153 Wash. App. 304

[No. 61804-1-I.

Division One.

November 23, 2009.]

The State of Washington, Respondent, v. Sione P. Lui, Appellant.

*306 David B. Zuckerman, for appellant.

Daniel T. Satterberg, Prosecuting Attorney, and Deborah A. Dwyer, Deputy, for respondent.

f 1 Sione Lui appeals his jury trial conviction for second degree murder in the strangulation death of his fiancée, Elaina Boussiacos. He argues that his Sixth Amendment right to confront the witnesses against him was violated when the State’s medical examiner and DNA (deoxyribonucleic acid) expert testified based partially on forensic evidence developed by others. He relies principally on the Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts,_U.S._, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), which held that a drug analyst’s “certificate of analysis” was testimonial and fell within the scope of the confrontation clause. We hold that no Sixth Amendment confrontation clause violation occurred here because Lui had a full opportunity to test the basis and reliability of the experts’ opinions and conclusions. And because Melendez-Diaz does not preclude a qualified expert from offering an opinion in reliance upon another expert’s work product, we affirm Lui’s conviction.

Lau, J.

FACTS

¶2 On February 9, 2001, Elaina Boussiacos was found dead in the trunk of her car. The State charged Sione Lui with her murder.

f 3 Lui and Boussiacos began dating in 1999. By the end of 2000, they were living together in a Woodinville apart*307ment. They spoke of getting married, but both were jealous and their relationship was volatile. Shortly before her death, Boussiacos told a friend there was no trust in their relationship because of things Lui had done behind her back. Boussiacos had discovered that Lui was seeing another woman. In late January 2001, she told someone else it was over between her and Lui and they would have to decide which of them would move out.

¶4 On January 28, Boussiacos bought a plane ticket to visit her mother in California. The flight was scheduled to leave on Saturday, February 3, at 8:30 a.m. The night before her departure, she dropped her son off with his father around 9:30 or 9:45 p.m. But she failed to leave on her flight the next morning.

¶5 Lui reported Boussiacos missing on February 7. He told a police investigator that she had returned home around 10 p.m. on Friday, February 2, he slept on the couch after she went to bed, and when he awoke the next morning, she was already gone. He claimed that he and Boussiacos had not had sex in the prior two weeks. He suggested that she may have had car trouble and some man may have grabbed her. He also speculated that someone could have followed her if she had been sneaking out to smoke.

¶6 On February 9, detectives discovered Boussiacos’s body in the trunk of her car, which was parked in a lot not far from Lui’s apartment. Dr. Kathy Raven, a pathologist in the King County Medical Examiner’s Office, performed an autopsy. Dr. Raven was unavailable to testify at Lui’s trial because she had relocated to Nevada and was testifying in another case. The State called Dr. Richard Harruff to testify instead. Dr. Harruff, the chief medical examiner and pathologist for King County and Dr. Raven’s supervisor, had cosigned the autopsy report. He explained, “To co-sign means that I have reviewed the report, the photographs, the materials collected, as evidence, I have discussed the case with the principal pathologist, and I signed to indicate *308that I agree with the findings.” Verbatim Report of Proceedings (VRP) (Apr. 16, 2008) at 1335-36.

¶7 He also testified that Dr. Raven performed Bous-siacos’s autopsy on February 10, 2001, and, at that time, he reviewed her work and agreed with her findings. He further testified that he discussed with Dr. Raven the wording to be used in the autopsy report to document the injuries observed during the autopsy. Dr. Harruff explained that in his supervisory role, he would not have signed the autopsy report unless it was completely accurate. And when describing his professional credentials, he said that as a forensic pathologist for many years, he had developed expertise on strangulation injuries. Finally, Dr. Harruff said he recalled viewing Boussiacos’s body at some point because strangulation is a subtle type of injury that tends to generate more discussion within the medical examiner’s office.

18 Lui objected that Dr. Harruff’s testimony was based on hearsay, but the trial court overruled this objection, noting that experts can rely on hearsay under ER 703.1 Lui also argued that the testimony would violate his right to confront the witnesses against him. The trial court ruled that Dr. Harruff could testify because “the confrontation requirement is satisfied by him being in court.” VRP (Apr. 16, 2008) at 1347.

