been raised. Had a
confrontation argument been raised before the State concluded
its case, inquiry could have been made as to which analyst or
analysts defendant wanted produced. Even at this stage in the
proceedings, we are uncertain whether defendant argues that the
State must call all fourteen analysts who played some role, no
matter how inconsequential, in the procedures and protocols at
the lab, or one analyst, or some number in between. Defendant
has never been put to the task of making a confrontation
demand.10 As such we must consider defendant’s confrontation
argument taken to the extreme: that all fourteen analysts must
be produced in order for the State to introduce Dr. Barbieri’s
testimony and report.
10
Defendant’s argument that, until the trial, she did not know
that Dr. Barbieri did not personally perform the tests rings
hollow. First, she should have known from the documents turned
over in discovery. The hundreds of pages of discovery that
constituted the lab documents do not contain Dr. Barbieri’s name
on the pages reporting machine readings. Second, even after
discovering this fact during cross-examination of Dr. Barbieri,
defendant still never made any demand for production of any or
all analysts.
51
With that perspective, we turn to Dr. Barbieri’s testimony,
which was offered without any notice that, for confrontation
purposes, he needed to justify in detail the independence of his
review of the testing that was done or the exact manner in which
he reached the conclusions in his report.
B.
Dr. Barbieri’s testimony explained that the analysts and
technicians employed by NMS perform differing roles in the
handling and testing of blood samples. Indeed, much of modern
forensic testing involves multiple analysts, as was the case in
the present matter. He described the process in detail,
including how a specimen is inspected and marked when received,
how a work order is assigned and follows the work through every
step in the process, and how chain of custody is maintained and
recorded. His description of the testing process, he said,
applied generally and in defendant’s case.
The samples are labeled.
The testing is ordered by a forensic
processor.
Aliquots are drawn.
An aliquot is a small sample of the
original sample for moving back into the
laboratory proper for the various types of
testing.
The original sample never leaves the
forensic processing area.
52
After the aliquots are drawn, that
original sample is stored in a secured
refrigerator. Labeled as to location and
things like that. So the aliquot goes back
to the lab.
All of this is done, and [a] forensic
folder is produced, which is labeled and
that carries through with all the testing;
and some of the original data actually goes
into that folder.
When all the testing is done, the
toxicologist is notified. Toxicologists
pick up the folder [and] review all the
data. Either the raw data that’s in the
file, or on the computer. Generate a
report. And that report is sent to the
client. With all the information that we
have received. And positive and negative
findings as well.
Dr. Barbieri testified that 957 pages of raw data,
including chain of custody and machine-generated documents, were
produced from the work that NMS performed on defendant’s blood
sample. That raw data was shared with defendant in discovery
and included, in relevant part, the machine-generated data from
the gas chromatography/mass spectrometry machines on the
calibration material, the quality control material, and the
aliquots of defendant’s blood sample. Dr. Barbieri explained
how gas chromatography/mass spectrometry, which he was trained
to perform and was knowledgeable about, was used to confirm the
presence of drugs in defendant’s blood:
[I]t’s a procedure that’s been around since,
1950’s. So it’s a well established
procedure.
53
There’s two parts to the
instrumentation. The Gas Chromatogram, and
then the Mass Spectrometer.
The GC part of it is basically a large
tube. It’s about 100-foot very fine tube in
an oven. And, there’s a gas that flows
through: Helium inert gas. And the sample
is injected into one end of the column into
the injectory port. And this oven heats.
It heats it up to over 250 degrees
centigrade. It’s very hot. And everything
volatilizes into a vapor phase. And as the
gas flows through this column[, t]he column
separates different compounds. And when it
comes out at the detector, the time from the
time it’s injected, to the time it comes
out, is called the “retention time.” The
time it’s retained in the column.
Every compound, based upon the way the
analysis is set up, will have a definitive
retention time. So we measure the retention
times as a marker for specific compounds.
As we do this, we also include in the
batch, calibration material, which would be
pure compounds of different concentrations.
And also quality control material. Which is
really blood samples that contain either
negative, no compound, or presence of some
compounds.
So we’re monitoring the system as it []
goes through. And we compare the responses
of [the] unknown blood sample, the retention
time, and the pe[a]k height that we get from
the detector against the calibration
materials, quality controls. So we can get
a quantitation of the compound; so we
identify, we quantify.
At the other end after it comes out, is
Mass Spectrometer. This is the really
important part of the instrument. Because
when the pe[a]ks come out through the GC
54
part, those new Mass Spectrometer, it’s like
a ray gun, basically, it’s shooting bullets
at the compound as it’s passing through. It
fractionates them. Breaks them apart. And
it breaks the molecules apart into pieces of
its original molecular weight.
