Carolina Criminal Defense & DUI Lawyer UpdatesSubstitute expert testimony in North Carolina criminal cases continues to develop, as evidence in the May 2026 Court of Appeals decision in State v. Phillips. A substitute expert may testify when the opinion comes from evidence the expert can independently review, such as photographs of visible injuries. The Confrontation Clause problem may be subject to review when the Rule 702 opinion depends on the truth of what an absent examiner recorded, measured, observed, charted, tested, or concluded.
That distinction matters in criminal defense because expert testimony can sound scientific even when it rests on human assumptions that were never tested in court. A jury may hear the word “independent” and assume the witness did the work. Phillips reminds lawyers, judges, and anyone facing criminal charges that the real question is not whether the witness has credentials. The real question may involve what the opinion is based on.
TL;DR | Substitute Expert Testimony
State v. Phillips is a photographs-versus-human-assertions case.
A photograph can be reviewed by a qualified expert. The jury can see the image. The expert can explain what appears in the image. Cross-examination can challenge lighting, angle, quality, interpretation, context, and whether the image proves what the State says it proves.
That is different from expert testimony built on an absent examiner’s recorded statements.
If the testifying expert needs the jury to accept that the absent examiner accurately observed an injury, accurately measured it, accurately recorded a symptom, accurately followed a protocol, or accurately reached a conclusion, the expert no longer relies solely on independently reviewable evidence.
The absent examiner’s work may be problematic, as set forth in Smith v. Arizona. Smith rejected the idea that the State can avoid the Confrontation Clause by calling out-of-court statements basis evidence for an expert opinion. If the expert’s opinion works only because the absent witness’s statements are true, those statements are being used for their truth.
Phillips does not undo Smith. Phillips applies the same distinction in a North Carolina assault and strangulation case involving a forensic nursing examination.
| Source of the Expert Opinion | Confrontation Clause Concern |
|---|---|
| Photographs of visible injuries | Lower concern when the expert forms an opinion from what appears in the images. |
| Video evidence | Lower concern when the jury and expert can review the same recording. |
| Raw machine output | Lower concern when the output contains no human interpretation. |
| Body maps | Fact-dependent concern because a body map may show visible injury, recorded observations, or both. |
| Measurements | Higher concern when the testifying expert did not take or independently verify the measurement. |
| Charting | Higher concern when chart entries are offered to prove what the absent examiner observed. |
| Patient statements in a forensic exam | Fact-dependent concern because statements may be medical, investigative, or both. |
| Absent examiner’s conclusion | High concern when the substitute expert repeats another professional’s judgment. |
| Protocol compliance statements | Higher concern when the substitute expert asks the jury to trust that someone else followed required steps. |
Substitute Expert Testimony Turns on the Material Reviewed
Substitute expert testimony is not one evidentiary category. The Court (the Judge) identifies what the testifying expert reviewed and what the opinion depends on. Photographs, body maps, medical records, patient statements, chart entries, measurements, protocol notes, and another examiner’s conclusions present different evidentiary and constitutional questions.
Phillips involved a forensic nurse examiner who did not testify at trial. The State called the nurse’s supervisor instead. The supervisor testified that she reviewed the original nurse’s report, charting, photographs, and other documentation, and then formed her own conclusions. The defense objected because the supervisor did not examine the alleged victim and because the record was unclear about whether the opinion came from independent review or from the absent nurse’s observations.
The Court of Appeals focused on the photographs. It treated photographs as mechanically captured evidence that another qualified expert can review without accepting an absent examiner’s statement as true. That distinction drove the ruling. On the record before the court, the substitute expert appeared to give an opinion based on what she could see in the images, not merely repeat what the absent nurse wrote in the report.
That is the limit of Phillips. The opinion does not approve surrogate medical testimony across the board. It does not say a supervisor may repeat an absent nurse’s charting, measurements, patient statements, or forensic conclusions merely by calling the opinion independent. It says that, on this record, the Confrontation Clause was not violated because the expert’s opinion appeared to rest on photographs that could be reviewed independently.
