D.C. Appeals Court: Defendant Had Right to Confront Forensic Scientists

LegalTimes

DNA analysis can make or break a criminal case in a way that most other evidence can't. The District of Columbia Court of Appeals ruled today that under the Sixth Amendment's Confrontation Clause, a defendant had a right to confront the forensic examiners who handled DNA evidence in his case, rather than a supervisor who was not directly involved.

The defendant, Robert Young, was convicted in 2010 of kidnapping and sexual abuse. A unanimous three-judge appellate panel reversed Young's conviction and ordered a new trial.

A spokesman for the U.S. attorney's office, William Miller, said via email that his office is "reviewing the decision and has no further comment at this time." The Public Defender Service for the District of Columbia, which represented Young, was not immediately reached for comment.

The victim, according to the opinion written by Judge Stephen Glickman, was assaulted in her apartment building in October 2006 and forced to perform oral sex on her assailant. The attacker also attempted vaginal penetration. There were two pieces of biological evidence: semen the victim spit into a tissue and a vaginal swab taken at a hospital. Using those samples, scientists at the FBI lab in Virginia made a DNA profile of the assailant and entered it into a national DNA database.

The attacker's DNA profile, the appeals court said, had a "cold hit" with another profile in the database that belonged to Young. In 2009, police took new DNA material from Young using a cheek swab and the FBI lab developed another DNA profile. According to the lab, Young's new DNA profile matched the assailant's.

Prosecutors had FBI examiner Rhonda Craig present the DNA evidence at trial. Craig supervised the scientists who developed the DNA profiles and then compared them to see if they matched.

Young objected to Craig's testimony, arguing it was hearsay because she wasn't directly involved in handling the original evidence samples, developing the DNA profiles, or calculating the random match probability, or RMP, which describes the probability that a random person would have the same DNA profile as the evidence sample. A low RMP means an examiner can testify "to a reasonable degree of scientific certainty" that the DNA came from the suspect, according to the opinion.

The U.S. attorney's office argued that Craig's testimony wasn't hearsay because she made generalized statements about the testing and analysis, as opposed to presenting formal reports or specific statements by other scientists. Prosecutors also said Craig qualified her testimony by saying it was her "understanding" of what happened.

The court found that the substance of the testimony, and not its presentation, was what mattered, and the Craig provided "critical testimonial hearsay" on the DNA profiles. "Because Craig was not personally involved in the process that generated the profiles, she had no personal knowledge of how or from what sources the profiles were produced," Glickman wrote.

Glickman wrote that the D.C. Court of Appeals opinion will not mean that every person with a role in analyzing DNA must testify. However, he said the U.S. Supreme Court "left open" the issue in previous case law. He speculated that one possible compromise might be to allow an expert who was "personally and significantly involved in all critical stages," even if other scientists worked on the case.

The court ordered a new trial, finding that D.C. Superior Court Judge Herbert Dixon's decision to allow Craig's testimony wasn't "harmless beyond a reasonable doubt." The DNA evidence was critical to the government's case, Glickman wrote, since there was no fingerprint or other physical evidence tying Young to the crime. Young did not confess.

"Without Craig's testimony, the government would have been left with an argument that appellant fit [the victim's] comparatively vague description of her assailant and lived not far from where the attack took place," he wrote. "It may be doubted whether this would have been enough to allow the case to get to the jury. Therefore, reversal is required."

Judges Anna Blackburne-Rigsby and Kathryn Oberly also heard the case.