Last year the Supreme Court emphatically extended its new Confrontation Clause jurisprudence -- abjuring reliance on historically-rooted hearsay exceptions to require in criminal cases that "testimonial" hearsay be kept out unless subject to cross-examination -- to in-court evidence from drug-testing labs. Under the Melendez-Diaz case, the prosecution can no longer admit lab reports but must present live witness testimony as to chain of custody issues and test results. The dissent in Melendez-Diaz predicted that the necessity for live testimony would strain state resources and crime labs around the country.
Not so much, it now appears, at least in the Seventh Circuit. In United States v. Turner, 591 F.3d 928 (7th Cir. 2010), the state crime lab chemist, Hanson, who had run all the tests on a sample of suspected crack cocaine, taken all the test notes, and written the report confirming the nature of the substance was not called by the government at trial because she was on maternity leave. Instead, the government in this distribution case called her supervisor, Block. In testimony that would seem to have flouted the Sixth Amendment and Melendez-Diaz, Block was permitted to testify -- after neutrally describing his lab's equipment and calibration, and the testing protocol for cocaine -- that he had not done any independent testing on the material but had reviewed Hanson's report, Hanson's data charts, and Hanson's handwritten notes, and had reached the same conclusion as had Hanson: the stuff was indeed crack cocaine.
To be sure, Hanson's report, charts, and notes were not literally admitted into evidence, but surely they were virtually admitted through Block's parroting of their contents. Yet, remarkably, the Turner court held that there was no Sixth Amendment violation because those materials were not actually marked as exhibits and handed to the jury and because Block provided the jury with what was "unequivocally" his own opinion. Id at 933. And, by the way said the Turner court, Melendez-Diaz "did not do away with Federal Rule of Evidence 703." Id. at 934.
The court's last, throw-away comment is particularly noteworthy. FRE 703, of course, generally permits an expert to rely on hearsay in forming and delivering an opinion if the hearsay is of a type reasonably relied upon by experts in that field. That is to say, FRE 703 allowed the kind of testimony offered by Block until Melendez-Diaz said that it didn't, because the Confrontation Clause supersedes any conflicting rule of evidence. Arguably, the Turner decision is result-oriented, reached in order to save a conviction against a seeming constitutional violation. It will be interesting to watch the continued development in the lower courts of Melendez-Diaz as those courts struggle to apply the Supreme Court's bold restatement of the impact of the Sixth Amendment on the admission of hearsay evidence in criminal cases.