¶9 Dr. Harruff testified that Boussiacos was strangled to death.2 He described signs of strangulation visible from the photographs taken during the autopsy and testified that it generally takes four minutes to strangle someone to death. In his opinion, Boussiacos could have died on February 2 or *3093 based on her body temperature when found.3 But on cross-examination, he also testified that determining time of death is very difficult. He acknowledged the possibility that she could have died on February 4, 5, 6, or 7.4 Dr. *310Harruff also testified that Boussiacos’s blood was submitted to the Washington State Toxicology Laboratory for drug and alcohol testing. When asked about the test results for nicotine, he stated, “Nicotine was not detected in the blood.” VRP (Apr. 16, 2008) at 1398.

¶10 Over Lui’s objections, the State also presented the expert testimony of Gina Pineda, an associate director of Orchid Cellmark, a private DNA testing company. Pineda previously worked for a similar company called Reliagene Technologies until Orchid Cellmark acquired it. Reliagene tested Boussiacos’s shoelaces, and Orchid Cellmark tested Boussiacos’s vaginal wash. Pineda did not personally conduct the tests, but she reviewed the notes and reports of the technicians who did.5 Pineda explained that the testing results are reduced to a machine printout that any expert can review and draw conclusions from. Pineda also testified about the laboratory’s chain of custody procedures, the protocols and tests involved, laboratory technician training and certification, and other quality assurance measures.6

*312¶11 Based on her independent review of the testing results, Pineda concluded that Lui — unlike 99.7 percent of the population — could not be excluded as a major donor to the DNA on the shoelaces. She also testified that the vaginal wash testing revealed a single male donor and that Lui — unlike 99.8 percent of the population — could not be excluded as the donor.7

f 12 In closing argument, the prosecutor summarized the State’s evidence against Lui. She pointed to witnesses who described Lui as jealous and possessive. She argued from other witness statements that Boussiacos decided to end the relationship shortly before being killed. She emphasized that Lui was alone with Boussiacos on the night of February 2, 2001, the last time anyone reported seeing her alive. Under the State’s theory of the case, Lui strangled Boussiacos to death that night or the following morning, which was consistent with Dr. Harruff’s opinion regarding the time of death.

¶13 The prosecutor also argued that Lui’s version of events was not credible. She cited several examples of his giving different accounts to different witnesses. He told some people that he and Boussiacos had ended their relationship but others that they were still planning to marry. He gave varying accounts of his relationship with another woman. He told some people that Boussiacos’s trip to California was long planned but others that he did not know about it until the night before. The prosecutor also noted that Lui claimed not to have had sex with Boussiacos but that Pineda’s testimony regarding the vaginal wash DNA test results suggested the contrary. And she mentioned that no nicotine was found in Boussiacos’s system *313despite Lui’s suggestion that she might have been abducted while sneaking outside to smoke.

¶14 The prosecutor further argued that Lui dressed Boussiacos and attempted to make it appear that she left the house on her own. Pineda’s testimony about the DNA testing of Boussiacos’s shoelaces supported this argument. Additionally, the prosecutor argued that Boussiacos was not wearing makeup as she customarily did and the materials found in her car were not what she would have packed for her visit to California. And in rebuttal closing argument, the prosecutor again emphasized Lui’s motive and opportunity to kill Boussiacos.

f 15 The jury convicted Lui of second degree murder as charged. The court sentenced him within the standard range. He now appeals.

ANALYSIS

¶16 Relying principally on Melendez-Diaz, Lui contends that the admission of Dr. Harruff’s and Pineda’s testimony violated his right to confront the witnesses against him. He argues that they relied on forensic evidence developed by others whom he had no opportunity to cross-examine. In Lui’s view, these individuals — Dr. Raven and various DNA laboratory technicians — were witnesses against him and he had the right to face them in the courtroom. We review an alleged violation of a defendant’s confrontation rights de novo. State v. Kirkpatrick, 160 Wn.2d 873, 881, 161 P.3d 990 (2007).