Whether we do it in Willow Grove, we do
it here, or we do it in [] Alaska . . . the
fractionation of that compound is the same.
You have a book. You look up Cocaine.
You get the same pieces of that molecule.
So we basically have a fingerprint of
every molecule that’s moving through that.
And it’s quantified in the system. So we
have a fingerprint for cocaine. We have a
fingerprint for Cocaine metabolites.
And so the Mass Spectrometer breaks it
up, gives us a fingerprint, and gives us,
here is the different masses, and compares
it against a library. And it says; this is
a 98 percent hit, basically. And so, again,
positive identification and qualification.
And that’s how we ran the confirmations
on each of these type of compounds.
Dr. Barbieri then identified the drugs that were found in
defendant’s blood sample and the quantities detected. He
explained that documents are produced by the instruments when
the testing is performed and that the testing results are
printed directly from the machines. Those documents are
compiled for a reviewer who, in this case, was Dr. Barbieri.
Dr. Barbieri testified that he had available all 957 documents
generated during the testing process involved in defendant’s
case when he performed his review and analysis of the data. He
55
reviewed the raw data before preparing his signed and certified
report as the forensic toxicologist on defendant’s testing.
Although in his testimony Dr. Barbieri discussed the nature and
quantities of drugs he found to be present in defendant’s blood,
the machine-generated documents were not admitted into evidence.
The State also entered Dr. Barbieri’s certified report into
evidence through his live testimony. It is undisputed that Dr.
Barbieri did not actually conduct the initial or confirmatory
screening via gas chromatography/mass spectrometry performed on
defendant’s blood. We also have no evidence in this record that
Dr. Barbieri directly observed the individual analysts, who were
under his supervision, as each performed the tasks involved in
the testing process.
VI.
We note at the outset the factual differences between this
case and Melendez-Diaz and Bullcoming.
First, unlike in Melendez-Diaz, where no witness was
offered to testify to the statements contained in the state
lab’s forensic document that was admitted into evidence, here we
are not asked to consider a self-admitting report.
Indeed, to the extent that, once before, we were presented
with an argument that laboratory certificates issued by the New
Jersey State Laboratory could be regarded under N.J.S.A.
2C:35-19 as self-admitting documents that obviated any
56
confrontation right concerns, we rejected the notion. See State
v. Simbara, 175 N.J. 37, 49 (2002). Instead, we interpreted
N.J.S.A. 2C:35-19 as creating a notice-and-demand procedure for
the assertion -- or waiver -- of a defendant’s right to confront
the certificate’s preparer. Id. at 48-49.
The NMS report at issue here is outside the purview of
N.J.S.A. 2C:35-19 because the report was the product of a
private laboratory. More importantly, the report was admitted
through the live testimony of Dr. Barbieri, the person who
prepared, signed, and certified the report, and Dr. Barbieri was
available for cross-examination on his report. That renders the
circumstances of the NMS report’s admission materially different
from those of the report admitted at trial in Melendez-Diaz.
Second, the forensic report and testimony admitted in this
case differs in several respects from what happened in
Bullcoming. In Bullcoming, supra, the SLD forensic report was
admitted through the testimony of a co-analyst who did not
observe the work of the SLD analyst who performed the testing
and who did not serve as a supervisor or reviewer responsible
for certifying the blood alcohol results obtained by the analyst
whose work was referenced in the report. 564 U.S. at __, 131 S.
Ct. at 2711-12, 180 L. Ed. 2d at 618. If all we had was a co-
analyst reciting the findings contained in a report that he had
not participated in preparing or evaluated independently, we
57
would be faced with a scenario indistinguishable from
Bullcoming. But that is not the case here.
In the present matter, Dr. Barbieri supervised the
technicians and analysts who handled defendant’s blood sample
and performed the tests on small amounts of that sample using
the laboratory’s gas chromatography/mass spectrometry machines.
But we do not have testimony from someone simply bearing the
title of supervisor. Here we are presented with testimony by a
supervisor who was qualified as an expert in the relevant
subjects, and who analyzed the machine-generated data and
produced the certified report in issue.
Dr. Barbieri reviewed the procedures followed in the
testing and personally reviewed the machine-generated documents,
including the readings from calibration material and quality
control material, when reviewing the readings taken on the
aliquots of defendant’s blood.11 He signed the report and
certified its accuracy. The supervisory role that Dr. Barbieri
played in the testing process also required him to be
responsible for the testing procedures utilized by the NMS lab
generally and in this case, to be knowledgeable about the
testing, and to be able to evaluate the results generated by the
11
Dr. Barbieri also reviewed the chain of custody records as
part of his review and certified that the analysis was performed
under chain of custody. All of the necessary documents were
turned over in discovery and are not at issue in this appeal.
