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NC Supreme Court rules on scope of a defendant’s right to confront accusers

RALEIGH Under the U.S. Constitution, defendants have a right to confront their accusers. But what happens when the accuser isn’t a person, but a lab test?

Can a test speak for itself and can its results be cited as facts by expert witnesses? Or must the technicians who conduct the tests be called each time to explain the process and interpret the results?

These questions are at the core of a debate over a basic right made knotty by technology.

The state Supreme Court ruled this week in a split opinion that the test results can stand alone if cited by expert witnesses offering independent opinions.

But others contend a test should be subject to the same questioning that a person making an accusation would face, and the only way to do that is to require the analyst who conducted it to testify at trial.

That’s how Gordon Widenhouse, a Chapel Hill lawyer who teaches law classes on the Confrontation Clause at issue in the rulings, interprets the U.S. Supreme Court ruling that the North Carolina justices cited in their seven rulings this week.

Widenhouse disagreed with the majority’s opinions in the North Carolina cases.

“I think you get to confront what is actually bearing witness against you,” Widenhouse said, siding with Justice Robin E. Hudson and Chief Justice Sarah Parker who offered a minority opinion.

If it is a laboratory test, Widenhouse argued, then the defendant should be able to cross examine the person who put the cocaine or drug evidence on the scales or ran the machine that led to the conclusions that played a role in the criminal charges.

A cocaine case from Mecklenburg County was the lynchpin that tied together the seven N.C. State Supreme Court rulings issued Thursday.

In that case, Mario Eduardo Ortiz-Zape was pulled over at an Exxon gas station by Charlotte-Mecklenburg police on May 16, 2007, for what the officer described as a 30-day temporary tag that was “ratty and old” and “looked to be tampered with.”

As Ortiz-Zape looked through his glove compartment for his car registration, the officer said he shined his flashlight on what appeared to be a plastic bag containing cocaine in the driver’s door storage compartment. The officer confiscated the bag and its contents, which were later weighed at the police department and analyzed at the crime lab.

Ortiz-Zape was charged with possessing 4.5 grams of cocaine with intent to sell or deliver it.

The crime lab analyst who had done the test no longer was employed for the law enforcement agency when the case went to trial. Instead, prosecutors called a Charlotte-Mecklenburg Police Department crime lab worker as an expert witness who offered her independent opinion concerning the testing.

“[W]hen an expert gives an opinion, the expert is the witness whom the defendant has the right to confront,” Justice Mark Martin wrote in the N.C. Supreme Court majority opinion. “In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert’s opinion and to determine whether that opinion should be found credible.

“ …We emphasize that the expert must present an independent opinion obtained through his or her own analysis and not merely ‘surrogate testimony’ parroting otherwise inadmissible statements.”

In some legal circles, defense attorneys call that a “prosecutorial dodge.”

That was how U.S. Supreme Court Justice Elena Kagan described a similar situation in an Illinois rape case that led to a divided U.S. Supreme Court opinion in June 2012 that addressed the scope of the Confrontation Clause.

In the Illinois case, Sandy Williams was convicted of rape in a 2006 trial before a judge, but no jury. In that case, according to a report in The Atlantic by Andrew Cohen, prosecutors used a witness who was unfamiliar with the general details of the testing protocols of the lab that produced the incriminating DNA report instead of the analyst who did the key research.

Because that case resulted in four different opinions and a divided court, lawyers and prosecutors have been confused about the practical results.

Prosecutors in North Carolina, and Joe John, head of the state crime lab, have raised concerns over the past year about interpretations of the U.S. Supreme’s Court opinion that required lab analysts to spend more time in court. Trials have been delayed because of a backlog of testing in the state’s crime labs. In some cases, it can take nearly a year to get back testing in DWI cases, prosecutors have said.

John said on Thursday that he did not think the state Supreme Court rulings would change the need to send analysts to trials. The state attorney general’s office was reviewing the rulings to determine the larger impact.

Joseph B. Cheshire V, a criminal defense attorney in Raleigh, described the state Supreme Court rulings as evidence “that a certain faction … wishes to dismantle many of our constitutional protections.”

“When you try and dismantle rights given by our forefathers to protect individual freedoms, in an effort to speed the process of conviction, every citizen of this state should be outraged and afraid,” Cheshire said. “Constitutional protections were hard won but easily discarded as is freedom.”

Blythe: 919-836-4948
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