Constitutional Limits to Expert Reliance on Testimonial Statements – Establishing Clear Boundaries for the Application of FRE 703 under the Confrontation Clause

Catherine N. Peterson[1]

In a decision hinging on the admissibility of hearsay testimony presented at trial, the Tenth Circuit Court of Appeals ruled in United States v. Pablo[2] that there was no plain error under the Confrontation Clause in admitting testimony by a DNA expert whose testimony relied on the reports by two other non-testifying analysts.[3]

The case originated in New Mexico and involved the introduction at trial of DNA evidence linking the defendant to DNA found on a rape victim’s body and on physical evidence found at the crime scene.[4]  DNA and serology reports were prepared by two analysts, neither of which testified at trial.[5]  Instead, the government called on a third analyst who testified as to the contents of these reports, even though he had not been involved in either the analysis or in their preparation.[6]  On appeal, the defendant objected to the admission of the expert’s testimony, claiming that it violated his right to confrontation under the Sixth Amendment.[7]  In support of his argument, the defendant cited the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts,[8] which held that under the Confrontation Clause, forensic analysis reports are testimonial in nature and “the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits.”[9]  On that basis, the defendant claimed that the expert’s testimony should not have been admissible.[10]

Upon review, the Pablo court found no plain error and ruled that the expert’s testimony was admissible.[11]  In its opinion, the court distinguished the Supreme Court’s holding in Melendez-Diaz, where an affidavit of a non-testifying forensic analyst was admitted at trial as evidence against the defendant.[12] The court reasoned that, in the present case, the testifying expert provided her own conclusions and merely relied on the contents of the reports by other non-testifying analysts in formulating “her own expert opinion.”[13] Such reliance is permissible under Federal Rule of Evidence 703.[14] 

Rule 703 of the Federal Rules of Evidence authorizes a testifying expert to rely on otherwise inadmissible facts or data, including out-of-court testimonial statements, provided that the information is “a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”[15]  Additionally, Rule 703 permits disclosure of the otherwise inadmissible information to the jury, if the court deems it helpful in evaluating the expert’s opinion and not for the “substantive truth” of the matter being asserted.[16]

This case highlights an interesting interplay between Rule 703 and a defendant’s right to confrontation. As the First Circuit Court noted in United States v. McGhee,[17] this overlap continues to be a contested subject among the lower courts. Courts are “deeply and intractably divided” over their interpretation and application of “testimonial statements” under Rule 703 and the extent to which an expert may rely on and testify regarding the conclusions of a non-testifying expert.[18] In reaching a decision, courts have applied varying standards of review (plain error or whether the error was harmless beyond a reasonable doubt), and either distinguished the factual circumstances from Melendez-Diaz or considered whether the expert had applied independent analysis in his testimony.[19]

The absence of bright line rules regarding the admissibility of expert testimony on non-testifying expert analysis indicates a need for further guidance on the issue. In its opinion, the Tenth Circuit acknowledged that “[t]he degree to which an expert may merely rely upon, and reference during her in-court expert testimony, the out-of-court testimonial conclusions of another person not called as a witness is a nuanced legal issue without clearly established bright line parameters, even today with the benefit of Melendez-Diaz.”[20]

The Supreme Court recently granted certiorari in State v. Bullcoming,[21] where it considered the admissibility of testimonial statements by a non-testifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis.[22]  In Bullcoming, the defendant was charged with aggravated driving while intoxicated (DWI).[23] The state admitted at trial a Report of Blood Alcohol Analysis, detailing the defendant’s laboratory blood test results.[24]  The analyst who prepared the report did not testify at trial, but another analyst who had no involvement in the analysis testified as to its content.[25]  The defendant objected to the admission of the report, arguing that it was testimonial evidence and that its admission infringed upon his constitutional right under the Confrontation Clause.[26]  The New Mexico Supreme Court found that, although the report was testimonial in nature, its admission did not violate the Confrontation Clause because “the analyst who prepared the report . . .  simply transcribed the results generated by a gas chromatograph machine, and, therefore, the live, in-court testimony of another qualified analyst was sufficient to satisfy the Defendant’s right to confrontation.”[27] The defendant disagreed with the court’s reasoning that, because the results were machine-generated, a “surrogate analyst” fulfilled the requirements of the Confrontation Clause. Rather, he contended that the analyst’s role involved more than mere transcription of results, as it also required using “scientific testing techniques” and interpreting the results generated by the machine.

While the case presents a specific question regarding the admissibility of surrogate expert testimony regarding a blood analysis report, the Supreme Court’s review more broadly involves a possible expansion and clarification of the law established in Melendez-Diaz.  The outcome in Bullcoming v. New Mexico will likely carry broad implications for the future application of Rule 703 under the Confrontation Clause, as the Supreme Court’s decision will impact whether an expert may testify regarding testimonial statements without the supporting testimony of the witness.

