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When does an expert witness need not testify at trial?

Posted Wednesday, January 30, 2019 by Andrew Charles Huff

Must an expert witness who extracted data from a cell phone found at a crime scene testify at trial because of the right to confront?

This was the issue involving data extracted from a cell phone found at one of the incident scenes. The phone was sent to an out of state crime lab to perform a “chip-off” procedure. “Chip-off” forensics is a high-tech method of extracting and analyzing data stored on flash memory chips. This method often allows the extraction of data from devices even if the device is damaged or the data has been deleted.

In this case, the technician who performed the chip-off data extraction could not be located and the State called another witness instead to admit the data extraction results. This expert admitted that she did not extract the data and that her testimony relied entirely on the report of testing done by another witness. At trial, this second expert testified about the chip-off process and the preparation of the resulting report but did not testify about the content of the cell phone found at the scene of the robbery.

On appeal, the defendant argued that the trial court violated their rights of confrontation when it admitted the cell phone data extraction report when they had no opportunity to cross-examine the original expert and that using surrogate witness was not sufficient to protect their rights to confrontation.

However, the Court held that because the cell phone data extraction report did not directly accuse the defendant, the original expert was not a “witness against” the appellants and their confrontation rights were not implicated. IN making this decision, the Court applied a two-part test to determine whether the lack of testimony from a witness who assisted in the preparation of forensic evidence testing implicates the confrontation clause. The Court held that an expert’s testimony comes within the scope of the confrontation clause only if (1) the person is a “‘witness’ by virtue of making a statement of fact to the tribunal” and (2) the person is a witness “‘against’ the defendant by making a statement that tends to inculpate the accused.”

Therefore, the Court held that the confrontation clause did not require testimony from the technician because he was not a “witness against” the defendant.

Washington State Court of Appeals, Division TwoJanuary 3, 2019No. 49245-8-II

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