58
tests run by persons under his supervision and responsibility.
He testified that he had to satisfy himself that the lab’s
procedures and protocols were followed during the testing before
issuing his report.
Dr. Barbieri’s participation in preparing the report and
developing the substantive conclusions contained therein was
real and direct. He evaluated the results of the testing, found
them to be reliable, and produced the report detailing those
results. Moreover, he signed and certified that report. As the
reviewer of the testing process and the author of the report, it
was proper for him to testify to its contents and to answer
questions about the testing it reported. The fact that Dr.
Barbieri was testifying in respect of his own report
distinguishes him from the co-analyst in Bullcoming, who merely
presented a blood alcohol report prepared by another SLD co-
employee.
With regard to Dr. Barbieri’s in-court testimony, we note
that he explained how he independently reviewed the machine-
generated data and came to his conclusion about the findings and
opinion stated in the report that he authored, signed, and
certified. Dr. Barbieri testified that he reviewed the compiled
calibration and quality control documents and machine-generated
test results on defendant’s blood sample and concluded that they
demonstrated that
59
[a]ll the tests were done appropriately,
according to our standard operating
procedures, including our quality controls,
calibration, blanks, and all the testing was
done. And I believe the results produced
were accurate and true representations of
what was there in the blood of Julie
Michaels.
We conclude that there is no confrontation violation caused
by Dr. Barbieri’s use of nontestimonial calibration and quality
control data in preparing his report, or by his discussion of
that data in his testimony. Cf. Sweet, supra, 195 N.J. at 370-
71; Chun, supra, 194 N.J. at 142-44. Other courts similarly
have determined that the introduction at trial of calibration
records does not violate the Confrontation Clause. See, e.g.,
Pealer, supra, 985 N.E.2d at 907-08; Dyarman, supra, 73 A.3d at
574; Jones, supra, 982 N.E.2d at 428.
To the extent that the machine-generated results of the
tests conducted on defendant’s blood are of a more directly
accusatory nature, we address that data separately. As noted,
the machine-generated documents identifying the drugs found in
defendant’s blood, and quantifying each drug, were not
introduced into evidence, but their content was used by Dr.
Barbieri in preparing his report that stated the drugs found to
be present in defendant’s blood and the quantities detected.
Certainly, Dr. Barbieri’s report is testimonial, both in
his conclusion and in his use of test results indicating that
60
defendant had specific amounts of certain drugs in the blood
sample taken shortly after her motor vehicle accident. One can
hardly dispute that those conclusions are testimonial in nature,
and Bullcoming, supra, supports such a determination. See 564
U.S. at __, 131 S. Ct. at 2717, 180 L. Ed. 2d at 623-24. Dr.
Barbieri’s report bears all the indicia of a direct accusation
against defendant. As the author of that report, he is bearing
witness against the accused, namely defendant, when the report
is prepared for the State at its request. Because defendant had
the opportunity to confront and cross-examine Dr. Barbieri in
court about the results of the testing that he reviewed and
certified, defendant was not denied her right to confrontation.
Reviewed in toto, the machine-generated data provided the
basis for Dr. Barbieri to review the test results independently
and certify that the results were accurate and not flawed in
some way. Clearly, defendant could not cross-examine the
machines themselves. See Jenkins v. State, supra, 102 So. 3d at
1069 (approving supervisor’s expert testimony after review of
gas chromatography results obtained by nontestifying analyst);
see also United States v. Moon, 512 F.3d 359, 362 (7th Cir.)
(“[H]ow could one cross-examine a gas chromatograph?”), cert.
denied, 555 U.S. 812, 129 S. Ct. 40, 172 L. Ed. 2d 19 (2008).
And we have rejected the argument that defendant’s confrontation
rights could only be satisfied by testimony from all analysts
61
involved in the testing. Defendant’s opportunity to cross-
examine Dr. Barbieri about the testing and its results provided
meaningful confrontation. His testimony is in no way equivalent
to the surrogate testimony provided by the co-analyst from the
SLD lab in Bullcoming.
To be complete, we highlight our point of difference with
the dissent. Contrary to the dissent’s characterization of this
record, Dr. Barbieri was not repeating the findings and
conclusions of the analysts who manned the gas
chromatography/mass spectrometry devices. Rather, the findings
and conclusions contained in the report and to which he
testified were his own. It was his job to review and certify
the results of the tests performed on defendant’s blood sample.