The Court heard oral arguments on March 2, 2011 and issued its opinion on June 23, 2011.[28] Justice Ginsburg delivered the opinion of the Court, in which Justice Scalia joined in full and Justices Kagan, Sotomayor, and Thomas joined in part. Justice Kennedy wrote a dissenting opinion, in which Chief Justice Roberts and Justices Alito and Breyer joined. In its decision, the Court held that the Confrontation Clause does not permit the introduction of a certified forensic analysis report through the testimony of an analyst who did not perform or personally observe the laboratory testing.[29] The Court reversed the New Mexico Supreme Court’s judgment and remanded the case for further proceedings.[30]

In reaching its decision, the Court found that the blood analyst’s certification reported “more than just machine-generated numbers” – his report conveyed representations regarding both the testing method and the protocol followed in performing the analysis.[31] These representations speak to the validity of the analysis, and therefore must be subject to cross-examination.[32] Additionally, the Court found that the testifying analyst was not an adequate surrogate witness simply because he was a qualified expert with regards to the machine and the procedures employed in performing the laboratory analysis.[33] Such testimony, the Court reasoned, could not convey the testing analyst’s knowledge or observations of the analysis he performed, and therefore failed to meet the constitutional requirements under the Confrontation Clause.[34]

In its opinion, the Court also refuted the State’s argument that introducing the laboratory analysis report is not subject to the Confrontation Clause because the report is non-testimonial.[35] In affirming its holding in Melendez-Diaz, the Court clarified that the analyst’s report was testimonial because it was specifically prepared to serve as evidence at trial.[36] Additionally, the Court highlighted the similarities between the forensic report in the Bullcoming case and the certificates at issue in Melendez-Diaz, and concluded that the formalities of the forensic report were sufficient to qualify as testimonial.[37]

The Bullcoming case raised issues that have previously divided the Court along non-traditional lines. With the recent changes in the Court’s membership since Melendez-Diaz was decided, this case had the potential to tilt the split and lead to a new direction in confrontation clause jurisprudence. However, Justices Sotomayor and Kagan voted in line with their predecessors. The Court reaffirmed its ruling in Melendez-Diaz, thus preserving the Court’s split on the application of the Confrontation Clause.


[1] J.D./M.S.W. Candidate 2012, University of Denver Sturm College of Law.

[2] 625 F. 3d 1285 (10th Cir. 2010).

[3] Id.

[4] Id. at 1290.  

[5] Id.

[6] Id.

[7] Id. at 1291.

[8] 129 S. Ct. 2527 (2009).

[9] Id. at 2542.

[10] Pablo, 625 F. 3d at 1291.

[11] Id. at 1293.

[12] Id. at 1294.

[13] Id. 

[14] Id. at 1304. 

[15] See Fed. R. Evid. 703.

[16] Id.

[17] 627 F.3d 454 (1st Cir. 2010).

[18] Petition for Writ of Certiorari, Bullcoming v. New Mexico, 131 S. Ct. 62 (2010) (No. 09-10876), 2010 WL 3761875 at *7.

[19] See, e.g., McGhee, 627 F.3d 454 (distinguishing Melendez-Diaz and finding any assumed error in admitting expert testimony regarding another chemist’s analysis to be harmless beyond a reasonable doubt due to independent evidence); United States v. Turner, 591 F.3d 928 (7th Cir. 2010) (distinguishing Melendez-Diaz and finding that making reference to a chemist’s conclusions did not violate the Confrontation Clause); United States v. Ayala, 601 F. 3d 256 (4th Cir. 2010) (admitting expert testimony on the basis that the experts were not a “mere conduits” because they presented independent judgment in their testimony); United States v. Richardson, 537 F. 3d 951 (8th Cir. 2008) (finding no plain error under the Confrontation Clause for the admission of a DNA expert’s testimony who conducted a peer-review, but did not perform or observe the analysis).

[20] Pablo, 625 F. 3d at 1294.

[21] 226 P.3d 1 (N.M. 2010), cert. granted, 79 U.S.L.W. 3194 (U.S. Sept. 28, 2010) (No. 09-10876).

[22] Petition for Writ of Certiorari, Bullcoming v. New Mexico, 131 S. Ct. 62 (2010) (No. 09-10876), 2010 WL 3761875.

[23] Bullcoming, 226 P.3d at 4.

[24] Id. at 5.

[25] Id.

[26] Id.

[27] Id. at 4.

[28] Bullcoming v. New Mexico, No. 09–10876, 2011 WL 2472799 (U.S. June 23, 2011).

[29] Id.

[30] Id. at *13.

[31] Id. at *8.

[32] Id. at *4.

[33] Id. at *9.

[34] Id.

[35] Id. at *10.

[36] Id.

[37] Id. at *11.