Foundation for a Substitute Analyst's Opinion after Melendez-Diaz

As summarized in Jeff’s recent blog post, in State v. Brennan, the North Carolina Court of Appeals applied Locklear and Mobley and held that the defendant’s confrontation clause rights were violated by the testimony of a substitute analyst in a drug case. My own summaries of Locklear and Mobley are available here and here. Jeff got it right when he stated in his post that in light of the case law, the “quality of the lawyering and the ability of the witnesses to describe the review process may make a crucial difference” in a court’s decision about the admissibility of substitute analyst testimony. So what’s a prosecutor to do? Here is some guidance. After the witness is qualified as an expert, it is necessary to establish that the underlying reports are a basis of the expert’s opinion and that the expert’s opinion is an independent one, formed after his or her own analysis of the underlying data. If the expert merely reports the results of a non-testifying analyst, the evidence will be inadmissible. The following questions, formulated for use in a drug case, will help you to lay the appropriate foundation for this testimony. Are you familiar with the tests that are done to identify a substance as a controlled substance? What are those tests? What type of equipment is used to do them? What are the steps involved with doing those tests? What types of results do they yield? How are those results reported? How accurate are those test results [...]