Dr. Barbieri testified that he relied on raw data produced
by the machine tests regarding the levels of alprazolam,
cocaine, and cocaine metabolites in defendant’s system, and drew
his own conclusions from that data. He reviewed the calibration
and quality control tests to ensure that the machine was
producing accurate results in order to be satisfied that the
machines were generating true readings when defendant’s blood
sample was tested. He explained the confirmatory test that is
performed by the gas chromatography and mass spectrometry
machine and how its results are issued by the machine itself and
are not capable of being misreported or altered by a human
62
being. Dr. Barbieri’s explanation could have been more fulsome.
See e.g., Ortiz-Zape, supra, 743 S.E.2d at 158-59 (setting forth
detailed testimony of co-analyst on workings of gas
chromatography/mass spectrometry machine, whose results witness
independently reviewed and testified to without violating
defendant’s confrontation rights). However, as he explained,
the machine process is highly standardized. In the instant
case, the State’s presentation of this supervisor/reviewer’s
signed and certified report, based on his independent review of
machine-generated data, through his live testimony, did not
violate defendant’s confrontation rights.
Our difference with the dissent thus comes down to this:
we believe that a truly independent reviewer or supervisor of
testing results can testify to those results and to his or her
conclusions about those results, without violating a defendant’s
confrontation rights, if the testifying witness is knowledgeable
about the testing process, has independently verified the
correctness of the machine-tested processes and results, and has
formed an independent conclusion about the results. The dissent
claims that such testimony thwarts a defendant’s confrontation
rights. In the dissent’s view, only testimony by the original
analyst who worked on a test procedure, of any kind, can satisfy
a defendant’s confrontation rights. The majority’s view, and
holding, recognizes that testimonial facts can “belong” to more
63
than one person if the verification and truly independent review
described above are performed and set forth on the record by the
testifying witness.
In our judgment, Dr. Barbieri satisfied that standard and
was not parroting the testimonial hearsay of another analyst.
Rather, he testified to the findings and conclusions that he
reached based on test processes that he independently reviewed
and verified. Permitting such testimony does not value
expediency over constitutional rights, as the dissent claims.
Instead, this approach recognizes the reality that more than one
expert can responsibly verify a process, find a fact to be
reliable, and draw a conclusion. Respectfully, we do not accept
the dissent’s inflexible approach to scientific testing that
involves machine-generated data.
In concluding, as we do on this record, that defendant’s
confrontation rights were not violated, we note that several
other jurisdictions similarly have found that a supervisor or
reviewing analyst who reviews and certifies the work of an
analyst or analysts may testify in respect of forensic evidence
without running afoul of a defendant’s confrontation rights.
Specifically, a number of states have held that there is no
Confrontation Clause violation where a supervisor, who has
conducted his or her own independent review of the data
generated by other analysts, testifies to the conclusions he or
64
she has drawn from that independent analysis. See, e.g.,
Marshall v. People, supra, 309 P.3d at 947-48 (finding no
confrontation violation where testifying expert was lab
supervisor who reviewed urinalysis test results and prepared,
signed, and certified report); Jenkins v. State, supra, 102 So.
3d at 1069 (finding no confrontation violation where testifying
expert was lab supervisor who reviewed and co-signed report
identifying tested substance as cocaine and was knowledgeable
about testing procedures); Commonwealth v. Yohe, 79 A.3d 520,
540-41 (Pa. 2013) (finding confrontation rights satisfied by
ability to cross-examine supervisor who analyzed raw data from
blood alcohol tests, drew conclusions about intoxication, and
prepared and signed report), cert. denied, 82 U.S.L.W. 3685
(U.S. May 27, 2014); see also Ortiz-Zape, supra, 743 S.E.2d at
164-65 (finding no confrontation violation where testifying
expert was technical reviewer who testified to independent
conclusions based on review of cocaine substance analysis report
as well as all raw data and calibration and maintenance
documentation from testing).
We recognize that the holdings of various courts around the
country have not been uniform in analyzing Confrontation Clause
questions like the one presented here. Some courts, following
Justice Thomas, have adopted an approach that focuses on the
formality and solemnity of the report at issue. See, e.g.,
65
People v. Lopez, 286 P.3d 469, 581-84 (Cal. 2012) (finding no
confrontation violation where analyst testified based on
colleague’s blood alcohol report and testing because report was
unsigned and consisted entirely of chain of custody log and
machine-generated test data), cert. denied, __ U.S. __, 133 S.
Ct. 1501, 185 L. Ed. 2d 556 (2013); Derr v. State, 73 A.3d 254,
272-73 (Md. 2013) (finding serological and DNA testing reports
introduced through lab supervisor’s testimony insufficiently
formal to be testimonial because unsigned and no statements
attesting to accuracy), cert. denied, 82 U.S.L.W. 3707 (U.S.
June 9, 2014).