¶17 The Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him ....” U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Court reviewed the history and purpose of this clause. The Court noted that the right to confront one’s accusers was deeply rooted in English common law by the time of the American Revolution, but that it was occasionally dispensed with in favor of the *314civil-law practice of permitting judicial officers to privately examine witnesses with no opportunity for cross-examination. Crawford, 541 U.S. at 43. During the reign of Queen Mary, the adoption of this continental procedure became more common, which led to English efforts to curb the practice and its perceived abuses. Crawford, 541 U.S. at 43-44. The Court described similar controversies at the time of the American Revolution and ratification of the Constitution and concluded that the confrontation clause was adopted in response. Crawford, 541 U.S. at 47-49. Thus, the “principal evil” at which the clause was directed was the civil-law system’s use of ex parte examinations and ex parte affidavits as substitutes for live witnesses in criminal cases. Crawford, 541 U.S. at 50. This practice denies the defendant a chance to test his accuser’s assertions “in the crucible of cross-examination” in accord with the common-law tradition. Crawford, 541 U.S. at 61.

¶18 But the Court also emphasized that not every out-of-court statement used against a defendant at trial implicates the core concerns of the confrontation clause. For example, “[a]n off-hand, overheard remark . . . bears little resemblance to the civil-law abuses the Confrontation Clause targeted.” Crawford, 541 U.S. at 51. The Court noted that the scope of the clause is limited to “ ‘witnesses’ against the accused — in other words, those who ‘bear testimony.’ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Crawford, 541 U.S. at 51 (alteration in original) (citation omitted) (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)). Thus, the Court concluded the confrontation clause gives defendants the right to confront those who make “testimonial” statements against them and it bars admission of adverse “testimonial” hearsay.8 Crawford, 541 U.S. at 53-54.

*315¶19 The Crawford Court declined to offer a comprehensive explanation of what makes a statement “testimonial,” but it listed three possible formulations for the “core class” of testimonial statements covered by the confrontation clause:

[(1)] “ex parte in-court testimony or its functional equivalent— that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially”; [(2)] “extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions”; [(3)] “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Crawford, 541 U.S. at 51-52 (third alteration in original) (citations omitted) (quoting White v. Illinois, 502 U.S. 346, 365, 112 S. Ct. 736, 116 L. Ed. 2d 848 (1992) (Thomas, J., dissenting in part)). The Court did not endorse any of these formulations because the statements at issue — made in response to law enforcement interrogation — qualified under all of them. Crawford, 541 U.S. at 52.

f 20 And in Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), the Court refined the meaning of “testimonial” statements in the context of law enforcement interrogations. At issue were statements made during a 911 call and, in a companion case, statements made at a crime scene during police interrogation of the alleged victim. Davis, 547 U.S. at 817. The Court concluded that the statements made to the 911 operator were nontestimonial because their primary purpose was to enable police assistance to meet an ongoing emergency. The Court reasoned that the declarant “was not acting as a witness-, she was not testifying. . . . No ‘witness’ goes into court to proclaim an emergency and seek help.” Davis, 547 U.S. at 828. In contrast, the statements made at the crime *316scene were testimonial because they were elicited during police interrogation to prove past events potentially relevant to criminal prosecution. Davis, 547 U.S. at 822. The alleged victim signed a statement summarizing her version of events, and the document was offered at trial when the victim did not appear. Davis, 547 U.S. at 820. The Court concluded that admission of such statements “are an obvious substitute for live testimony, because they do precisely what a witness does on direct examination; they are inherently testimonial.”9 Davis, 547 U.S. at 830.

