Evidence—Expert May Reasonably Rely Upon Non-Testifying Expert—Confrontation Clause

State v. Kapp, __Az. Adv. Rep.__, No 1 CA-CV 13-0599 (App. Div. I, October 9, 2014) (J. Howe)

ARIZONA RULE OF EVIDENCE RULE 703 ALLOWS EXPERT TO REASONABLY RELY UPON WORK OF NONTESTIFYING EXPERT WITHOUT VIOLATING CONFRONTATION CLAUSE

Defendant was charged with DUI and speeding. The state attempted to call a criminologist to testify to the blood alcohol content based upon laboratory work up of defendant's blood done by another expert who moved out of state and was not testifying. Trial court excluded the expert testimony as a violation of the 6th Amendment Confrontation Clause.  The Arizona Court of Appeals reversed.   The court of appeals noted that rule 703 of the Arizona Rules of Evidence provides, “an expert may testify to otherwise inadmissible evidence, including the substance of a non-testifying expert's analysis , if such evidence forms the basis of the expert's opinion and is reasonably relied upon by experts in the field.”   The 6th Amendment Confrontation Clause of the U.S. Constitution requires a defendant have the right to confront his accusers.  The court found that the right to cross-examine the testifying expert satisfied this constitutional protection.  “Consequently, when an expert gives an independent opinion, the expert is the witness whom the defendant has the right to confront. In such cases, the Confrontation Clause is satisfied if the defendant has the opportunity to fully cross-examine the expert witness who testifies against him, allowing the factfinder to understand the basis for the expert's opinion and determine whether that opinion should be found credible.”

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