Another subset of courts, citing the confusion generated by
the fractured Williams opinions, have not attempted to formulate
a general approach for determining when the introduction of
forensic evidence by someone other than the analyst who
performed the tests will violate the Confrontation Clause. See,
e.g., State v. Bolden, 108 So. 3d 1159, 1161 (La. 2012);
Deadwiller, supra, 834 N.W.2d at 373. Rather, these courts have
resolved the cases before them by drawing analogies to the
specific facts of Williams and holding that, because the facts
are similar, the same result should pertain. Bolden, supra, 108
So. 3d at 1162; Deadwiller, supra, 834 N.W.2d at 373-75.
We further acknowledge that a few state high courts have
found that a defendant’s confrontation rights are violated when
66
the analyst who physically performed the tests at issue does not
testify, even when the testifying expert is a supervisor who
reviewed the data generated by the analyst and prepared the
report based on that data. See Martin v. State, 60 A.3d 1100,
1108-09 (Del. 2013) (finding Confrontation Clause violation
where lab manager who reviewed data and wrote report testified
about results of blood alcohol tests because manager did not
perform or observe tests and underlying test documents were
testimonial and admitted for truth under Bullcoming); Jenkins v.
United States, supra, 75 A.3d at 189-92 (finding violation where
testifying expert was lab supervisor who prepared report stating
DNA profile match but did not perform underlying tests; test
documents were testimonial because prepared for and used in
criminal prosecution). That approach has the advantage of
avoiding the possibility that the United States Supreme Court
may one day agree on the most exacting interpretation of
confrontation rights vis-à-vis multiple actors involved in
handling and testing evidence subject to all forms of forensic
testing. However, as noted earlier, that outcome is uncertain.
And taking the most rigid approach to confrontation rights in
the context of forensic reports carries practical drawbacks that
range from moderate to severe. It leaves no meaningful solution
where the analyst or analysts no longer work at the lab, are
unavailable, or are deceased. There is a real likelihood that
67
such dilemmas may arise in cold cases. Further, it cannot be
assumed that retesting a sample is invariably a possibility.
Moreover, demanding the in-court testimony of every analyst is
unnecessary for providing the defendant with meaningful cross-
examination on every testing process utilized in forensic
examinations.
We believe that the Supreme Court’s decisions and various
opinions in Melendez-Diaz and Bullcoming have left the states
room to apply the confrontation principles expressed in those
cases in meaningful ways, depending on the nature of the testing
that is involved and the independence of the analysis and review
of the person who testifies on the basis of verifiable test
results.
Here we are satisfied that the machine-calibrated, quality-
controlled gas chromatography/mass spectrometry tests performed
on defendant’s blood sample provided a sound basis for Dr.
Barbieri, as an expert in the fields of forensic toxicology and
pharmacology and a person knowledgeable about the testing
process employed, to opine on the drugs found in defendant’s
blood and their likely impact on her at the time the blood was
drawn. When a confrontation challenge is raised, the record
must show in detail the basis upon which the testifying witness
soundly has reached his or her conclusion. Here, defendant’s
opportunity to cross-examine Dr. Barbieri satisfied defendant’s
68
right to confrontation on the forensic evidence presented
against her.
VII.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-
VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned)
join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a
separate, dissenting opinion.
69
SUPREME COURT OF NEW JERSEY
A-69 September Term 2012
072106
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS, a/k/a LYNN
MICHAELS, JULIE LYNN, JOLINE
BROOKS, JODIE L. CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
In criminal cases, the State routinely retains scientists
and analysts to perform tests on a suspect’s blood to detect the
presence of drugs or alcohol. Today, the majority pronounces
that the accused has no constitutional right to confront the
scientist or analyst who actually performs the test. The
majority upholds a criminal conviction based on the expert
testimony of a laboratory “supervisor,” who did not perform,
participate in, or observe the analysis of defendant’s blood
test. Indeed, this “supervisor” was used as a conduit to pass
through to the jury the testimonial statements of the real test
analysts who were never subject to cross-examination.
The Sixth Amendment’s Confrontation Clause generally bars
the admission of an absent witness’s out-of-court testimonial
1
hearsay as a substitute for live in-court testimony when the
accused has not had the opportunity to cross-examine the absent
witness. Crawford v. Washington, 541 U.S. 36, 50-62, 124 S. Ct.
1354, 1363-71, 158 L. Ed. 2d 177, 192-99 (2004). The majority’s
opinion cannot be squared with that principle. More ominously,
the opinion is in direct conflict with Bullcoming v. New Mexico,
564 U.S. ___, ___, 131 S. Ct. 2705, 2713, 180 L. Ed. 2d 610, 619
(2011), a case in which the United States Supreme Court held
that the State violated the Sixth Amendment’s Confrontation
Clause by calling a non-testing analyst as a substitute witness
for the analyst who performed a blood analysis. However
confused the United States Supreme Court’s Confrontation Clause
jurisprudence may be in the wake of Williams v. Illinois, 567
U.S. ___, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) -- with its
plurality, concurring, and dissenting opinions -- it is doubtful
that any member of the Williams Court would adopt the approach
the majority is taking here.