¶21 Recently, the Court again addressed the reach of the confrontation clause in Melendez-Diaz, 129 S. Ct. 2527. There, the defendant was charged with distributing and trafficking in cocaine. To prove that the substance officers seized from him was in fact cocaine, the prosecutor submitted three “certificates of analysis” sworn to by laboratory analysts before a notary public.10 The certificates stated simply, “ ‘The substance was found to contain: Cocaine.’ ” Melendez-Diaz, 129 S. Ct. at 2531. A five-member majority of the Court concluded under a “rather straightforward” application of Crawford that the certificates were inadmissible. Melendez-Diaz, 129 S. Ct. at 2533. After determining the certificates were “quite plainly affidavits,” the Court *317held that they constituted “testimonial” statements because they were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’ ” Melendez-Diaz, 129 S. Ct. at 2532 (quoting Davis, 547 U.S. at 830). Moreover, the statements were “ ‘made under circumstances which would lead an objective witness reasonably to believe that the statement [s] would be available for use at a later trial.’ ”11- Melendez-Diaz, 129 S. Ct. at 2532 (internal quotation marks omitted) (quoting Crawford, 541 U.S. at 52). Consequently, the analysts were “witnesses” for confrontation clause purposes and Melendez-Diaz had the right to confront them. Melendez-Diaz, 129 S. Ct. at 2532. Because he was not given this opportunity, the evidence should not have been admitted. Melendez-Diaz, 129 S. Ct. at 2542. The Court concluded, “The Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits, and the admission of such evidence against Melendez-Diaz was error.” Melendez-Diaz, 129 S. Ct. at 2542.

¶22 The majority also discussed and rejected several counterarguments. First, it rejected the suggestion that laboratory analysts are not subject to the confrontation requirement because they are not “accusatory” or “conventional” witnesses. Melendez-Diaz, 129 S. Ct. at 2533-35. Second, it rejected the argument that forensic analysts should not have to testify live because their testimony would be the result of “ ‘neutral, scientific testing' ” that is not “ ‘prone to distortion or manipulation,’ ” and confrontation would be unlikely to affect their testimony. Melendez-Diaz, 129 S. Ct. at 2536. Third, it rejected the argument that forensic reports qualify for a business or public records *318exception to the confrontation requirement.12 Finally, it rejected the suggestion that the confrontation clause was satisfied because the defendant could have subpoenaed the analysts. Melendez-Diaz, 129 S. Ct. at 2540.

¶23 Four members of the Court dissented. They noted that producing a forensic test result often requires multiple people and one possible reading of the majority’s opinion would require each of them to testify live. Melendez-Diaz, 129 S. Ct. at 2544-45 (Kennedy, J., dissenting). While the majority did not respond directly to this point, it characterized the dissent’s concerns generally as an exaggerated “parade of horribles,” and it explicitly rejected the suggestion that the State would need to call every person involved in the chain of custody. Melendez-Diaz, 129 S. Ct. at 2542.

[W]e do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution’s case. . . . “[G]aps in the chain [of custody] normally go to the weight of the evidence rather than its admissibility.” It is up to the prosecution to decide what steps in the chain of custody are so crucial as to require evidence; but what testimony is introduced must (if the defendant objects) be introduced live.

Melendez-Diaz, 129 S. Ct. at 2532 n.1 (last alteration in original) (quoting United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988)).

¶24 We conclude that Melendez-Diaz is distinguishable from Lui’s case. In Melendez-Diaz, the disputed evidence consisted of sworn affidavits of laboratory analysts who were not made available for cross-examination.13 The Court emphasized that the certificates were used in lieu of *319live, in-court testimony. Melendez-Diaz, 129 S. Ct. at 2532. Here, in contrast, the autopsy and DNA reports were not offered in lieu of live testimony. Indeed, the reports themselves were not admitted into evidence at all. Rather, Dr. Harruff testified to his own opinions and conclusions about the cause and timing of Boussiacos’s death. And Pineda testified to her own analysis of the DNA testing data. The evidence against Lui was the experts’ opinions — not their underlying data — and the testimony that was introduced was introduced live. Moreover, in Melendez-Diaz, the disputed evidence was a “bare-bones statement” that the substance tested contained cocaine, and the defendant “did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” Melendez-Diaz, 129 S. Ct. at 2537. But here, both experts testified extensively about their own expertise and that of their employees, the protocols and procedures used in their respective offices, and the tests employed in Lui’s case. Lui had the opportunity to challenge their assertions in the “ ‘crucible of cross-examination.’ ” Melendez-Diaz, 129 S. Ct. at 2536 (quoting Crawford, 541 U.S. at 61-62). This situation is fundamentally different from Melendez-Diaz, where the State improperly used ex parte out-of-court affidavits to prove its case. Here, the very live testimony absent in Melendez-Diaz was present.

