Silent Witness - Volume 10, Number 1, 2006

Admissibility of DNA Evidence: Applying Crawford v. Washington

by Sarah A. Chapman1

No facet of criminal jurisprudence has yet to avoid the inevitable confusion created by the 2004 Supreme Court decision in Crawford v. Washington2.

The Supreme Court’s decision set forth a new standard for the admissibility of testimonial hearsay evidence. Unfortunately, the Court never really defined “testimonial.” This article explores the different interpretations of the testimonial standard being applied by the courts as it relates to the admissibility of forensic DNA evidence.

Crawford Changed the Landscape

In Crawford, the defendant was accused of stabbing another man who allegedly attempted to rape the defendant’s wife3. Although the state’s marital privilege was invoked and the defendant’s wife did not testify at trial, her tape recorded statement to the police was admitted into evidence at trial under the state’s hearsay exception for “statements against penal interest.”4 The Supreme Court held that admission of the statement, which was held to be testimonial in nature, violated the defendant’s federal constitutional right to be confronted with witnesses against him.

Prior to the Crawford decision, admissibility of hearsay largely rested upon the facts of a particular case. Hearsay evidence was held admissible if it met one of the firmly rooted traditional exceptions and/or the court found the statement(s) to be reliable and trustworthy in the circumstances in which they were made.5 This analysis permitted court discretion when determining admissibility.

Crawford changed the landscape. Discretion is removed from the courts when proffered hearsay statements are determined to be “testimonial” in nature. Drawing on the historical purpose behind the Confrontation Clause, the Court emphasized that governmental involvement in the production of a statement or testimony in anticipation of litigation posed the potential risk of prosecutorial abuse.6 Consequently, where testimonial statements are at issue, the Supreme Court has ruled, the only criterion of their reliability to satisfy constitutional demands is confrontation. The Court reasoned, absent confrontation, the Sixth Amendment requires unavailability and a prior opportunity for cross-examination for testimonial hearsay to be admissible.7

Crawford has presented more questions than answers for prosecutors across the nation, and has in some cases hindered their ability to present various forms of evidence that had been routinely admitted prior to the Crawford decision.

On March 20, 2006, the United States Supreme Court heard oral argument involving the application of the Crawford testimonial standard in two domestic violence cases. The arguments focused on the admissibility of a recorded emergency 911 phone call where the victim/caller was absent for trial and the admissibility of excited utterances from a non-testifying domestic violence victim. The six appellate attorneys grappled with what they understood the Supreme Court’s “testimonial evidence” standard to mean. What followed were a series of hypothetical situations presented by the Justices that did not set or explain the parameters of the Supreme Court’s testimonial standard.8

While awaiting guidance from the Supreme Court, the application of the Crawford decision in the expanding world of forensic DNA evidence is being litigated with a variety of outcomes.

The Expert Witness Quandary

DNA typing, as with most scientific tests (such as fingerprints, ballistics, drug analysis, toxicology) often involves more than one expert in the testing process. For example, one analyst may examine the evidence, take cuttings or swabs and conduct presumptive testing, while a different analyst may perform the remainder of the testing. In addition, for quality assurance and accuracy, a second expert is generally required to conduct a “technical review” of the data generated by the analyst who performed the “hands-on” lab work.

DNA typing may also be conducted by several different laboratories. Smaller jurisdictions with limited lab capacity or extremely large jurisdictions with heavy caseloads are outsourcing DNA testing to other laboratories. Different types of DNA typing technologies (i.e., mitochondrial DNA, YSTR testing, plant/animal DNA) may also require sending the materials to several laboratories.

Prior to the Crawford decision, the DNA analyst who physically conducted the DNA testing process was not required to testify; rather analysts who supervised, observed or conducted a technical review of the data were permitted to provide expert testimony regarding the DNA typing results. The courts recognized that an expert was permitted to testify where he or she supervised the testing conducted by the bench analyst or where the testifying expert’s opinion was based upon sources of information reasonably relied upon by experts in the field of DNA typing. Such reasonably relied upon information could include the laboratory case file, which may include bench notes and computerized data documenting the analysis process as well as a report summarizing the DNA results.9

Today, the courts are examining who is required to testify and what otherwise inadmissible sources (testimonial or non-testimonial) an expert could rely upon when forming an opinion in light of Crawford.

