For anyone practicing in the area of DUI and drunk driving, the United States Supreme Court in Bullcoming v. New Mexico, (Slip opinion, June 2011), addressed the issue of “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification- made for the purposes of proving a particular fact- through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” But the reasoning of Bullcoming has application well beyond DUI and drunk driving cases- and is relevant to any case where the state seeks to admit the certified findings of an expert or scientist through the surrogate testimony of another scientist who did not actually perform the test, and did not observe the test.

The Bullcoming court held that “surrogate testimony of that order does not meet the constitutional requirement.” “The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”

In Bullcoming, defendant’s blood was drawn following a drunk driving arrest and was tested to have a blood alcohol concentration of .21 by lab scientist Curtis Caylor, who also signed the lab report stating as much. On the day of trial the state announced that it would not be calling Curtic Caylor who was recently put on unpaid leave for unspecified reasons. Instead the state sought to admit Caylor’s certification report as a business record exception to hearsay through the testimony of a colleague (another scientist who worked with Caylor) but who had neither observed nor reviewed Caylor’s analysis.

The court reiterated, “The Sixth Amendment’s Confrontation Clause confers upon the accused ‘in all criminal prosecutions, …the right…to be confronted with the witnesses against him.’” An analyst’s certification prepared in connection with a criminal investigation or prosecution, the Court held, is “testimonial,” and therefore within the compass of the Confrontation Clause. Citing United States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006), the Bullcoming court stated, “if a particular guarantee of the Sixth Amendment is violated, no substitute procedure can cure the violation, and no additional showing of prejudice is required to make the violation complete. “If (as in U.S. v. Gonzalez-Lopez) representation by substitute counsel does not satisfy the Sixth Amendment, neither does the opportunity to confront a substitute witness.

In Ybarra v. State (March 3, 2011), the Nevada Supreme Court set out to define the parameters of “developmental period” within the meaning of NRS 179.098(7) which sets forth the procedure for determining if a Defendant is deemed mentally retarded.

In short, it concluded that defendant “failed to prove by a preponderance of the evidence that he suffered from significant subaverage intellectual functioning and adaptive behavior deficits during the developmental period, which extends to 18 years of age.”

Here’s the Court’s introductory analysis:

Although the United States Supreme Court has held that the execution of mentally retarded individuals violates the Eighth Amendment’s prohibition against cruel and unusual punishment, Atkins v. Virginia, 536 U.S. 302, 321 (2002), the Court did not prescribe a definition of mental retardation or procedures for determining when an individual is mentally retarded.

Instead, the Court left “‘to the State[s] the task of developing appropriate ways to enforce [this] constitutional restriction upon . . . execution[s],’” id. at 317 (first, third, and fourth alterations in original) (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)). The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.” The statute provides that upon motion by a defendant,[3] the district court must conduct an evidentiary hearing to determine whether the defendant is mentally retarded. NRS 174.098(1), (2); see also NRS 175.554(5). The defendant bears the burden of proving by a preponderance of the evidence that he is “mentally retarded,” NRS 174.098(5)(b), which the Legislature defines as “significant subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior and manifested during the developmental period,” NRS 174.098(7). This court has not yet had occasion to address the statutory definition of mentally retarded. We take this opportunity to do so.

Recently, in Vega v. State, (126 Nev. Adv. Op. No. 33, August 12, 2010) the Nevada Supreme Court addressed the issue of whether the trial court committed plain error – violating Defendant’s Sixth Amendment right to confrontation – when, at trial, an expert witness (Dr. Mehta) was allowed to testify regarding the contents of an examination report previously conducted by a different expert (Suiter) who was unavailable at trial.

On appeal the court concluded that, “[t]o the extent that Dr. Mehta’s testimony admitted Suiter’s written report, including Suiter’s questions, the victim’s responses detailing the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings without Suiter being subject to cross-examination, we conclude that this violated the Confrontation Clause, Crawford, and Melendez-Diaz.”

