In that case, it was alleged that the defendant was involved in an accident, but was located by police about 1/2 mile away from the scene. The officers alleged that, due to his smelling of alcohol, his staggering and apparent injuries, that he had been the operator responsible for the crash.
After a jury trial that resulted in a conviction of both Operating Under the Influence of Alcohol and Leaving the Scene of an Accident, he appealed his conviction claiming that the admission of expert testimony concerning DNA testing violated his Right of Confrontation pursuant to the Sixth Amendment of the United States Constitution. Specifically, the defendant took exception to the Commonwealth calling a DNA expert to explain how he used the results of another analyst to conduct his own statistical analysis.
The Massachusetts Appeals Court considered the issue in light of a recent United States Supreme Court decision, Bullcoming v. New Mexico. In Bullcoming, the Supreme Court ruled that the Confrontation Clause prohibits the prosecution to introduce forensic laboratory reports containing a testimonial certification, or assertions of fact, through testimony of a scientist who did not execute the certification, or perform or even observe the test reported in the certification. This, the Supreme Court explained, was a violation of the defendant’s Right of Confrontation unless he was afforded the opportunity to cross-examine the analyst.
In the McGrail case, however, the Massachusetts Appeals Court distinguished between the two cases by noting that the expert in McGrail was an expert who was asked for his independent opining about underlying testimonial reports that were not themselves admitted into evidence.
Generally, an expert is permitted to give opinion testimony based on hearsay if the particular hearsay is independently admissible with a proper foundation, and if it is the type of evidence that experts can customarily rely on as a basis for forming an opinion.
Going one step further, expert testimony by a laboratory supervisor regarding the statistical probability that another’s DNA matches another DNA profile does not violate the defendant’s Right of Confrontation, even if the opinion is based on test data that is not admissible into evidence.
The Massachusetts Appeals Court noted, then, that the expert in McGrail did nothing more than express his own opinion expert testimony based on an independent analysis of the data presented to him, and this opinion was therefore independently admissible.
At the end of the day, the McGrail decision is unfortunate for defendants in Massachusetts Drunk Driving Cases or any other case where forensic evidence is at issue, as prosecutors can now technically call in their experts to form “independent opinions” to sidestep a defendant’s right of confrontation.
Boston DUI / OUI Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Drunk Driving Law Violations, including Operating Under the Influence of Alcohol and Leaving the Scene of Property Damage.
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