Testimonial statements under Crawford have a simple rule. The person making the statement must be in court and available for cross-examination.
See People v. Barner, 2015 IL 16949 (04/16/2015). The Illinois Supreme Court sheds some light on whether or not the prosecutors must have each and every DNA analysts involved on a case in court to testify.
DNA evidence can get pretty complicated.
It is not my intention here to do a comprehensive review of that topic. I am only going to speak about it in general terms to root out important points made by the Illinois Supreme Court.
Today's case begins with a pretty brutal kidnapping and rape. Victim is abducted and raped for a day. She is not killed, and eventually is released.
She immediately is taken to the hospital where a rape kit is obtained.
Semen and male DNA was located and preserved. Within a couple years a match to Defendant is made.
Defendant’s DNA is already stored in the CODIS (combined DNA Index System) data based. Defendant is tracked down, a fresh blood sample is provided.
This creates a more precise DNA standard for comparison, and agains when his profile is compared to the profile from the rape kit a DNA match is found.
So this case gives us a good example of modern DNA analysis.
Two important things about how this is done:
1) Preliminary comparison to DNA in Codis is always followed up with a fresh comparison
2) Multiple laboratories consisting of private and public labs and scientist are used and employed
Three DNA experts testified for the State in this case.
But each had to testify about results, conclusions, and opinions from other scientists.
For example, in this case one scientist testified about the original CODIS match. This person was comparing the profile generated from the rape kit to a profile that was already in CODIS. Some other scientist created Defendant’s original profile and put it in the database.
Then, the scientist who made the most recent comparison of Defendant’s profile created from the fresh blood sample also relying heavily on the work of other scientist.
This scientist relied on whoever created the profile from the rape kit. This testifying scientist was the State lab scientist. This person also relied on work done by a private lab. It is becoming increasingly common for state labs to contract out routine DNA work to private labs.
Issue: Are DNA Analysis Reports Testimonial Statements Under Crawford?
Defendant is saying that his confrontation rights were violated when the State’s forensic witnesses, some of whom did not conduct laboratory analysis themselves, testified regarding the conclusions of non testifying forensic analysts.
The confrontation clause is a portion of the sixth amendment to the United States Constitution that provides that…
“[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” U.S. Const., amend. VI.
Crawford v. Washington, 541 U.S. 36 (2004), was a United States Supreme Court decision that tied confrontation clause rights to cross-examination at trial. That decision overturned many evidentiary rules and procedures that allowed law enforcement to present testimonial statements without producing in court the witness who said them.
In Crawford, the Court held that …
“[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: … the Sixth amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68-69.
Years of litigation after Crawford focused on the question: What exactly is a testimonial statement?
- 911 Calls
- Hospital Tests
- Lab Reports
Recent History of Testimonial Statements Under Crawford
Again, we can spend hours on the case law with this question. But the ones that seem significant to the case at hand were also highlighted by the Illinois Supreme Court.
1) Melendez-Diaz v. Massachusetts, 577 U.S. 305 (2009) – Drug analysis reports are testimonial because they were created for use in a criminal trial against the accused.
2) Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) – BAC lab reports on a blood-alcohol test are testimonial because they are only created for evidentiary purposes.
3) Williams v. Illinois, 132 S.Ct. 2221 (2012) – In this case, the really bear down on the question of whether or not a scientific report is created for the prosecution of a specific person. Here, DNA reports were found to be non-testimonial, in part because, no prosecution was underway when the testing was done. The report was not created to be used against defendant, but instead was created for the purpose of finding an unknown rapist. Unlike drug and BAC tests, these reports are also used to exonerate people. There was also an argument that said this kind of testing lacked the formality and solemnity associated with testimonial statements.
4) People v. Leach, 2012 IL 111534 – The Illinois Supreme Court has looked at the question of whether autopsy reports constitutes testimonial evidence. The court held that an autopsy report is not testimonial because it is not prepared for the primary purpose of accusing a targeted individual or for the primary purpose of providing evidence in a criminal case.
So looking at these four prior Crawford Issue decisions, we see that we have a big mess on our hands.
The Illinois Supreme Court has developed the following test to determine whether or not evidence is testimonial in nature.
First, the court, in an objective manner, looks for “the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.” ¶ 60 quoting Leach, 2012 IL 111534, ¶ 120.
Second, if it looks like the evidence in question was “made for the purpose of proving the guilt of a particular criminal defendant at trial, it is testimonial.” Id.
The CODIS Hit
Getting back to our case under review, we see that…
This court strongly pointed out that these reports were not created as evidence against defendant. He was not a suspect at the time of the analysis. Yes, the original DNA analysis may have been connected to a different crime. But, the lab workers could never have known that those results would later inculpate defendant in an unrelated sex case.
The court also actually looked at the reports in this case. They found that it consisted of a various types of documents including:
- Lab Case Notes
- Raw Data
- Inventory Forms
- Consent for Testing Forms
- Conversion Logs
This type of documentation is much different from the certified and sworn reports attesting to the substance of items seized from the arrestee or to the BAC results from Defendant’s blood.
Which if you have seen these things, they basically are just a paragraph or two saying this stuff is “cocaine” or the Defendant’s BAC was “.132”.
None of the documents in this case take the form of an-
- Sworn statement, or
- Formal Declaration
Thus, the documents in this case lacked the “formality and solemnity” we usually speak of when discussing testimonial statements. ¶ 54.
Later Testing After the CODIS Hit
With the second round of comparisons, we do have a different situation.
Here, because there is a preliminary match, arguably, Defendant’s identity is known to law enforcement and to all the scientists involved in the testing.
However, there is still not a prosecution underway.
The court actually punted on this second round of DNA testing. The court held they did not have enough evidence in the record to establish whether or not the lab was in contact with law enforcement during the testing.
But even if they were in contact and directing further testing be done for an imminent prosecution, the Defendant equally cannot establish that it was done for the primary purpose of targeting him or for creating evidence for use in a criminal prosecution.
Apparently, the State Lab was in the middle of systematic retesting of samples to adhere to the later standards.
The court ultimately concluded, that even if the DNA evidence was testimonial it was harmless error.
We should expect this issue to be flushed out in futures cases.
This is especially true, if we consider the fact that increasingly private laboratories are more and more involved in routine DNA analysis in behalf of the crime labs.
Often, the private lab scientists are in other states.
The costs of actually having to get every expert who did work on a case would be very prohibitive for prosecutors.