The issue of what constitutes a violation of the right of confrontation in both DUI and criminal cases has been a hot topic in the last few years. The US Supreme Court has handed down no less than 2 major cases on the issue in the last few years and the California Courts are nearly tripling that number. At its core, the right guarantees us all from a witness testifying against us without then in Court with the ability to cross examine them. This recent case examines that right within the context of a drug and gang case.
In People v. Archuleta, A jury convicted the accused of possession of methamphetamine and active gang participation. Police officers received information that a homicide suspect could be found at appellant's residence. At the residence, they found appellant and another suspect in the garage, each holding suspected methamphetamine. (They did not find the homicide suspect.) At trial, the prosecution's gang expert, a sheriff's deputy, testified that appellant was a high-ranking member of and active participant in the East Side Victoria (ESV) criminal street gang. He based his opinion in part on the testimonial hearsay statement of another gang member, Perez. The court considered whether the expert's testimony violated appellant's Sixth Amendment right to confrontation and concluded that federal cases provide the proper standard. Experts may rely on testimonial hearsay in forming their opinions but may not simply parrot the content of such hearsay to the jury on direct examination unless the declarant is unavailable or the defendant had a prior opportunity for cross-examination.
The Justices opined that the question is whether the expert is giving an independent judgment or merely acting as a transmitter of testimonial hearsay. The court found that admission of Perez's out-of-court statement that appellant directed an uncharged robbery of a drug dealer by ESV gang members, as the basis for the expert's opinion, violated appellant's Sixth Amendment rights. The statement essentially was offered for its truth and it was not shown that Perez was unavailable or that appellant had a prior opportunity to cross-examine him. However, the error was deemed harmless because the verdicts on the possession and gang participation charges were unattributable to the statement.
What this effectively means is that although the Court found the evidence inadmissible, they still believed that there was enough evidence to uphold the conviction. This case sheds additional light on this crucial right. There are other cases within the DUI context that disallow an expert to testify about blood tests without being present in Court and available for cross examnation.