Admitting testimonial hearsay violates the Confrontation Clause, even if offered solely as the basis for the opinion of an expert witness.

Carrington v. District of Columbia, No. 11-CT-698
(decided Oct. 17, 2013)

Players: Washington, Thompson, Newman. Opinion by Chief Judge Washington. Jeffrey L. Light for Mr. Carrington. Trial judge: Marisa Demeo.

Facts: Derrick Carrington was spotted by police officers driving “very slow with little control.” When the officers activated their emergency lights, Mr. Carrington rolled through a stop sign, turned left into oncoming traffic, made a u-turn into more oncoming traffic, and then hit the curb and stopped. When the officers approached, Mr. Carrington was confused by their orders, couldn’t put his car in park, couldn’t get out of the car, stand up, or walk without help, had slurred speech, dilated pupils, and was laughing the whole time. He also failed three field sobriety tests. However, the officers didn’t smell any alcohol (or any other drug) and, back at the station, a breath alcohol test registered a perfectly clean .000. Suspecting that Mr. Carrington had taken PCP, the police got a urine sample and sent it off for tests. The test results were positive for PCP and THC. Mr. Carrington was charged with DUI. At trial, the government called Lucas Zarwell as an expert witness to testify about the urine testing. The problem was that Zarwell did not actually perform or observe the lab work and based his testimony off a review of the lab report and other paperwork. The trial judge allowed Zarwell’s testimony over the defense’s Confrontation-Clause objection, explaining that she was admitting Zarwell’s testimony about the content of the lab report not for its truth, but as the basis for Zarwell’s opinion that Mr. Carrington was under the influence of PCP. The judge, in a bench trial, found Mr. Carrington guilty of DUI, and added that she found the evidence convincing beyond a reasonable doubt even without Zarwell’s testimony.

Issue: Whether admitting testimonial hearsay for the purportedly limited purpose of providing a basis for an expert’s opinion violates the Confrontation Clause.

Held:Admitting Zarwell’s testimony about the test results violated the Confrontation Clause, but the error was harmless. Under the DCCA’s recent decision in Young v. United States, 63 A.3d 1033 (D.C. 2013), Zarwell’s testimony about the urine test was testimonial hearsay because it satisfied both the “evidentiary-purpose” and “targeted-accusation” tests developed by different groups of Supreme Court Justices in Williams v. Illinois, 132 S. Ct. 2221 (2012). Admitting this testimonial hearsay, even for the limited purpose of establishing a basis for an expert opinion, violates the Confrontation Clause. The factfinder necessarily must evaluate the truth of the basis for an expert’s opinion in order to evaluate the opinion itself. Thus, the utility of the testimonial hearsay is dependent on its truth despite the purportedly “limited” purpose for its admission. However, the error in this case was harmless because (1) the DUI statute did not require the government to prove that Mr. Carrington was under the influence of any specific drug; (2) while juries may reasonably doubt a defendant’s guilt when the government doesn’t introduce scientific evidence that the jurors expect to see, this was a bench trial; and (3) Mr. Carrington’s behavior on the night of his arrest showed his “obviously impaired condition.”

Of note:
·The Court opens its opinion by explaining that the Confrontation-Clause issue “is worthy of a published opinion given the frequency with which it has appeared before this court.” The Court doesn’t think this is a difficult issue, but a lot of trial judges are getting it wrong.
·Although the trial judge expressly stated that the government had met its burden of proof even without the disputed expert testimony, that doesn’t factor into the Court’s harm analysis at all.
·While the Court’s Confrontation-Clause analysis is pretty straightforward, its harm analysis is more controversial.
oThough Mr. Carrington’s behavior as described by the Court makes it seem pretty clear he was high, a reasonable factfinder might have wondered whether he had a medical condition, e.g., a stroke. Though the Court notes that Mr. Carrington never complained about a medical condition, that hardly proves he did not have one (a person who has just suffered a stroke probably wouldn’t be in a position to point out he has just suffered a stroke). The urine test, however, pretty much eliminated any doubt that Mr. Carrington’s behavior was the result of anything other than his drug use. For that reason, it was a critical piece of evidence even if the government’s remaining evidence was strong.
oThe Court draws a poorly reasoned distinction between the importance of lab tests in DUI cases and drug-possession cases, premised on the fact that the type of drug at issue matters only in the latter. The urine test in this case mattered not because it showed Mr. Carrington was high on PCP, but because it showed he was high on something. The Court also overstates the importance of lab reports in drug-possession cases. A DEA-7 report isn’t “necessary” in those cases because the government can prove the chemical nature of a controlled substance through circumstantial evidence. A case like Duvall v. United States, 975 A.2d 839 (D.C. 2009), shows that even when there is pretty strong circumstantial evidence that a person possessed a specific controlled substance, admitting a DEA-7 report is not harmless error. And even for a charge of attempted possession of a controlled substance, where the government does not have to prove that what the defendant tried to possess actually was a specific drug, the Court has held that a DEA-7 report was harmful. See, e.g., Washington v. United States, 965 A.2d 35, 43–44 (D.C. 2009).
oThe distinction the Court draws between the importance of scientific evidence in jury trials and bench trials is troubling. If a jury might reasonably doubt the government’s case if the government doesn’t offer the type of scientific evidence that is commonly and reasonably expected, then why shouldn’t a judge do the same? Indeed, the very case the Court cites for this point — Duvall — was a bench trial where the Court held that a DEA-7 report was harmful. The Court seems to be saying that trial judges are more willing to give the government the benefit of the doubt than juries so it’s harder to show harm in a bench trial.
How to use:
·The Court is making it very clear that if the government wants to introduce scientific evidence — DNA tests, urinalysis tests, DEA-7 reports, etc. — it has to have the people who actually performed or observed the tests testify and be subject to cross-examination . The government cannot sneak this evidence in by offering it as the basis for expert testimony instead of for its “truth.”
· For appellate practitioners, the Court’s harm analysis suggests that it will be harder to show harm when scientific evidence is erroneously admitted in a bench trial rather than a jury trial.DG