In some jurisdictions, courts have held Crawford inapplicable where one expert testified about the results of analysis conducted by another, on the grounds that an expert is entitled to rely on such materials for the purpose of forming his or her opinion.10 It is the expert’s opinion itself, not the underlying factual basis, which constitutes substantive evidence.11 Therefore, an expert may properly base his or her opinion on tests performed by another person, if the tests are of the type reasonably relied upon by experts in the field without violating Crawford.12 Despite the confusion raised by Crawford, it still remains that expert witness testimony is not confined to direct knowledge; rather, an expert’s opinion can be based upon other reasonably relied upon sources.13

Courts have recognized that inherently reliable information is admissible to show the basis for an expert's opinion, even if the information would otherwise be inadmissible hearsay. For instance, in the case of State v. Watts,14 the DNA analyst who conducted the actual lab work in a statutory rape case was unavailable at the time of trial. As a result, a supervisor reviewed the lab work and was permitted to provide expert opinion testimony at trial. The appellate court found that the witness’s use of the results of a DNA analysis conducted by a colleague to form the basis of his expert opinion did not violate the defendant’s right of confrontation.15 Similarly, in People v. Felix16, the court held Crawford was inapplicable where a witness was permitted to provide expert opinion testimony about the results of DNA tests conducted by another person. Specifically, the court held that “Crawford does not undermine the established rule that experts can testify to their opinions on relevant matters, and relate the information and sources upon which they rely in forming those opinions. This is so because an expert is subject to cross examination about his or her opinions and additionally, the materials on which the expert bases his or her opinion are not elicited for the truth of their contents, they are examined to assess the weight of the expert’s opinion.”17 Similar rulings have occurred in relation to autopsy findings18 and drug analysis19.

Other courts have reached an entirely different result, holding that under Crawford, only the person who performed the actual testing can offer expert testimony, and that person is also required for admissibility of the laboratory reports.20 In cases involving various forms of scientific testing (i.e., drug analysis21, breath tests22, and toxicology/blood tests23), courts have found that the laboratory reports are testimonial hearsay and are only properly admitted through the testimony of the person who performed the analysis. This has also been true for cases involving DNA testing. For example, in the case of State v. Crager24, which involved the brutal murder of an elderly woman, the analyst that performed the hands on lab work was unavailable at the time of trial. The laboratory report was admitted at trial as a business record and a supervisor who conducted a technical review of the lab work, provided expert opinion testimony as to the DNA evidence that linked the defendent to the crime.25

The state appellate court reversed the murder conviction finding that the defendant’s right to confrontation was violated pursuant to Crawford. The court held that the DNA report was improperly admitted as a business record. The laboratory report was held to be “testimonial” on the grounds that it was prepared as part of a police investigation and that a reasonable person could conclude that the report would later be used at trial.26 The court further held that permitting testimony from the expert, who did not perform the analysis but did perform a technical review of the case file, violated the Confrontation Clause because the analyst did not have personal/direct knowledge of the actual DNA testing process in the case.27 The courts holding that the laboratory reports in the Crager case were “testimonial” is currently under review by the Ohio Supreme Court.28

These cases appear to deviate from the established precedent that permitted an expert’s opinion to be based upon other reasonably relied upon sources.29 However, due to the testimonial guidelines set forth in Crawford, tests, records and reports found to have been prepared for prosecution likely will be deemed “testimonial” in spite of their business record nature.

Laboratory Reports: Business Records or Testimonial?

Jurisdictions vary as to the “testimonial” nature of DNA laboratory reports. Some courts have found laboratory case reports are admissible as business records, thereby obviating the need for the expert who performed the DNA testing to be present for authentication and admission of such materials30, while other courts have rejected the application of the business records exception and have admitted the materials under a different theory.

Laboratory reports have been held by courts to be routine documentary evidence, not as a functional equivalent or a substitution for live testimony.31 Courts have recognized that the preparer of the document serves merely to authenticate the lab report and other documentary materials. As such, the demeanor of such witness is not a significant factor relating to admissibility nor is it relevant to determining the credibility of the report.32 This is consistent with the underlying premise that a testifying expert who did not perform the lab work is testifying to his or her independent conclusions based upon sources of information (raw data, bench notes, worksheets, laboratory report) that are reasonably relied upon by experts in the field of DNA typing.

The case of People v. Brown33 involved an unsolved sexual assault and kidnapping of a young girl in New York City that occurred in 1993. New York City had a backlog of approximately 16,000 unexamined sexual assault kits until 2000, when the Office of Chief Medical Examiner (OCME) “outsourced” some of these unexamined rape kits to a private laboratory for testing. In 2002, the private laboratory conducted DNA typing on the evidence contained in the 1993 rape kit and issued a report to OCME. In 2004, OCME conducted DNA typing on an oral swab received from the defendant, which matched the DNA profile typed in the 1993 rape kit. The OCME expert called at trial did not personally perform the DNA testing on either sample. Rather, she testified that she supervised and reviewed the records of the DNA typing performed on the defendant’s saliva at the OCME and reviewed the DNA profile taken from the rape kit at the private lab.