The missing appellate record also mattered. The original SANE report and the substitute expert’s written opinion were not included on appeal. Without those materials, the Court of Appeals could not determine whether the substitute expert relied on testimonial statements by the absent nurse. That gap shaped the outcome. Phillips is therefore a record-driven decision as much as it is an expert testimony decision.
The trial lesson is direct. Before the court admits substitute expert testimony, it should separate the source materials. Photographs are different from chart notes. Chart notes are different from measurements. Measurements are different from patient statements. Patient statements are different from the absent examiner’s conclusions. The Confrontation Clause analysis depends on that separation.
Photographs vs Absent Examiner’s Notes
A photograph is not a nurse’s statement. It does not report neck tenderness. It does not describe loss of consciousness. It does not record the size of a bruise. It does not announce that the findings are consistent with strangulation. It captures an image.
That difference matters in a Confrontation Clause analysis. A photograph can be challenged. It may be incomplete, poorly lit, taken from an unhelpful angle, or missing context. The testifying expert can still be cross-examined about what the image shows, what it does not show, and whether the opinion fairly follows from the image itself.
That is the distinction Phillips rests on. The substitute expert reviewed photographs and offered an opinion based on what she could see. The Court of Appeals treated that type of evidence as mechanically captured material, not as an out-of-court assertion by the absent nurse. The human assertion came later, when the testifying expert interpreted the images in court.
Ball helps explain why the photograph issue matters. In State v. Ball, the Court of Appeals allowed Nurse Maillet to testify after she reviewed a SANE report and the photographs taken during the examination. The Court treated her testimony as an independent opinion because she reviewed the images, identified visible injuries, and explained her own interpretation rather than merely repeating the absent nurse’s conclusion.
- State v. Ball, 292 N.C. App. 151 (2024), filed 16 January 2024, opinion by Judge Wood, with Judges Tyson and Collins concurring. Phillips cites it correctly.
- The same Nurse Maillet testified in both cases as forensic nursing supervisor at Mission Hospital. Phillips even drops a footnote pointing this out.
- The reasoning is essentially identical. Nurse Maillet reviewed the absent SANE nurse’s report, confirmed protocol compliance, then offered her own opinion based on the photographs showing injuries consistent with assault. The court held this was an independently reasoned opinion, not surrogate testimony parroting the absent analyst.
- Ball relied on State v. Ortiz-Zape, 367 N.C. 1 (2013), and State v. Crumitie, 266 N.C. App. 373 (2019), for the two-part rule (information reasonably relied on by experts in the field + independent review and conclusion). Those are the older precedential anchors behind both Ball and Phillips.
Two timing points bear consideration:
- Ball pre-dates Smith v. Arizona. Ball was filed 16 January 2024. Smith came down 21 June 2024. So Ball reached its result without a Smith analysis. That matters because anyone arguing Ball remains good law has to confront the fact that Ball never grappled with Smith’s holding that an absent analyst’s statements offered “in support of” an opinion are offered for their truth. Phillips is the first North Carolina appellate decision to take Ball’s photograph reasoning and explicitly apply it after Smith, which is part of why Phillips matters even though it largely just follows Ball.
- Different procedural postures. Ball was reviewed for plain error because the defendant didn’t object at trial. Defense counsel let the SANE report in without objection and didn’t object to Nurse Maillet’s testimony. Phillips was reviewed de novo because counsel did object, repeatedly, including on voir dire. The Phillips court reached the same result anyway, which is actually the stronger holding for the State because it survived a fully preserved Confrontation Clause challenge under heightened review. If the article frames Phillips as the more important precedent on this question post-Smith, that’s defensible. Phillips is preserved-error review, post-Smith, with Ball cited as supporting authority.
Ball goes further than Phillips on the report-admission question. In Ball, the SANE exam report itself “was admitted into evidence at trial, without objection,” and the court still found no plain error. In Phillips, the report was admitted as the State’s Exhibit 10 over objection, but neither the report nor Nurse Maillet’s written opinion was included in the appellate record. The practical point is to object, get the report and the testifying expert’s written opinion into the appellate record, and preserve a much stronger Smith-based argument than either Ball or Phillips actually decided.
That reasoning supports the photograph side of the analysis, but it does not end the Confrontation Clause question after Smith v. Arizona. Ball was decided before Smith. After Smith, the Court still must ask whether the substitute expert’s opinion depends on accepting an absent examiner’s statements as true.
