In the upcoming months, SCOTUS will be deciding whether the Confrontation Clause is violated when a profile of DNA is developed from semen left on a victim by a non-testifying analyst is then used by a testifying analyst who offers the opinion that there is a 'match' with the defendant. This case is known as Williams v. Illinois.
In Derr v. State of Maryland, --- A.3d ----, 2011 WL 4483937 (Md.), the same factual issue occurred. A person was sexually assaulted in 1985 and swabs were obtained, which contained semen. Seventeen years later, in 2002, a detective reviewed the case and submitted the PERK to the FBI crime lab for forensic analysis. Dr. Maribeth Donovan, an FBI DNA analyst, performed the DNA analysis of the biological evidence. A DNA profile of the suspect, consisting of thirteen genetic markers, was generated from the DNA on the vaginal swabs. This profile was entered into a national database containing 2.5 million DNA profiles, referred to as the Combined DNA Identification System (CODIS). Dr. Donovan did not testify at trial.
In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 by Dr. Donovan. The State then obtained a search warrant to seize additional DNA from Derr, in order to create a new “reference DNA sample” and to verify that Derr's profile in CODIS was accurate. The testing of the new sample was performed by an unnamed team of biologists (who also did not testify at trial) and supervised by Dr. Jennifer Luttman, a DNA analyst with the FBI, in 2004. Upon interpretation of the biologists' results, Dr. Luttman determined that the reference sample matched Derr's profile in CODIS and so testified. Dr. Luttman was not, however, involved with the 1985 serological testing or the 2002 DNA testing of the PERK that resulted in the DNA profile of the alleged assailant. Further, Dr. Luttman did not perform the actual DNA testing in 2004, but rather merely “supervised” or reviewed her team's analysis, with no indication that she observed the “bench work” FN5 at the time it was performed by her team.
The appeals court stated as follows:
"In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause."
In concluding that the Confrontation Clause was violated, the court stated:
"When reviewing a case under the Confrontation Clause, the following principle must be followed: a testimonial statement may not be introduced into evidence, through admission or testimony, without the in-court testimony of the declarant. A court must first identify what statements are being offered as evidence in a criminal trial. Then, a court must determine whether the statements are testimonial in nature. Unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination, when “an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial,” and its admission invokes the Confrontation Clause. Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713, 180 L.Ed.2d at 619. This is because “the prosecution may not introduce such [evidence] without offering a live witness competent to testify to the truth of the statements made in the report.” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2709, 180 L.Ed.2d at 615. In the case of DNA testing, the DNA profile is a statement of the analyst that essentially says: “This is the DNA profile for this person.” If the DNA profile is inputted into CODIS and a match is obtained, then that match is derived from the statement of the analyst. In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness. See Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2713–17, 180 L.Ed.2d at 619–24.
"We reach this conclusion for several reasons. First, the DNA profile and report are made for the primary purpose of establishing facts relevant to a later prosecution, and an objective analyst would understand that the statements will be used in a later trial. Stated differently, the analyst who generated the report must have known that the purpose of the testing was ultimately to establish the perpetrator's identity through DNA evidence. Second, the testing results, and the resulting DNA profile, can be considered an affidavit because they are the functional equivalent of in-court testimony, offered to establish prima facie evidence of guilt, which constitutes formalized testimonial material. Third, the statements produced by DNA testing are testimony under Crawford because the statements are solemn declarations made to prove a fact, namely the identification of the sample and possible match. Finally, the analyst who performs the DNA analysis is a witness for the purpose of the Confrontation Clause because the DNA profile created is a representation “relating to past events and human actions not revealed in raw, machine-produced data[.]” Bullcoming, ––– U.S. at –––, 131 S.Ct. at 2714, 180 L.Ed.2d at 621. Therefore, the DNA profiles created by lab analysts, the reports they produce, and the conclusions or opinions they form contain testimonial statements that are subject to the requirements of the Confrontation Clause.FN12"
The court also discussed the claim that Rule 703 (the same as FRE 703) should allow such evidence to be admitted:
"In evaluating a Confrontation Clause claim of this sort, involving surrogate testimony and scientific testing, we must address the continued validity and application of Md. Rule 5–703. We shall hold that, because of the Confrontation Clause, an expert may not render as true the testimonial statements or opinions of others through his or her testimony. Although the Rule allows for an expert to base his or her opinion on inadmissible evidence, to the extent that Md. Rule 5–703 offends the Confrontation Clause, such testimony will not be admissible. As the United States Supreme Court stated in Crawford, “[w]here testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’ “ Crawford, 541 U.S. at 61, 124 S.Ct. at 1370, 158 L.Ed.2d at 199. Specifically, if the inadmissible evidence sought to be introduced is comprised of the conclusions of other analysts, then the Confrontation Clause prohibits the admission of such testimonial statements through the testimony of an expert who did not observe or participate in the testing. Conversely, if the evidence relied upon by an expert in his or her testimony assembles nontestimonial information from one or more sources, and then draws a conclusion based on that information, then the expert is not merely serving as a surrogate to convey the conclusions of other analysts, but rather, is forming and testifying as to the expert's own independent opinion. In such a case, Md. Rule 5–703, as applied, would not appear to offend the Confrontation Clause.
Thus, the defendant's judgment was reversed.
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