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Name: Flournoy v. Small
Case #: 11-55015
Court: US Court of Appeals
District 9 Cir
Opinion Date: 05/30/2012

Admission of the testimony of a forensic analyst, which was based on the reports of other crime laboratory employees, did not violate the confrontation clause. Defendant was convicted in California State court of rape and assault with intent to commit rape. He asserted the trial court erred in allowing a forensic analyst to testify regarding the results of DNA tests based on the reports of other crime laboratory employees. His conviction was affirmed in state court. Under AEDPA, the federal court must defer to the state court’s determination unless it was expressly contrary to federal law as interpreted by the United States Supreme Court. In Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, the Court held that a forensic laboratory report is testimonial evidence for confrontation clause purposes, but this occurred after the state court’s denial of Flournoy’s claim. In addition, the United States Supreme Court held only that the report could not be admitted without a testifying witness, and here, a forensic analyst testified regarding the report. Currently, there is no clearly established federal law that would render the testimony here unreasonable. This is reflected in Justice Sotomayor’s concurring opinion in Bullcoming v. New Mexico (2011) __ U.S. __, where she noted as unresolved the issues whether experts could testify based on reports they did not prepare and which were not admitted into evidence, as well as the “degree of proximity” the witness must have to the scientific test performed. In addition, Flournoy’s attorney was not ineffective for failing to object to the testimony on confrontation grounds as there was no reasonable probability the trial court would have sustained the objection or the state appellate court would have overturned the conviction on this ground.