The analysis changes when the State moves from image interpretation to recorded assertions. Notes, chart entries, measurements, patient statements, protocol entries, and forensic conclusions may require the jury to accept the absent examiner’s work as true. When the opinion depends on those absent-witness assertions, the substitute expert is no longer just interpreting evidence. The expert is carrying the absent examiner’s testimony into the courtroom. That is the Confrontation Clause problem Smith v. Arizona addressed.
The Core Analysis in Substitute Expert Testimony Cases
The courtroom question after Phillips is direct, but it requires precision.
Can the testifying expert explain the opinion without asking the jury to accept the absent examiner’s statements as true?
If the answer is yes, Phillips gives the State room to offer the testimony. If the answer is no, Smith v. Arizona requires a Confrontation Clause analysis.
That question matters across criminal trial practice. It applies in assault cases, impaired driving cases, drug cases, forensic testing cases, medical evidence cases, and cases involving lab work. It also applies when the evidence includes body-worn camera footage, photographs, digital extraction reports, hospital records, toxicology reports, drug chemistry reports, DNA reports, or SANE examinations.
The form of the evidence may change. The constitutional question does not. The State may call a qualified expert to offer an independent opinion. The State may not use that witness as a delivery system for testimonial hearsay from someone who is not in court and has not been subject to cross-examination.
Rule 703 Does Not Answer the Constitutional Question
N.C.G.S. 8C-1, Rule 703 allows an expert to rely on facts or data that experts in the field reasonably rely upon. That is a Rule of Evidence in North Carolina. It does not decide the constitutional issue.
The State may argue that forensic nurses, chemists, toxicologists, or other professionals rely on reports prepared by others. That may be true in professional practice. But courtroom testimony is different. A criminal trial is not a staff meeting, peer review conference, hospital handoff, or lab consultation.
The Confrontation Clause asks whether testimonial hearsay is being used against the accused without cross-examination. If the expert’s opinion has value only because the absent examiner’s statements are true, the statements are not harmless background. They are part of the proof.
That is why Smith v. Arizona matters. The Supreme Court rejected the idea that a prosecutor can avoid confrontation by saying the absent analyst’s statements explain the basis of the testifying expert’s opinion. When truth is doing the work, the Constitution applies.
Can a Substitute Expert Testify After Smith v. Arizona?
A substitute expert may testify after Smith v. Arizona, but Phillips is not a shortcut around the Confrontation Clause. The better reading is narrower. Phillips applies Smith to a record where the substitute expert’s opinion appeared to rest on photographs, not on the absent examiner’s testimonial statements.
The State’s argument is strongest when the expert can point to an image, explain what the image shows, describe the reasoning process, and defend that opinion through cross-examination. That is different from testimony that depends on the absent examiner’s notes, recorded symptoms, chart entries, measurements, protocol statements, or professional conclusions.
The difference is not procedural housekeeping. It goes to the structure of a criminal trial.
The defendant has the right to confront the witnesses against him. When the absent examiner’s work supplies the factual foundation for the opinion, the substitute expert may not cure the constitutional problem. The witness on the stand must do more than read another professional’s file. The witness must offer an opinion that can be tested through cross-examination without requiring the jury to accept the absent examiner’s statements as true.
Rule 701 | Vouching Testimony
Phillips also addresses Rule 701 and improper vouching testimony. The lead detective testified that he believed the alleged victim’s account. That kind of testimony creates a problem because credibility belongs to the jury. A law enforcement officer may explain investigative steps, observations, and decisions. The officer may not tell jurors which witness is telling the truth.
The Court of Appeals does not create a broad rule allowing officers to vouch for a complaining witness. The ruling depends on plain error review and the way defense cross-examination developed. Defense counsel questioned the detective about whether the alleged victim’s account made sense and whether her inconsistent statements raised concerns about truthfulness. Once the defense opened that door, the appellate court treated the State’s redirect as a response to the credibility issue the defense had placed before the jury.
That part of Phillips should be read narrowly. It does not give the State permission to ask an officer on direct examination, “Do you believe her?” It shows that credibility cross-examination can change what the State may ask on redirect. A question designed to expose investigative bias may also give the State a path to rehabilitate the witness through testimony that would have drawn a stronger objection if offered first.