The purpose of the Confrontation Clause is not to foster
expedient trial procedures, but to ensure that testimonial
evidence is tested in the crucible of cross-examination --
however time consuming or difficult that process may be. See
Crawford, supra, 541 U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed.
2d at 199. Thus, chemical analysts who provide out-of-court
“testimony” through laboratory reports must be made available
2
for cross-examination. Bullcoming, supra, 564 U.S. at ___, 131
S. Ct. at 2716, 180 L. Ed. 2d at 622.
Curtailing confrontation rights is not the answer to the
uncertainty in federal jurisprudence. Although the majority
upholds the conviction in this case, it is chancing the reversal
of countless future convictions by rendering an opinion that may
fall below the minimum guarantees of the Sixth Amendment. The
majority may be charting a course that will collide with the
next United States Supreme Court case construing the
Confrontation Clause. Law enforcement, if properly directed,
can successfully prosecute cases while conforming to the
dictates of the Confrontation Clause. It has done so in the
past.
Whatever perceived benefits are achieved by the majority
opinion, they come at a high price -- the abandonment of basic
principles that underlie our Confrontation Clause jurisprudence.
I therefore respectfully dissent.
I.
A.
The majority opinion cannot be reconciled with the United
States Supreme Court’s recent Confrontation Clause
jurisprudence. One overarching principle remains clear from
that jurisprudence: the admission of testimonial statements
3
from witnesses absent from trial violates the Sixth Amendment’s
Confrontation Clause unless the witnesses are “unavailable,” and
“the defendant has had a prior opportunity to cross-examine”
them. Crawford, supra, 541 U.S. at 59, 124 S. Ct. at 1369, 158
L. Ed. 2d at 197. A statement is “testimonial” if the primary
purpose of making the statement is to establish a fact as
evidence in a later criminal prosecution. Bullcoming, supra,
564 U.S. at ___ n.6, 131 S. Ct. at 2714 n.6, 180 L. Ed. 2d at
620 n.6 (quoting Davis v. Washington, 547 U.S. 813, 822, 126 S.
Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006)).
Applying that test in Melendez-Diaz v. Massachusetts, 557
U.S. 305, 310-11, 129 S. Ct. 2527, 2532, 174 L. Ed. 2d 314, 321
(2009), the Court held that a laboratory report identifying a
substance as cocaine was testimonial evidence and therefore its
admission at trial, without the testimony of the analyst who
prepared it, violated the Sixth Amendment’s Confrontation
Clause. The report in Melendez-Diaz was created for the
specific purpose of serving “as evidence in a criminal
proceeding.” Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at
2709, 180 L. Ed. 2d at 615.
Bullcoming presented a variation of the theme in Melendez-
Diaz. In Bullcoming, the Court held that the in-court testimony
of a scientist who did not conduct or participate in any
laboratory tests relevant to the case, but who read into
4
evidence the actual analyst’s test results contained in a
certified report, violated the Confrontation Clause. Id. at
___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. The facts in
Bullcoming are remarkably similar to the facts in the present
case.
In Bullcoming, the defendant was arrested for driving while
intoxicated (DWI). Id. at ___, 131 S. Ct. at 2710, 180 L. Ed.
2d at 616. A blood sample was taken from him at a hospital and
submitted for testing at a state laboratory. Ibid. A forensic
analyst operated a gas chromatograph machine to test
Bullcoming’s blood sample and determined his blood alcohol
content (BAC). Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at
617. The Supreme Court made the following observations about
the operation of the gas chromatograph machine: “‘[T]he analyst
must be aware of, and adhere to, good analytical practices and
understand what is being done and why.’” Id. at ___ n.1, 131 S.
Ct. at 2711 n.1, 180 L. Ed. 2d at 617 n.1 (quoting David T.
Stafford, Chromatography, in Principles of Forensic Toxicology
92, 114 (B. Levine ed., 2d ed. 2006)). Although the gas
chromatograph machine produces a printed graph, securing “an
accurate BAC measurement . . . is not so simple or certain.”
Ibid. Indeed, the “risk of human error [is not] so remote as to
be negligible.” Ibid.
5
The forensic analyst determined that Bullcoming’s BAC was
0.21, a level sufficient to support a conviction for aggravated
DWI. Id. at ___, 131 S. Ct. at 2711, 180 L. Ed. 2d at 617–18.
The analyst was not called as a witness at Bullcoming’s trial.
