DALLAS COURT OF APPEALS CORRECT THAT DEFENDANT SHOULD BE ALLOWED TO GET ANSWERS ABOUT DRUG TESTING FROM THE RIGHT PERSON


 his week the Texas Court of Criminal Appeals applied two recent United States Supreme Court cases in an appeal from Dallas County concerning a defendant's Sixth Amendment right to confront and cross-examine witnesses in a common scenario in controlled substance cases: the "reviewer" from the laboratory that tested the substance (cocaine) testifies as an expert witness to identify the substance with reference to the report of a subordinate chemist who conducted the testing, instead of having the subordinate chemist testify in person. The Court of Criminal Appeals resolved the issue in favor of the defendant; the decision of the Dallas Court of Appeals that remanded the case for a new trial.

The rule in Texas is now clear that testimony from a witness about identifying a substance must be given by that witness, not merely by a testing procedure reviewer just repeating what was written in the non-testifying expert's laboratory report. In other words, the defendant's right to confront and cross-examine the real expert was violated by the State using the real expert's report as sponsored by the proxy witness, who did not have any personal knowledge about the test that identified the substance. https://askcompetentlawyer.com/civil-litigation/ More simply, "the defendant has no way to explore the types of corruption and missteps the Confrontation Clause was designed to protect against," as the majority put it.

The majority opinion also seemed to question whether the State tacitly participated in a system where the laboratory reports would not be arguably informal, which would support a legal argument that the rights of cross-examination and confrontation would not be triggered. In response to the State's argument that the reports were informal, the majority quoted one of the recent Supreme Court cases, which stated that "the Confrontation Clause reaches bad-faith attempts to evade the formalized process."

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