The court held that the DNA test results from the private lab and OCME were properly allowed into evidence as business records and that the admission of those records did not violate the defendant’s right to confrontation under Crawford.34 The notes and records of the laboratory technicians who conducted the DNA testing were not made for investigative or prosecutorial purposes.35 Rather, the court held, the reports were made for the routine purpose of ensuring the accuracy of the testing done in the laboratory and as a foundation for formulating the DNA profile.36

When the expert testified in People v. Brown regarding the report generated by the private laboratory, she explained that although another analyst generated a report containing raw data, any conclusions or opinions reached by her from those data, such as the DNA profile, were her own and were not contained in any of the reports.37

Other courts have rejected the application of the business records exception to DNA laboratory reports, but allowed them in evidence under a different theory. In the case of State v. Lewis,38 the court permitted a supervisor to provide expert testimony as to the bench work performed by the DNA technician. The court held that the expert was justified in her reliance on the laboratory reports to form her opinion because they “contained particularized guaranties of trustworthiness to keep them from violating the defendant’s rights under the Confrontation Clause.39” However, the court did not apply the business records exception as the grounds for admissibility of the lab reports. The court opined, “business records are ordinarily deemed reliable because they are prepared for other uses and are only incidentally prepared for the purposes of litigation, while the DNA analysis prepared was for no other purpose but litigation.”40

Conclusion

Courts across the nation continue to examine who is required to testify and what otherwise inadmissible sources (testimonial or non-testimonial) an expert can rely upon when forming an opinion in light of Crawford. Litigation involving the application of Crawford to DNA and other expanding forensic fields pose more questions than answers. For instance, who, if anyone would be permitted to testify in a cold case where the analyst who conducted the bench work was deceased? What about cases in which multiple laboratories were utilized due to increased caseloads, expanding databases and outsourcing?41

The current confusion was foreseen two years ago by Chief Justice Rehnquist and Justice O’Connor in their dissent to the Crawford opinion. “[T]he thousands of federal prosecutors and tens of thousands of state prosecutors need answers as to what beyond the specific kinds of ‘testimony’ the Court lists, is covered by the new rule. Rules of criminal evidence are applied every day in courts throughout the country, and parties should not be left in the dark in this manner.”42 Let’s hope the United States Supreme Court provides greater guidance on the issue of testimonial evidence in the very near future.

Endnotes

1 Sarah A. Chapman is a Senior Attorney with the American Prosecutor’s Research Institute’s DNA Forensics Program.

2 Crawford v. Washington, 541 U.S. 36, 15 L.Ed. 2nd 177, 124 S.Ct. 1354 (2004).

3 Id at 38.

4 Id at 38, 40.

5 Ohio v. Roberts, 448 U.S. 56, 65-66 (1980) [admissibility of all hearsay evidence rested on whether it falls within a “firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.”]

6 Crawford v. Washington, 541 U.S. 36, 158 L.Ed. 2nd 177, 124 S.Ct. 1354 (2004).

7 Id.

8 Davis v. Washington (Docket No. 05-5524); Hammon v. Indiana (Docket No. 05-5705) argued March 20, 2006.

9 See, Gray v. State, 728 So.2d 36 (Miss. 1998); Goff v. State, 953 S.W.2d 38 (Ark. 1997); State v. Daughtry, 340 N.C. 488, 511, 459 S.E.2d 747, 758 (1995), cert. denied, 516 U.S. 1079, 133 L. Ed. 2d 739, 116 S. Ct. 789 (1996).

10 State v. Walker, 170 N.C.App. 632, 613 S.E.2d 330, 330 (2005); State v. Edwards, 620 S.E. 2d 320, (N.C. Ct. App., Oct. 18, 2005).

11 State v. Wisconsin, 2006 WI 18; 709 N.W.2d 93 (WI Ct. App 2005) [emphasized the distinction between an expert who forms an opinion based in part on the work of others and an expert who merely summarizes the works of others, finding a defendant’s confrontation right is satisfied if a qualified expert testifies as to his or her independent opinion, even if the opinion is based in part on the work of another].

12 State v. Fair, 354 N.C. 131, 162, 557 S.E.2d 500, 522 (2001) cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162, 122 S. Ct. 2332 (2002); State v. Bertha, 617 S.E.2d 687 (NC Ct. App. 2005); State v. Rogers, 615 S.E.2d 435 (NC Ct. App. 2005).

13 United States v. Springer, 2006 U.S. App. LEXIS 1131 No. 05-12424 (United States Court of Appeals for the Eleventh Circuit, 2006 U.S. App. LEXIS 1131 January 18, 2006); Daubert v. Merrell Dow Pharms., 509 U.S. 579, 113 S. Ct. 2786; 125 L.E.2d 469 (1993); State v. Lewis, 2006 Tenn. Crim. App. LEXIS 237 (March 15, 2006, filed); Fed. R. Evid 703 [provides that when an expert relies on otherwise inadmissible evidence, his opinion is still admissible so long as the inadmissible facts or data are of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject].

