Jessica Akins
The Confrontation Clause of the Sixth Amendment guarantees the accused the right to confront witnesses against him. More than a decade ago, the Supreme Court of the United States, in Crawford v. Washington, held that testimonial statements violate the Confrontation Clause unless the declarant takes the stand to be cross-examined; if he is unavailable, the defendant must have had a prior opportunity to cross-examine him.1
Since then, both the Supremes and the Texas Court of Criminal Appeals have grappled with what constitutes “testimonial” statements. Recent opinions have narrowed the gap on the issue, more often than not revealing which forensic analysis evidence is disallowed due to a Crawford violation.
A recent and well-structured opinion from the Court of Criminal Appeals shifts this tide and shows us what is allowed. The Court in Paredes v. State addressed this question: Does the admission of a supervising DNA analyst’s opinion regarding a DNA match violate the Confrontation Clause when that opinion is based on computer-generated data obtained by non-testifying analysts during batch DNA testing?2
The answer is no, it does not.
The capital murder
The defendant in this case is a gang member. He and fellow gang members armed themselves and went to their drug dealer’s apartment, seeking revenge for receiving a bad batch of cocaine. At least three gang members entered the apartment with firearms; the defendant was carrying an AK-47. They pretended to be interested in buying more cocaine but instead planned to rob the occupants of their drugs and money. The defendant and his accomplices demanded money and drugs from the people in the apartment, and when they did not comply, the defendant fired five shots at the first victim, killing him. He approached a second man and attempted to shoot him, but his gun jammed. One of his accomplices then shot and killed the second man, and they fled the apartment.
Afterward, the defendant admitted to the rest of the gang he had shot someone in the apartment. He joked and bragged that blood gushed out “like a river.” The defendant, realizing that his white T-shirt had blood on it, asked a fellow gang member for a different shirt. He instructed her to wash his bloody shirt, but she never did.
DNA evidence
Not only did the fellow gang member fail to wash his shirt from the night of the offense, but she also left it in her closet, where the defendant had hidden the AK-47. When the defendant became a suspect in the capital murder two days later, she was arrested and the evidence implicating him was obtained from her house. (It’s hard to find a good woman.)
Police obtained casings from the murder scene, and subsequent testing revealed they were fired from the AK-47 found in the closet. DNA testing of the bloodstain on the white T-shirt was a match for the DNA of the second victim.
The State introduced the DNA evidence through the testimony of a supervising analyst. She explained the DNA match was obtained through an assembly-line batch process, wherein three different analysts conducted steps in the DNA testing process.3 Once complete, she conducted the final step of interpretation and comparison by viewing the DNA graph and determining whether this DNA profile matched the DNA profile of a known individual, in this case the second victim.
The defendant objected to her opinion regarding the DNA match because he did not have the opportunity to cross-examine the other three analysts who conducted the testing on which her expert testimony was based.
Recap on the law post-Crawford
In 2009, the Supreme Court issued Melendez-Diaz v. Massachusetts.4 In that case, the defendant was charged with drug distribution, and the State offered certificates of analysis sworn to by analysts at a state lab as evidence that the substance was cocaine of a certain quantity.5 The analysts did not testify at trial, and the defendant did not have an opportunity to cross-examine them.6 Justice Scalia, writing for the majority, held that the certificates were testimonial because they basically mimicked what a live witness would have testified to; thus, their admission violated the Confrontation Clause.
In 2011, the Supreme Court issued another case regarding the admissibility of forensic lab reports, Bullcoming v. New Mexico.7 The defendant was charged with DWI, and the State introduced a blood-alcohol analysis report certifying that his blood-alcohol concentration was above the legal limit.8 The State did not call the analyst who signed the certification as a witness but instead called another analyst who was familiar with the laboratory’s testing procedures. Justice Ginsburg, writing for the majority, held that testimony from the second analyst did not meet the constitutional requirement of confrontation because the testifying scientist did not observe or participate in the testing.9
In 2013, the Court of Criminal Appeals issued Burch v. State.10 The defendant in that case was charged with possession of cocaine with the intent to deliver. The State offered a lab report that certified the substance seized from the defendant was 2.2 grams of cocaine.11 This report was signed by both the analyst and the reviewer, but only the reviewer testified at trial. In determining that the admission of this report and testimony violated the defendant’s right to confrontation, the Court held that Burch was controlled by Bullcoming.12 Judge Womack, writing for the majority, held that because the reviewer did not have personal knowledge of the testimonial facts that were submitted, she was not an appropriate surrogate witness for cross-examination.13
Adding Paredes to the mix
Judge Newell, writing for the Court in a unanimous opinion, held that Paredes is unlike Bullcoming and Burch because the testifying expert in this case was more than a surrogate for a non-testifying analyst’s report.14 This expert performed a crucial analysis in determining the DNA match and testified to her own conclusions. The Court rejected the defendant’s argument that he was entitled to cross-examine all three analysts who contributed to the testing process, noting that although the testifying analyst relied upon the work of others, neither their lab reports nor their conclusions were offered into evidence.
Paredes holds that the admission of a supervising analyst’s opinion regarding a DNA match does not violate the Confrontation Clause when the opinion is based upon computer-generated data obtained through batch testing.15 Prosecutors should be mindful in our practice that this case does not overrule Burch v. State. The testimony of an expert witness that explains another analyst’s report violates the Confrontation Clause, even when she is familiar with the testing process. And the admission of a lab report created solely by a non-testifying analyst, without calling that expert, violates the Confrontation Clause. The facts in Paredes are distinguishable in that the testifying expert shared her own interpretations and conclusions when rendering her opinion, and no report was admitted.
Although the issue presented in Paredes has not been directly addressed by the United States Supreme Court, the High Court has recently denied certiorari on cases from other jurisdictions that have issued opinions in line with Paredes.16 From this, we can gauge some confidence that the practice of presenting an expert witness who testifies her in-court opinion is based upon non-testimonial information will not violate the Confrontation Clause.
Endnotes
1 Crawford v. Washington, 541 U.S. 36, 54 (2004).
2 Paredes v. State, No. PD-1043-14, 2015 WL 3486472 (Tex. Crim. App. June 3, 2015).
3 One analyst applied chemicals to the biological sample to isolate the DNA in the cells; another analyst determined the amount of DNA present. A third analyst copied the DNA sequence and loaded the data onto an instrument that yielded a DNA graph (i.e., the raw data) that could be used to compare the produced DNA profile to other evidence.
4 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
5 Id. at 305.
6 Id. at 309-311.
7 Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).
8 Id. at 2709.
9 Id. at 2715.
10 Burch v. State, 401 S.W.3d 634 (Tex. Crim. App. 2013).
11 Id at 635.
12 Id at 637.
13 Id at 604.
14 Paredes, 2015 WL 3486472 *6.
16 Id. at *7.
17 Jenkins v. State, 102 So.3d 1063 (Miss. 2012), cert. denied, 133 S.Ct. 2856 (2013); Commonwealth v. Greineder, 984 N.E.2d 804 (Mass. 2013); cert. denied, 134 S.Ct. 166 (2013); Marshall v. People, 309 P.3d 943 (Colo. 2013); cert. denied, 134 S.Ct. 2661 (2014).