Id. at ___, 131 S. Ct. at 2711–12, 180 L. Ed. 2d at 618.
Instead, the State called Gerasimos Razatos, a scientist also
qualified as an expert in the gas chromatograph machine but who
did not participate in testing Bullcoming’s blood. Id. at ___,
131 S. Ct. at 2712, 180 L. Ed. 2d at 618. Razatos gave “live,
in-court testimony” about laboratory procedures, the machine’s
operation, and the results of the BAC test. Id. at ___, 131 S.
Ct. at 2713, 180 L. Ed. 2d at 619. In addition, the analyst’s
report was admitted as a business record. Id. at ___, 131 S.
Ct. at 2712, 180 L. Ed. 2d at 618.
The United States Supreme Court held that Razatos’s
surrogate testimony violated the Confrontation Clause because
Bullcoming did not have the opportunity to cross-examine the
forensic analyst who tested his blood. Id. at ___, 131 S. Ct.
at 2713, 180 L. Ed. 2d at 619. According to the Court, the
surrogate expert’s testimony “could not convey what [the
forensic analyst] knew or observed about the events his
[laboratory report] concerned, i.e., the particular test and
testing process he employed. Nor could such surrogate testimony
expose any lapses or lies on the certifying analyst’s part.”
6
Id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Indeed,
at trial, Razatos admitted that “‘you don’t know unless you
actually observe the analysis that someone else conducts,
whether they followed th[e] protocol in every instance.’” Id.
at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L. Ed. 2d at 622 n.8
(alteration in original). Razatos, moreover, was unable to
testify why the forensic analyst was on unpaid leave. Id. at
___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. Thus, the
defense could not ask “questions designed to reveal whether
incompetence, evasiveness, or dishonesty accounted for [the
forensic anaylst’s] removal from his work station.” Ibid.
The Supreme Court reached conclusions relevant to the facts
before us. First, “the comparative reliability of an analyst’s
testimonial report drawn from machine-produced data does not
overcome the Sixth Amendment bar.” Id. at ___, 131 S. Ct. at
2715, 180 L. Ed. 2d at 621. Second, the analysts who write
reports that the prosecution introduces must be made available
for confrontation even if they possess “‘the scientific acumen
of Mme. Curie and the veracity of Mother Teresa.’” Ibid.
(quoting Melendez-Diaz, supra, 557 U.S. at 319 n.6, 129 S. Ct.
at 2537 n.6, 174 L. Ed. 2d at 327 n.6).
In her concurring opinion, Justice Sotomayor noted that
Bullcoming would have been “a different case if, for example, a
supervisor who observed an analyst conducting a test testified
7
about the results or a report about such results.” Id. at ___,
131 S. Ct. at 2722, 180 L. Ed. 2d at 629. Razatos did not
observe the testing of the forensic analyst. Ibid.
B.
The facts before us are remarkably similar to those in
Bullcoming, and yet the majority reaches a diametrically
different result.
Here, defendant Julie Michaels was charged with vehicular
homicide, assault by auto, and related offenses stemming from a
head-on car collision. The State claimed that defendant was
under the influence of drugs at the time of the accident. At
the direction of a police officer, a sample of defendant’s blood
was taken at the hospital where she was treated. The Sussex
County Prosecutor’s Office forwarded the blood sample to NMS
Labs in furtherance of its criminal investigation. NMS Labs
submitted back a report entitled “STATE V. JULIE MICHAELS”
authored by forensic toxicologist Edward J. Barbieri, Ph.D.
The report revealed that defendant had concentrations of
cocaine and Xanax in her blood. According to Dr. Barbieri,
defendant’s “alertness, judgment, perception, coordination,
response time and sense of care and caution were impaired
rendering this individual unfit to operate a motor vehicle
safely.” The report failed to reveal that Dr. Barbieri did not
conduct, participate in, or observe any of the blood tests that
8
detected the drugs in defendant’s system. Dr. Barbieri’s
report, which was admitted into evidence, does not name the
analysts who conducted the test, although the discovery, which
is referenced by the majority and is not part of the record,
suggests that only two analysts were involved in the actual
testing. Other laboratory employees referred to by the majority
appear to be merely in the chain of custody.
Like in Bullcoming, the analysts here used a gas
chromatograph machine to test defendant’s blood sample. Like
Razatos in Bullcoming, Dr. Barbieri conceded that “there’s
always a human element” involved when a gas chromatograph
machine is operated. Like Razatos in Bullcoming, Dr. Barbieri
averred to the procedures that NMS technicians follow when
testing samples. Like Razatos in Bullcoming, Dr. Barbieri took
the test results of the analysts and merely parroted them before
the jury. Like Razatos in Bullcoming, Dr. Barbieri could not
testify about what the forensic analysts “knew or observed” when
they performed the “particular test and testing process,” nor
was he in a position to “expose any lapses” on the part of the
analysts. See id. at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at
622. Moreover, Dr. Barbieri does not fit within the example
given by Justice Sotomayor in her concurrence of a supervisor
who observed the testing performed by an analyst.
