State v. Clark

Defendant was convicted of possession with intent to sell methamphetamine. The substance was identified by an analyst. That analyst did not testify at trial. Instead, a separate expert who did not test the substance testified based upon the lab report from the original analyst. Defendant objected, but the testimony was allowed. The Court of Appeals overturned the conviction based on the Confrontation Clause. The Court of Appeals relied heavily upon Smith v. Arizona, which was decided by the Supreme Court of the United States during the pendency of Mr. Clark’s appeal. Smith established under similar facts that the lab report in question was hearsay, but remanded to the Arizona court to consider whether the report was testimonial (it must be both hearsay and testimonial to trigger the Confrontation Clause). The NC Supreme Court previously decided that such reports are testimonial in State v. Craven. Therefore, based on Smith and Craven, the Court of Appeals held that the report was both hearsay and testimonial. The NC Supreme Court granted the State’s PDR. The Supreme Court is now confronted with whether to overrule its own 2013 case, State v. Ortiz-Zape, which may now be in conflict with the Supreme Court of the United States’ opinion in Smith.

At the heart of the case is whether machine-generated data can be testimonial or hearsay. Although the NC Supreme Court held previously in State v. Lester that truly machine-generated datasets are neither hearsay nor testimonial, NCAJ’s brief contends (based largely on precedent from the Supreme Court of the United States) that this exception should not apply “when the results involve human influence, or the exercise of human discretion, as is the case with the drug analysis evidence in this case.” Many datasets often understood as machine generated actually require substantial expertise, including calibration of equipment, selection of appropriate testing samples, and strict adherence to testing protocols. Often, a subsequent testifying expert must rely not only upon raw data from a prior analyst, but on that analyst’s notes and documentation to make sure that the results were properly obtained. In such cases, a subsequent testifying expert is relying on statements of the prior analyst, such that the Confrontation Clause is triggered.