In BULLCOMING v. NEW MEXICO, No. 09-10876 (Jun. 23, 2011) the U.S.
Supreme Court held that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as "testimonial" for Confrontation Clause purposes. Absent stipulation, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the statements in the report. The accused has the right 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. Surrogate testimony is not adequate to satisfy the Confrontation Clause even if the analyst "simply transcribed the resul[t] generated by the gas chromatograph machine," presenting no interpretation and exercising no independent judgment. Slip opinion at 10. "This Court settled in Crawford[ v. Washington, 541 U. S. 36 (2004),] that the 'obviou[s] reliab[ility]' of a testimonial statement does not dispense with the Confrontation Clause.... Accordingly, the analysts who write reports that the prosecution introduces must be made available for confrontation even if they possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa." Slip opinion at 11 (citations and internal quotation marks omitted). [Editor's note: The immediate issue in this case, the predicate for admissibility of breath test reports in DUI cases, was resolved in Florida in State v. Belvin,
986 So. 2d 516 (2008). However the opinion in Bullcoming is susceptible to much broader reading than Belvin. Note, for example, the Court's comments addressing retesting, slip opinion at 16-17.]
In MAPP v. STATE, No. SC09-1838 (Fla. Jun. 23, 2011), the Florida Supreme Court held that a sentencing order that designated the Defendant a habitual felony offender was properly reviewable under Fla. R. Crim.
P. 3.800(b). The Court held that rule 3.800(b) is intended to permit the preservation of errors in orders at the earliest possible time in order to use judicial resources efficiently, not to abrogate the requirement for contemporaneous objections because many errors are not immediately apparent at sentencing and the trial judge is in the best position to resolve the error. However, when the error complained of affects the ultimate sanction imposed, as does an HFO designation, it is cognizable under 3.800(b). Slip opinion at 6. "[W]hen, as here, there is a clear sentencing error that affects the ultimate sanction imposed, it is cognizable under 3.800(b)." Slip opinion at 7.
In CASIAS v. STATE, No. 2D09-4952 (Fla. 2d DCA Jun 24, 2011) the court addressed the predicate for admissibility of scientific evidence.
[Editor's note: The report of this case includes a good review of the law of admissibility of scientific evidence in general, and a quick overview of the standard for analysis of deoxyribonucleic acid (DNA) evidence.]
Blood from the scene of a burglary of an unoccupied dwelling was tested for DNA and the Defendant was identified as a possible contributor. At trial, an FDLE analyst testified that the DNA extracted from the sample collected at the scene matched that obtained from the Defendant post-arrest. No testimony was presented concerning the methodology used in calculating the FDLE analyst's population frequency statistics. Over objection, the FDLE analyist testified to her conclusion that, based on her comparison of the Defendant's profile to a statistical database, she would expect to find a DNA profile like the Defendant's in 1 in 1.7 quadrillion Caucasians, 1 in 30 quadrillion African-Americans, and 1 in 360 trillion Southeastern Hispanics.
Discussing the predicate for scientific evidence in general, the court
held: "When the admissibility of scientific or other technical opinion evidence offered by an expert is challenged, the trial court serves a 'gatekeeping' function. As threshold issues to admissibility, the trial court must determine (1) whether the expert testimony will assist the jury in understanding the evidence or determining a fact in issue; (2) whether the expert's testimony is based on a scientific principle or methodology that is generally accepted within the scientific community; and (3) whether the particular witness is qualified to present opinion testimony on the subject at issue. See Ramirez v. State, 651 So. 2d 1164, 1167 (Fla. 1995). The second threshold issue is based on the standard set out in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
1923), which requires that the scientific principles or methodologies to which an expert testifies be generally accepted in the scientific community before they will be considered valid in the courts. If the challenged evidence satisfies these three criteria, the court may 'open the gate' and allow the expert to testify to his or her opinion. Id.
At that point, it is up to the jury to determine what, if any, weight to afford that expert's opinion. Id." In a footnote the court reminded:
"The Florida Supreme Court adopted the general standard set forth in Frye in Bundy v. State, 471 So. 2d 9, 18 (Fla. 1985), and specifically adopted the Frye test of general acceptance within the scientific community in Stokes v. State, 548 So. 2d 188, 195 (Fla. 1989)." Slip opinion at 3.
As to DNA evidence the court held: "'DNA testing requires a two-step process, one biochemical and the other statistical. The first step uses principles of molecular biology and chemistry to determine that two DNA samples look alike. The second step uses statistics to estimate the frequency of the profile in the population. Both steps must satisfy the Frye test.' Butler v. State, 842 So. 2d 817, 827-28 (Fla. 2003) (emphasis added); see also Brim v. State, 695 So. 2d 268 (Fla. 1997)."
Slip opinion at 4.
The DCA concluded that the Defendant's "challenge to [the FDLE analyst]'s testimony implicates both the second and third threshold issues. The record is clear that the State never offered any evidence as to what methodology [the analyst] used to generate her statistical analysis. Ipso facto, there was no evidence presented to address whether that methodology was generally accepted in the scientific community. Without such evidence, the trial court, whose gatekeeping role required it to determine whether the methodology used to generate the statistical analysis satisfied the Frye test, see Brim, 695 So. 2d at 272, simply had no basis to do so. Moreover, without evidence concerning the methodology used by [the analyst], the trial court had no basis upon which to find that she was qualified, whether by education, experience, or otherwise, to present opinion testimony concerning the population frequency statistics she generated." Slip opinion at 7-8.
The DCA granted the limited relief which is the standard in DNA cases:
"as in Brim and Gibson[ v. State, 915 So. 2d 199 (Fla. 4th DCA 2005)], we reverse and remand for a limited evidentiary hearing. At that hearing, the trial court must hear evidence concerning what methodology Johnson used to calculate the population frequency statistics she offered at trial. See Brim, 695 So. 2d at 275. Based on that evidence, the court must determine whether the methodology used satisfies Frye's requirement of general acceptance within the scientific community. Id.
If the trial court finds that the methodology used satisfies the Frye test, [the Defendant]'s conviction will stand. See id. If not, [the Defendant] is entitled to a new trial." Slip opinion at 9-10.
(footnotes omitted).
In STATE v. CHIQUET, No. 2D10-3420 (Fla. 2d DCA Jun. 22, 2011), the Defendant's motion to suppress evidence seized when a search warrant was executed at a residence was granted by the trial court; the State appealed. The affidavit for issuance of the warrant alleged that certain files were on a particular computer. Nevertheless the warrant provided for search of "[a]ny and all devices capable of storing images"
at the residence. The DCA reversed the order suppressing the evidence, holding that facts omitted from an affidavit for search warrant are only material if there is a substantial possibility that had the magistrate been aware of the omission he would not have found sufficient probable cause for issuance of a warrant. Here, despite this reference to one particular computer in the affidavit, the magistrate had signed a search warrant for multiple storage devices. The DCA concluded that if the magistrate were willing to allow the police to search for multiple storage devices based on the allegation that the Defendant stored images on only one computer, there is not a substantial possibility that describing that particular computer would have resulted in a finding of insufficient probable cause to issue the warrant. Therefore the omission could not be said to have misled the magistrate and was not a material omission.