The trial lesson is practical. Before asking an officer whether a witness seemed truthful, defense counsel should decide whether the answer helps more than the follow-up hurts. Phillips does not make vouching testimony safe. It shows how a credibility attack can open the door to testimony the defense did not want the jury to hear.
FAQs About Substitute Expert Testimony in North Carolina
Substitute expert testimony refers to testimony from an expert who did not perform the original examination, testing, measurement, or analysis, but who reviews another professional’s work and offers an opinion in court. In criminal cases, the Confrontation Clause issue depends on whether the expert gives an independent opinion from reviewable evidence or repeats the absent examiner’s statements, findings, or conclusions. What is substitute expert testimony?
Substitute expert testimony may be allowed in North Carolina when the expert is qualified, reviews evidence that experts in the field may reasonably rely upon, and offers an opinion that can be tested through cross-examination. The testimony is on stronger ground when the expert forms an opinion from photographs, video, raw data, or other evidence the expert can independently review. The problem arises when the expert’s opinion depends on accepting an absent examiner’s statements, observations, measurements, charting, or conclusions as true. In that situation, the issue is not just expert qualification. The court must decide whether the State is using the substitute expert to present testimonial hearsay from a witness who is not in court. When is substitute expert testimony allowed in North Carolina?
The Confrontation Clause is part of the Sixth Amendment. It gives a defendant in a criminal case the right to confront and cross-examine the witnesses the State uses to prove guilt. In substitute expert testimony cases, the issue is whether the expert on the stand is giving an independent opinion or delivering statements from an absent witness. If the opinion depends on testimonial statements by an examiner who does not appear in court, the jury may be hearing proof from someone the defense cannot cross-examine. That is the constitutional problem. What is the Confrontation Clause?
A medical or forensic report does not become admissible just because a substitute expert reviewed it. The court must examine what part of the report the expert uses and why it matters to the opinion. A report may contain photographs, test results, chart entries, measurements, patient statements, examiner observations, and professional conclusions. Those categories do not raise the same legal issue. A substitute expert may be able to form an opinion from photographs, video, raw data, or other material the expert can independently review. The concern increases when the testimony depends on what an absent examiner wrote, measured, observed, or concluded. The question is not simply whether experts rely on reports in their field. The question is whether the State is using the substitute expert to place out-of-court statements before the jury for their truth. If the report supplies the factual proof and the original examiner does not testify, the Court addresses hearsay and the Confrontation Clause before allowing the testimony. Is a medical or forensic report admissible through a substitute expert?
Police officers may explain what they observed, what they heard, and how those facts shaped the investigation. They do not decide credibility for the jury. Testimony that an officer believes the alleged victim, thinks a witness told the truth, or accepts one version of events over another risks improper vouching because it tells jurors how to answer a question reserved for them. Can police officers testify that they believe the alleged victim?
Substitute Expert Testimony in a North Carolina Criminal Case
Substitute expert testimony can affect what the jury hears in a North Carolina criminal case. The issue is not simply whether the witness has training, credentials, or experience. The issue is whether the opinion comes from evidence the testifying expert can independently review, or from statements made by someone who never comes to court.
That distinction matters in cases involving assault by strangulation, impaired driving, drug analysis, blood testing, toxicology, medical injury opinions, forensic examinations, SANE reports, and other scientific or technical evidence. A case may not turn on whether an expert is qualified. It may turn on whether the State is asking the jury to rely on photographs, measurements, chart notes, lab reports, medical records, or an absent examiner’s conclusions.
Powers Law Firm represents clients in criminal cases throughout the Charlotte metro region, including Mecklenburg, Union, Iredell, Gaston, Lincoln, and Rowan Counties. Bill Powers and Powers Law Firm also provide statewide consultation in select serious vehicle cases, including Misdemeanor Death by Vehicle, Felony Death by Vehicle, and Felony Serious Injury by Vehicle.
If your case involves expert testimony, forensic testing, medical records, injury photographs, lab reports, or a witness who did not perform the original work, call Powers Law Firm at 704-342-4357.