14 State v. Watts, 616 S.E.2d 290 (N.C. Ct. App. 2005).

15 Id. at 297; See, State v. Edwards 620 S.E.2d 320 (N.C. Ct. App. 2005).

16 People v. Felix, 2006 Cal. App. Unpub. Lexis 1647 (Cal. Ct. App. 2006).

17 Id.

18 Rollins v. State, 161 Md. App. 34, 866 A.2d 926 (Md Ct Spec App 2005).

19 See, State v. Delaney, 613 S.E. 699 (N.C. Ct. App. 2005).

20 State v. Crager, 2005 Ohio 6868 (Ohio Ct. App. 2005). See, State v. Smith, 2006 Ohio 1661 (Ohio Ct. App. 2006); State v. Jarrett, 2006 Ohio 882 (Ohio Ct. App. 2006).

21 Johnson v. State, 2005 FLA. App. LEXIS 20381 (Fla. Dist. Ct. App. 2005)

22 Shiver v. State, 900 So.2d 615, 618 (Fla 1st DCA 2005)

23 People v. Rogers, 8 A.D.3d 888; 780 N.Y.S.2d 393 (2004)

24 State v. Crager, 2005 Ohio 6868 (Ohio Ct. App. 2005).

25 Id.

26 Id.

27 Id.

28 State v. Crager, No. 2006-0298, 2006 Ohio 1967; 2006 Ohio LEXIS 1037 (Ohio Apr. 26, 2006) [review granted as to whether records of scientific tests, conducted by a governmental agency at the request of the State for the specific purpose of being used as evidence in the criminal prosecution of a specific individual is testimonial under Crawford].

29 See, United States v. Zavala, 2005 U.S. App. LEXIS 15084 (3rd Cir. Pa. 2005); United States v. Springer, 2006 U.S. App. LEXIS 1131 No. 05-12424 (United States Court of Appeals for the Eleventh Circuit, 2006 U.S. App. LEXIS 1131 January 18, 2006); cf. United States v. Buonignore, 131 Fed. App. 252 (11th Cir. GA 2005); See, State v. Delaney, 613 S.E. 699 (N.C. Ct. App. 2005).

30 People v. Bones, 793 N.Y.S.2d 545 (N.Y. App. Div. 2005); People v. Baylor, 806 N.Y.S.2d 422 (N.Y. App. Div. 2005); See, Commonwealth v. Verde, 444 Mass. 279, 827 N.E. 701, 705 (Mass. 2005); Ellis v. Phillips, 2005 U.S. Dist. LEXIS 13910 (SDNY 2005).

31 People v. Johnson, 121 Cal App. 4th 1409; 18 Cal Rptr. 3d 230 (Ct. App. 2004).

32 Id.

33 People v. Brown, 801 N.Y.S.2d 709.

34 Id.

35 Id. at 710; See, State v. Dedman, 136 N.M. 561, 102 P 3d 628 (NM 2004) [Laboratory reports are not prepared in a manner resembling ex parte communication. While lab analysis may be requested by law enforcement, the reports are generated in a non adversarial setting in which the factors likely to cloud the perception of an official engaged in the more traditional law enforcement functions of observations and investigation are simply not present]; People v. Grogan, 2006 NY Slip Op 2783; 2006 N.Y. App. Div. LEXIS 4395 (April 11, 2006, Decided) [DNA report was admissible as business record, it was not prepared in anticipation of litigation… the People have no power to dictate the contents of practices within the Medical Examiner’s Office nor do the examiners have authority to gather evidence with an eye toward prosecution].

36 People v. Brown, 801 N.Y.S.2d 709;. State v. Forte, No. 20A04, 2006 N.C. LEXIS 45 (N.C. May 5, 2006)[common experience tells us that such reports are prepared for a number of purposes, including statistical analysis and construction of databases, thus potential use in court was only one purpose among several served by the creation and compilation of the DNA reports].

37 Id.

38 State v. Lewis, 2006 Tenn. Crim. App. LEXIS 237 (March 15, 2006, filed).

39 Id; State v. Hocutt; No. COA05-473; 2006 N.C. App. LEXIS 966 (N.C. May 2, 2006).

40 Id.; cf. State v. Forte, No. 20A04, 2006 N.C. LEXIS 45 (N.C. May 5, 2006) )[common experience tells us that such reports are prepared for a number of purposes, including statistical analysis and construction of databases, thus potential use in court was only one purpose among several served by the creation and compilation of the DNA reports].

41 “This Isn’t CSI: Estimating the National Backlog of Forensic DNA Cases and the Barriers Associated with Case Processing,” Criminal Justice Policy Review, Volume 17; Issue 1, Pages 32-47, March 2006.

42 Crawford v. Washington, 541U.S. 36, 76, 158 L.Ed. 2nd 177, 208, 124 S.Ct. 1354 (2004).