¶25 Lui argues that the presence of Dr. Harruff and Pineda as live witnesses still violated his right to confrontation because they relied on testimonial reports made by others and related information from those reports to the jury.14 In Lui’s view, Dr. Harruff and Pineda were simply *320acting as surrogates for the true witnesses against him, and his ability to cross-examine them was not a constitutionally adequate substitute for confrontation of their sources. We disagree.

¶26 Lui argues that it is possible for forensic analysts to fraudulently affect laboratory results undetected by their supervisors. He notes that such fraud could be revealed during cross-examination. But the same is true for people involved in the chain of custody, yet the Supreme Court expressly rejected the notion that such individuals must appear as part of the State’s case. Melendez-Diaz, 129 S. Ct. at 2532 n.1.

¶27 Lui also relies on the following language from Davis:

“[W]e do not think it conceivable that the protections of the Confrontation Clause can readily be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the declarant, instead of having the declarant sign a deposition.”

Appellant’s Reply Br. at 5 (quoting Davis, 547 U.S. at 826). But our review of the record shows that the expert witnesses here were not acting as mere conduits for the testimonial assertions of their employees.15 Dr. Harruff testified based on his own expertise in strangulation and his independent review of the autopsy photographs and other data recorded in the autopsy report. Similarly, Pineda *321testified based on her own interpretation of the machine-generated raw data. Both experts applied significant expertise to interpret and analyze the underlying data. And neither witness simply read to the jury from Dr. Raven’s and the DNA laboratory technicians’ reports.16 Indeed, Pineda deviated from her laboratory’s written report when it conflicted with her own opinion. This is not a case where the State produced expert witnesses simply to have them recite out-of-court statements made by others as a way to evade the protections of the confrontation clause. Consequently, Lui’s reliance on this passage from Davis is misplaced.17

f 28 While Lui is correct that the expert opinion testimony against him was partially based on the reports of others, expert witnesses are not required to have personal, firsthand knowledge of the evidence on which they rely. In re Disability Proceeding Against Keefe, 159 Wn.2d 822, 831, 154 P.3d 213 (2007). In Washington, ER 703 expressly allows experts to base their opinion testimony on facts or data that are not admissible in evidence “[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject . . . .” The Federal Rules of Evidence are in accord. See Fed. R. Evid. 703. And ER 705 gives the trial court discretion to permit an expert to relate hearsay or otherwise inadmissible evidence to the jury for the limited purpose of explaining the reasons for his or her opinion.18 Deep Water Brewing, LLC v. Fairway Res., Ltd., 152 Wn. App. 229, 215 P.3d 990 *322(2009); State v. Brown, 145 Wn. App. 62, 74, 184 P.3d 1284 (2008).

¶29 While Lui’s confrontation challenge presents a separate question than a challenge based on the rules of evidence, see Crawford, 541 U.S. at 51 (noting that evidence excluded under hearsay rules may be permitted under the confrontation clause, or vice versa), in this case the answer is the same. To the extent the experts here related testimonial hearsay statements to the jury, they did so to explain the bases for their opinions. This is permitted under both the rules of evidence and the confrontation clause.19 See Allen v. Asbestos Corp., 138 Wn. App. 564, 579, 157 P.3d 406 (2007) (“ER 703 permits experts to base their opinion testimony on facts or data that is not admissible in evidence .... The otherwise inadmissible facts or data underlying an expert’s opinion are admissible for the limited purpose of explaining the basis for an expert’s opinion . . . .”); Crawford, 541 U.S. at 59 n.9 (“The Clause also *323does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”). The experts’ testimony here is subject, as a matter of right, to an instruction limiting the purposes for which it was offered, but its admission did not violate Lui’s right to confrontation.20

