TO: Joint Procedure Committee
FROM: Mike Hagburg
DATE: September 6, 2012
RE: Rule 707, N.D.R.Ev., Analytical Report Admission; Confrontation
The committee briefly discussed Rule 707 at the April meeting, but decided to defer any action on the rule until the U.S. and North Dakota Supreme Courts had the opportunity to rule on pending cases involving analytical reports. These courts have now ruled.
In State ex rel Roseland v. Herauf, the North Dakota Supreme Court held that, because a signed statement attesting that a blood sample was properly drawn is required before an analytical report can be admitted into evidence, the defendant may require the state to produce the person who drew the sample to testify under Rule 707. A copy of the case is attached.
In Williams v. Illinois, the United States Supreme Court (in a split plurality decision) held that an expert witness could use a DNA profile to develop opinion testimony without the technician who produced the profile being required to testify about the profile first. Justice Thomas's concurrence, which provided the winning vote, stated that the DNA profile was not sufficiently "formal" or "solemn" to qualify as "testimonial," so the Confrontation Clause was not implicated when the profile was used by the expert witness. An analysis of the Williams opinion is attached.
A copy of Rule 707 is attached. No amendments are proposed, but the committee may wish to discuss whether any additions to the rule or the explanatory note should be made based on these recent court rulings.