9
In sum, Dr. Barbieri, in his surrogate testimony, passed
through the testimonial statements of the analysts who actually
performed the tests on defendant’s blood, denying defendant her
right of confrontation. This is exactly what Bullcoming says
the Sixth Amendment prohibits. There are no meaningful
differences between the case before us and Bullcoming, except
the outcomes.
II.
The majority contends that, even though Dr. Barbieri
conducted none of the blood tests involved in this case, his
testimony is constitutionally admissible expert testimony under
N.J.R.E. 703. The majority concedes that the analysts’ “facts”
-- the tests they performed on defendant’s blood sample and the
results they recorded -- are testimonial statements. That Dr.
Barbieri relied on facts or data from the analysts in forming
his own opinion does not diminish the impermissible use of the
analysts’ testimonial statements, which were presented to the
jury. Those absent analysts’ tests, moreover, were offered for
their truth -- offered to prove that the substances in
defendant’s blood were cocaine and Xanax. Those tests were not
foundational, not calibrations of a machine, but were the very
tests that went to the heart of whether defendant was guilty of
the crimes charged. The majority allows the absent analysts’
10
testimonial statements to be passed through Dr. Barbieri to the
jury without cross-examination of the analysts.
The position taken by the majority has not only been
rejected in Bullcoming but also does not find support in either
the plurality opinion or dissenting opinion in Williams v.
Illinois. In Williams, supra, the Court divided over the
question of whether a DNA profile, prepared by a specialist who
did not testify, was offered for the truth of its contents. 567
U.S. at ___, ___, 132 S. Ct. at 2228, 2236, 183 L. Ed. 2d at 99,
108 (plurality opinion). Here, the majority asserts that it is
not relying on Williams. The majority, moreover, does not
contest that the analysts’ tests results were offered for their
truth or that the results were testimonial in nature. No
justice in Williams suggested that passing testimonial
statements offered for their truth through a surrogate witness
would be acceptable under the Confrontation Clause.
It may be true that Dr. Barbieri gave an independent
opinion. But that opinion was formed by the testimonial
statements of the analysts who performed the tests. The State
cannot deprive the accused of the right to confront the analysts
by the use of a surrogate witness. The core purpose of the
Confrontation Clause is undermined when the accused cannot
confront those whose statements bear testimony against her.
11
The majority opinion will have far-reaching effects for
future cases involving laboratory tests that are critical to
criminal prosecutions. From this point forward, a laboratory --
regardless of how many scientists are employed there -- can
designate one forensic expert to testify at all trials, relying
on the tests of fellow scientists in which he has had no
involvement. The incentive will be to select as the expert
witness the best pitch person, the one who appears to have
walked out of Central Casting. This approach will destroy the
ability of the accused to have any meaningful opportunity to
cross-examine the persons who are actually bearing testimony
against her -- the actual chemists or analysts conducting the
tests.
III.
The majority acknowledges that courts throughout the
country are reading Williams and reaching divergent results. We
know that Williams is not the last word. If the United States
Supreme Court does not follow the path taken by the majority
today, and if prosecutors take the approach that providing fewer
confrontation opportunities is the better strategy, then
countless convictions may be jeopardized.
Prudence would dictate that when federal jurisprudence is
in a state of flux, a conservative approach is best. See State
12
v. O’Neill, 193 N.J. 148, 175 (2007) (affording protections to
accused under state law when “[t]he shifting sands of federal
jurisprudence provide no certainty concerning the standard that
might apply to the next set of slightly different facts”).
Cautious prosecutors can still place on the stand the chemist or
analyst who actually conducted the test and will not have to
worry about a United States Supreme Court decision upending a
conviction.
IV.
In the wake of the majority’s opinion, defendants will no
longer have the opportunity to cross-examine the analysts who
actually perform scientific tests -- no longer have the
opportunity to expose errors, lapses, and shortcomings in the
testing process. This is a backward step that, I believe,
violates the Sixth Amendment.
For the reasons expressed, I respectfully dissent.
13
SUPREME COURT OF NEW JERSEY
NO. A-69 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULIE L. MICHAELS a/k/a LYNN
MICHAELS, JULIE LYNN, JOLINE
BROOKS, JODIE L. CALLOWAY,
JODIE CALLAWAY,
Defendant-Appellant.
DECIDED August 6, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
CHECKLIST AFFIRM REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6 1
1