Commonwealth v. Greineder

Citation984 N.E.2d 804,464 Mass. 580
Decision Date14 March 2013
Docket NumberSJC–08866a.
PartiesCOMMONWEALTH v. Dirk K. GREINEDER.
CourtUnited States State Supreme Judicial Court of Massachusetts

464 Mass. 580
984 N.E.2d 804

COMMONWEALTH
v.
Dirk K. GREINEDER.

SJC–08866a.

Supreme Judicial Court of Massachusetts,
Norfolk.

Submitted Nov. 8, 2012.
Decided March 14, 2013.


[984 N.E.2d 805]


James L. Sultan for the defendant.

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.


The following submitted briefs for amici curiae:

Claudia Leis Bolgen, Woburn, for Committee for Public Counsel Services.

Inna Landsman for Massachusetts Association of Criminal Defense Lawyers.

Martha Coakley, Attorney General, Susanne G. Reardon, Assistant Attorney General, David F. Capeless, District Attorney for the Berkshire District, C. Samuel Sutter, District Attorney for the Bristol District, Michael O'Keefe, District Attorney for the Cape and the Island District,

[984 N.E.2d 806]

Jonathan W. Blodgett, District Attorney for the Essex District, Mark G. Mastroianni, District Attorney for the Hampden District, Gerard T. Leone, Jr., District Attorney for the Middlesex District, David E. Sullivan, District Attorney for the Northwestern District, Daniel F. Conley, District Attorney for the Suffolk District, & Joseph D. Early, Jr., District Attorney for the Worcester District, for the Attorney General & others.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.


SPINA, J.

[464 Mass. 581]This case is again before us after the United States Supreme Court, in Greineder v. Massachusetts, ––– U.S. ––––, 133 S.Ct. 55, 183 L.Ed.2d 699 (2012), vacated the judgment and remanded Commonwealth v. Greineder, 458 Mass. 207, 936 N.E.2d 372 (2010)( Greineder ), to this court. The remand came with instructions to give the case further consideration in light of the recent Supreme Court decision in Williams v. Illinois, ––– U.S. ––––, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012)( Williams ). Our review proceeds accordingly, and we conclude that Williams does not require us to change our jurisprudence.1 Therefore, we affirm the defendant's conviction and the order denying his motion for a new trial.

1. Greineder. A recitation of the underlying facts is unnecessary as the facts have been fully set forth in our decision in Greineder, supra, which we incorporate by reference. We do, however, briefly recount our previous determination that the [464 Mass. 582]trial judge properly admitted the expert opinion of Dr. Robin Cotton, the forensic laboratory director of Cellmark Diagnostics laboratory (Cellmark), a private deoxyribonucleic acid (DNA) testing laboratory, that the defendant's DNA matched the DNA found on a knife and two gloves recovered from the crime scene, despite Cotton's reliance on the DNA test results obtained by a nontestifying analyst to form the basis of her opinion. Greineder, supra at 236, 936 N.E.2d 372. We held that such expert opinion testimony did not violate the defendant's confrontation right pursuant to the Sixth Amendment to the United States Constitution 2 “because the expert witness [was] subject to cross-examination about her opinion, as well as ‘the risk of evidence being mishandled or mislabeled, or of data being fabricated or manipulated, and as to whether the expert's opinion [was] vulnerable to these risks.’ ” Id., quoting Commonwealth v. Barbosa, 457 Mass. 773, 791, 933 N.E.2d 93 (2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 2441, 179 L.Ed.2d 1214 (2011)( Barbosa ). We did, however, determine that Dr. Cotton's testimony concerning the details of the nontestifying analyst's DNA test results (illustrated by charts marked as chalks) was admitted in error. Greineder, supra at 237, 936 N.E.2d 372 (testimony concerning data, “while providing basis for [the] opinion, was hearsay”). Our review proceeded under the prejudicial error standard, and (for reasons we elaborate on infra ) we determined that the defendant suffered no

[984 N.E.2d 807]

prejudice on account of the erroneous admission of the data that formed the basis of Dr. Cotton's expert opinion. Id. at 239, 936 N.E.2d 372. As to that issue, we accordingly declined to grant relief under G.L. c. 278, § 33E, and affirmed the defendant's conviction and the denial of his motion for a new trial. Id. at 255–256, 936 N.E.2d 372.