¶30 And our conclusion is supported by similar cases decided since Melendez-Diaz that have adopted the same rationale. For example, in People v. Rutterschmidt, 176 Cal. App. 4th 1047, 98 Cal. Rptr. 3d 390, 409 (2009), the defendant argued that the expert testimony of a laboratory director regarding his laboratory’s toxicology results violated the confrontation clause because the director did not personally test the samples. The appeals court rejected this argument, stating, “There is no federal Supreme Court or California authority for the proposition that Crawford precludes a prosecution scientific expert from testifying as to an opinion in reliance upon another scientist’s report.” Rutter schmidt, 98 Cal. Rptr. 3d at 411. It distinguished Melendez-Diaz on the critical grounds that the report itself was not admitted in evidence, the toxicology results were not proved via an ex parte out-of-court affidavit, the expert relied upon the data in the report to formulate his opinions, and the expert’s opinion and its basis were subject to cross-examination. Rutter schmidt, 98 Cal. Rptr. 3d at 412. It further noted that experts are permitted to offer opinions based on inadmissible hearsay and to explain the reasons for their opinions. Rutter schmidt, 98 Cal. Rptr. 3d at 412-13. Finally, it reasoned that such testimony does not violate the confrontation clause because it is offered to explain the expert’s opinion, not for its truth. Rutterschmidt, 98 Cal. Rptr. 3d at 413.

*324¶31 And in People v. Johnson, 394 Ill. App. 3d 1027, 915 N.E.2d 845, 333 Ill. Dec. 774 (2009), the defendant challenged an expert’s testimony regarding DNA test results, arguing that he had no opportunity to cross-examine the analysts who conducted the testing. The court distinguished Melendez-Diaz, noting that “[i]n contrast with certificates presented at trial” there, the DNA expert in the case before it “testified in person as to [her] opinion [ ] based on the DNA testing and [was] subject to cross-examination.” Johnson, 915 N.E.2d at 854. The court noted that experts are permitted to disclose underlying facts and data to the jury in order to explain the basis for their opinions. Johnson, 915 N.E.2d at 850 (quoting People v. Williams, 385 Ill. App. 3d 359, 369, 895 N.E.2d 961, 324 Ill. Dec. 246 (2008)). It concluded that the DNA report at issue was offered as part of the basis for the expert opinion, so there was no confrontation violation. Johnson, 915 N.E.2d at 850.

f 32 Finally, in People v. Lovejoy, 235 Ill. 2d 97, 919 N.E.2d 843, 866, 335 Ill. Dec. 818 (2009), the defendant argued that the admission of a medical examiner’s testimony about toxicology test results violated his right to confrontation because the tests were performed by others. The Illinois Supreme Court rejected this contention. Lovejoy, 919 N.E.2d at 869. The medical examiner testified that he was trained in toxicology interpretation and that the toxicology report showed lethal amounts of several medications in the victim’s blood. Lovejoy, 919 N.E.2d at 867. He explained how this information provided insight into his own physical observations during the autopsy and that the combination helped him determine the cause of the victim’s death. Lovejoy, 919 N.E.2d at 869. The court concluded that the medical examiner’s testimony “was elicited to show the jury the steps [he] took prior to rendering an expert opinion in this case, and was not admitted to prove the truth of the underlying assertion.” Lovejoy, 919 N.E.2d at 869. Consequently, Melendez-Diaz was not implicated and there was no confrontation clause violation. Lovejoy, 919 N.E.2d at 870.

*325¶33 We agree with these well-reasoned cases.21 Here, Dr. Harruff and Pineda testified as expert witnesses against Lui. Though their opinions were based partially on forensic work performed by others, the record shows that their opinions and conclusions were independently derived from their significant expertise and analysis that they applied to the forensic work of others. They did not base their opinions solely on testimonial hearsay and merely recount what others who performed forensic work said. And to the extent they disclosed information provided by others to the jury, that information was offered to explain the basis for their opinions as provided for under the Rules of Evidence.

¶34 Finally, our review of the record shows that Lui had full opportunity to test the basis and reliability of the experts’ opinions and conclusions “in the crucible of cross-examination.” Crawford, 541 U.S. at 61. Under these circumstances, we hold that Lui’s confrontation rights were not violated.

¶35 Affirmed.

Becker and Leach, JJ., concur.

Review granted at 168 Wn.2d 1018 (2010).

State v. Lui
153 Wash. App. 304

Case Details

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State v. Lui
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Nov 23, 2009
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