Following a jury trial, defendant K.W. was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). The State alleged the victim was under the influence of ketamine and other substances at the time of the offenses based on toxicological testing of her blood and urine. The State's toxicologist who performed the testing and prepared its toxicology report was unavailable to testify at trial. In her stead, the State called the toxicologist's supervisor as permitted by our Supreme Court's decision in State v. Michaels, 219 N.J. 1 (2014). In Michaels, the Court held a substitute expert can testify at trial without violating a defendant's right to confrontation if the expert reaches an independent opinion based on machine-generated testing data from testing performed by a non-testifying technician. In this case, the supervisor had peer reviewed the original toxicologist's report, independently reviewed the toxicologist's report, notes, and data prior to trial, and formed an independent opinion that the results of the report were correct. The supervisor was qualified as an expert without objection and testified based on the forensic testing performed by the original toxicologist. On appeal, the defendant argued the supervisor's testimony violated his right to confrontation under the United States and New Jersey Constitutions based on the United States Supreme Court's decision in Smith v. Arizona, 602 U.S. 779, 144 S. Ct. 1785 (2024), which was decided after defendant's trial. The defendant contended our Supreme Court's decision in Michaels was effectively overruled by Smith. The defendant argued that Smith held a defendant's confrontation right is violated unless the individual who performed the forensic testing testifies at trial. The court affirmed. It determined the supervisor's trial testimony violated the rule established in Michaels because she repeatedly read directly from the original toxicologist's report, rather than testifying to her own independent opinions. Because defendant did not object at trial and affirmatively used the expert's testimony defensively, the court concluded his Confrontation Clause argument was waived. The court also determined Michaels remains sound law after Smith. Specifically, the court concluded machine-generated data is not the equivalent of a "testimonial statement" for Confrontation Clause purposes. Therefore, if a substitute expert testifies at trial after reaching an independent opinion based on machine-generated data, as permitted by Michaels, there is no Confrontation Clause violation. DOCKET NO. A-2049-23. Full opinion at Criminal Law-Recent Cases Vercammen Law: https://www.blogger.com/blog/posts/38696672. | 