2. Massachusetts evidentiary rule on bases of expert opinion testimony. We begin our analysis of the continued validity of our approach to protecting the confrontation right of criminal defendants with a brief review of the Massachusetts evidentiary rule on expert opinion testimony and its permissible bases. The traditional rule was that an expert's opinion had to be based either on evidence in the record or on facts of which the expert [464 Mass. 583]had direct, personal knowledge. See Barbosa, supra at 784–785, 933 N.E.2d 93. In Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531, 499 N.E.2d 812 (1986), we expanded the permissible bases of expert opinion testimony to include “facts or data not in evidence if the facts or data are independently admissible and are a permissible basis for an expert to consider in formulating an opinion.” Compare Mass. G. Evid. § 703 (2012), with Fed.R.Evid. 703 (expert opinion may be based on “inadmissible” facts or data). To determine “independent admissibility,” courts consider whether the underlying facts or data would be admissible through an appropriate witness. See Commonwealth v. Markvart, 437 Mass. 331, 337–338, 771 N.E.2d 778 (2002), quoting Department of Youth Servs. v. A Juvenile, supra. See also Mass. G. Evid., supra at § 703, note at 219 (DNA analyst may testify to tests personally conducted). As long as “independently admissible,” expert opinion may be based on facts or data not actually admitted in evidence.

Although facts and data not in evidence may form the basis of an expert witness's opinion testimony, the expert may not present on direct examination the specific information on which he or she relied, see Commonwealth v. McNickles, 434 Mass. 839, 857, 753 N.E.2d 131 (2001), and cases cited, because expert testimony to the “fact[s] of the test results obtained by someone else ... [is] hearsay.” Commonwealth v. Evans, 438 Mass. 142, 152, 778 N.E.2d 885 (2002), cert. denied, 538 U.S. 966, 123 S.Ct. 1763, 155 L.Ed.2d 521 (2003). See Commonwealth v. Cohen, 412 Mass. 375, 393, 589 N.E.2d 289 (1992), quoting McCormick, Evidence § 246, at 729 (3d ed. 1984) (defining hearsay as statement, other than one made by declarant testifying at trial or hearing, offered in evidence to prove truth of matter asserted). The expert may, however, be required to disclose the facts or data that formed the basis of the expert opinion on cross-examination. See Mass. G. Evid., supra at § 705, at 223. Disallowing direct testimony to the hearsay basis of an expert opinion helps prevent the offering party from slipping out-of-court statements not properly in evidence in through the “back door” (citation omitted). Department of Youth Servs. v. A Juvenile, supra. Our prohibition of expert testimony concerning a nontestifying analyst's test results (even where those results formed the basis of the expert's opinion), on grounds that such basis evidence is offered for its truth and, therefore, is hearsay, differs from evidentiary rules in some other jurisdictions. Under Rule 703 of the Federal Rules of Evidence, for example, an [464 Mass. 584]expert witness may disclose the facts or data that formed the basis of the expert opinion during direct examination for the limited, nonhearsay purpose of explaining the bases for the expert opinion. See Williams, supra at 2239–2240 & n. 10, quoting Notes of Advisory Committee on Proposed Rules

[984 N.E.2d 808]

to Fed.R.Evid. 703, 28 U.S.C. app. 361 (2000). The same is true in some States. See Williams, supra at 2234, citing Ill. Rule Evid. 703 (State evidence rule permitted introduction of basis of expert opinion where basis evidence not offered for its truth).

In Massachusetts, we draw a distinction between an expert's opinion on the one hand and the hearsay information that formed the basis of the opinion on the other, holding the former admissible and the latter inadmissible. See Department of Youth Servs. v. A Juvenile, supra at 531–532, 499 N.E.2d 812. See also Barbosa, supra at 783–784, 933 N.E.2d 93 (“Where a Commonwealth expert testifies to her own opinion, the opinion is not hearsay, because the declarant of the opinion is testifying at trial”). The admission of expert opinion but exclusion of its hearsay basis protects a criminal defendant's Federal and State constitutional right to confront witnesses. Id. at 783, 933 N.E.2d 93 (“our evidentiary rules and the Sixth Amendment are in harmony”). Expert opinion testimony, even if based on facts and data not in evidence, does not violate the right of confrontation because the witness is subject to cross-examination concerning his or her expert opinion and the reliability of the underlying facts and data. Id. at 785–786, 933 N.E.2d 93.

3. Nexus between rules of evidence and right of confrontation. To illustrate “the intersection between our common-law rules of evidence concerning expert testimony and the constitutional right of confrontation,” id. at 783, 933 N.E.2d 93, we highlight several foundational cases decided in the wake of the Supreme Court's monumental Sixth Amendment decision in Crawford v.Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)( Crawford ),3 that concern a criminal defendant's confrontation right in the context of expert opinion testimony that relies on a nontestifying analyst's forensic test results.

Several years after Crawford, supra, we considered the admissibility of expert opinion and testimony to its basis in [464 Mass. 585]Commonwealth v. Nardi, 452 Mass. 379, 387–396, 893 N.E.2d 1221 (2008)( Nardi ). One question presented was whether an expert witness could testify to the autopsy findings of a pathologist who performed the autopsy but was unavailable to testify at trial. Id. at 383, 391–396, 893 N.E.2d 1221. We concluded that the expert's direct testimony about the...

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