However, not all of Dr. Mehta’s testimony violated the Confrontation Clause. After reviewing the video recording and the diagram of the gynecological examination, Dr. Mehta offered her independent opinion as an expert witness that there was a “healed transection” on the victim’s hymen. The Supreme Court concluded, “Dr. Mehta’s independent opinion based on the diagram and video recording does not violate the Confrontation Clause, Crawford, or Melendez-Diaz because Dr. Mehta’s judgment, proficiency, and methodology were subject to cross-examination.”

The Court then turned its attention to the issue of whether this error was prejudicial and, therefore, affected Vega’s substantial rights. In short order the Court dispelled any finding of plain error. Regarding the portion of Dr. Mehta’s testimony that violates Crawford and Melendez-Diaz (Dr. Mehta recounted Suiter’s questions, the victim’s answers depicting the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings), the Court reasoned that, “this testimony was duplicative of the victim’s detailed testimony describing the sexual abuse and consistent with Dr. Mehta’s independent opinion that the victim’s hymen had a “healed transection.” Furthermore, Dr. Mehta’s testimony does not implicate Vega as having caused the “healed transection,” and she acknowledged that objects other than a penis could have caused the injury. As such, we conclude that Dr. Mehta’s erroneously admitted testimony was inconsequential, and Vega has failed to demonstrate that the Crawford and Melendez-Diaz violation was prejudicial. Therefore, we conclude that the violation did not affect Vega’s substantial rights.”

A couple of things are clear after Higgs:
1. Nevada only looks to Daubert and its factors for guidance, not strict adherence; and
2. And I quote, “NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.”

In Higgs, the court explained,

[I]n Hallmark, we stated that Daubert and federal court decisions discussing it “may provide persuasive authority.” Hallmark, 124 Nev. at ___, 189 P.3d at 650. We did not, however, and do not today, adopt the Daubert standard as a limitation on the factors that a trial judge in Nevada may consider. We expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so.

A close reading of Hallmark is helpful. This court concluded that the district court abused its discretion in allowing the expert testimony of a biochemical engineer. 124 Nev. at ___, 189 P.3d at 652. In so doing, we summarized Nevada’s jurisprudence regarding expert witness testimony pursuant to NRS 50.275. 124 Nev. at ___, 189 P.3d at 650-52. We identified the three overarching requirements for admissibility of expert witness testimony pursuant to NRS 50.275 as (1) qualification, (2) assistance, and (3) limited scope requirements. 124 Nev. at ___, 189 P.3d at 650. This court then identified factors to be considered under each requirement. 124 Nev. at ___, 189 P.3d at 650-52. We were careful to note that the list of factors was not exhaustive, and we recognized that every factor may not be applicable in every case and would likely be accorded varying weight from case to case. Id. at ___, 189 P.3d at 651-52. It is worth noting that we supported our conclusion by citing to Nevada cases, not federal.

Consider the differences between NRS 50.275 and FRE 702.  NRS 50.275 states:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.

FRE 702 contains similar language, but with additional conditions, which were added in response to the Daubert trilogy (Daubert, Joiner, and Kumho):

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Whereas the federal rule mandates three additional conditions that trial judges should consider in evaluating expert witness testimony, the Nevada statute mandates no such requirements.  Rather, NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.  In Hallmark, we outlined some factors that are useful in this inquiry, but repeatedly noted that the factors enumerated “may not be equally applicable in every case.”  124 Nev. at ___, 189 P.3d at 651, 652.  We determine that the benefit of our approach is twofold: first, it gives judges wide discretion to perform their gatekeeping duties; and, second, it creates an inquiry that is based more in legal, rather than scientific, principles.

If a person is qualified to testify as an expert under NRS 50.275, the court must determine whether his or her expected testimony will assist the trier of fact in understanding the evidence or determining a fact in issue. Hallmark at 651. “An expert’s testimony will assist the trier of fact only when it is relevant and the product of reliable methodology.” Id.

In determining whether an expert’s opinion is based upon reliable methodology, a district court should consider whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization. Id. at 651-52.

If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a district court should also consider whether (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute. We again note that these factors are not exhaustive, may be accorded varying weights, and may not apply equally in every case. Id. at 652.