September 11, 2009

Texas Court of Appeals

Cuadros-Fernandez v. State 5th COA

8-28-09 : Cite No. 05-06-01464-CR : Capital Murder: Admissibility of Evidence and Expert Witnesses

Issue 1 – Admissibility of evidence

Should the trial court have admitted DNA evidence and testimony through the custodian of the DNA testing results rather than through the expert who analyzed the evidence?

Holding 1

No. The expert prepared the material intending it to be used for trial, and the report was "functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’" Admission of the report therefore violated the defendant’s right to confront the witness.

Issue 2 – Exclusion of expert witness

Should the trial court have excluded a defense expert’s contradictory testimony about whether a cabinet door had been used as the murder weapon?

Holding 2

No. The defendant established both the expertise and the reliability of the cabinetmaker though experience, and the testimony was specifically related to the issue of how the injuries to the child were committed. Read Opinion.


The SCOTUS case on admissibility of lab reports was decided after the trial in this case occurred, so the judge and prosecutor should get some slack in making the wrong call at trial. However, in a murder trial that depended heavily on DNA evidence, it would seem appropriate to make sure the person testifying at trial would have conducted the testing or AT LEAST was capable of testifying that the DNA testing was done properly. How in the world can the State expect to satisfy even the Rules of Evidence, much less the 6th Amendment right to cross-examination, if the testifying expert didn’t conduct the tests and wasn’t even familiar with the field of DNA (she was a trace-evidence analyst)? In essence, the "expert" was just a records custodian. And, frankly, the approach of just admitting the report as a business record was an overly simplistic understanding of a business record, even before Melendez-Diaz. The exclusion of the cabinet expert is a closer call, but the court of appeals makes a good point that the State can’t argue the cabinet was a key piece of evidence and then argue exclusion of the defense expert was harmless.

Setting aside these problems, the State’s investigation and case was strong in excluding other causes of death and should be equally strong on retrial.


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