The NC Supreme Court decided several cases in June that dealt with the admissibility of testimony by substitute forensic analysts. The lead case in this series is State v. Ortiz-Zape, a case in which a forensic chemist testified for the state regarding the results that a non-testifying analyst produced using the gas chromatograph mass spectrometer (GCMS). The Court held that allowing the testimony of the substitute analyst did not violate the defendant’s Confrontation Clause rights where the expert’s testimony was an “independent opinion based on otherwise inadmissible facts or data of a type reasonably relied upon by experts in the particular field.” Ortiz-Zape, slip op. at 13 (quotations and citations omitted). The NC Supreme Court reasoned that the defendant’s right to cross examine the expert giving the opinion, not its underlying factual basis, is guaranteed by the Confrontation Clause.
Defenders, however, should continue to make objections to the testimony of substitute analysts at trial to preserve the issue, as the U.S. Supreme Court will be the final word on this issue.
It’s important to read the further analysis of this line of cases that is provided by Jessie Smith in her North Carolina Criminal Law blog post here. She also explains the requirements for laying a proper foundation for substitute analyst testimony and discusses impermissible “surrogate” testimony.
While the NC Supreme Court in Ortiz-Zape discusses machine-generated raw data as being “truly machine-generated,” it has been shown that the results can be manipulated. Take a look at the video on Justin McShane’s blog for one example of why it is important to be able to cross-examine the analyst who performed the testing.