GREENE, J.
On June 29, 2006, Appellant, Norman Bruce Derr (Derr), was convicted of multiple sexual offenses in the Circuit Court for Charles County. On appeal, Derr challenges the admission of forensic evidence introduced at trial through the testimony of an expert witness who did not take part in or observe the physical testing of the evidence, or independently determine the test results. In the Court of Special Appeals, Derr presented the following questions for review:
We shall answer the first question in the affirmative. 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
On September 27, 2004, Norman Bruce Derr was charged with multiple sexual offenses relating to the rape of Alida Berman on December 9, 1984.
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). In 2004, a match was discovered between Derr's existing profile in CODIS and the profile generated in 2002 by
The defense filed preliminary motions in the Circuit Court for Charles County challenging the admission of Dr. Luttman's proposed testimony. Two hearings were held in limine to determine whether the State could introduce the opinion of the serological examiner and the results of the PERK analysis solely through the use of "surrogate testimony," with Dr. Luttman as the surrogate. The term "surrogate testimony" refers to expert testimony rendered by a lab supervisor, rather than by the analyst who performed the tests. Derr argued that he had a right under the Confrontation Clause to confront and cross-examine the original analysts. The Circuit Court ruled that the serological report was not testimonial and was, therefore, admissible through Dr. Luttman under the business records exception to the hearsay rule
Instead, the State relied solely on testimony from Dr. Luttman, who was accepted by the court as an expert in the fields of forensic serology and forensic DNA analysis, and who was permitted to testify regarding the 1985, 2002, and 2004 testing results. During her testimony, Dr. Luttman explained the procedure for identifying sperm and semen, as well as the procedure for creating a DNA profile. Dr. Luttman also testified regarding the opinion of the 1985 serologist and the DNA testing procedures and results of the 2002 test. She testified that it was her opinion, based on the tests conducted, that Derr's DNA profile matched that of the suspect. She supported her opinion by stating it was based on a "reasonable degree of scientific certainty." The jury found Derr guilty of four counts relating to the sexual assault of Mrs. Berman.
In order to determine the application of Confrontation Clause principles to a DNA case, a brief explanation of the tests performed and the procedures followed is necessary. In describing the science of DNA evidence, we have said:
Young v. State, 388 Md. 99, 106-07, 879 A.2d 44, 48-49 (2005) (internal citations omitted) (quoting Gross v. State, 371 Md. 334, 339-40 n. 1, 809 A.2d 627, 630 n. 1 (2002)). The DNA analysis begins when a sample is transported to a DNA laboratory by law enforcement personnel. Office of the Inspector General, The FBI DNA Laboratory: A Review of Protocol and Practice Vulnerabilities (May 2004), http:// www.justice.gov/oig/special/0405/index.htm [hereinafter FBI Protocol]. Forensic scientists visually examine the evidence for indications of bodily fluid which may contain DNA evidence. Id. The scientists then perform tests to determine if DNA is present. Id. Typically, a cotton swab is used to remove dried body fluid, and the DNA is extracted from the cotton swab. Id.
The common procedure used in DNA analysis is called polymerase chain reaction (PCR), which is "an amplification procedure that reproduces repeatedly a short segment of DNA, making it possible to analyze minute or degraded samples." Young, 388 Md. at 108, 879 A.2d at 49. Further,
Young, 388 Md. at 108-11, 879 A.2d at 49-51.
It is important to explain what a DNA profile is composed of, and how it is created. As referenced above, the DNA is heated to separate the nucleotides. The chemical in which the DNA is heated contains markers that identify "the starting and ending points of the DNA fragment that is duplicated." FBI Protocol. After the DNA fragments are copied, the fragments are sorted according to length in a process called electrophoresis. Id. Special software measures the length of the varying DNA fragments. Id. This process produces "an electropherogram, or graph that displays a series of different-colored peaks of different heights." Roberts v. United States, 916 A.2d 922, 927 (D.C.2007). The electropherogram reveals the primers used during amplification which contain fluorescent markers. "The machine and the software then represent the lengths of the various fragments as peaks on a graph...." FBI Protocol. Specifically:
FBI Protocol. A DNA analyst, or examiner, interprets the data displayed on the electropherogram, which reveals the alleles seen at all the examined loci. Roberts, 916 A.2d at 927. The DNA examiner then works with the Genotyper graph and documents the allele values at each chromosomal location or loci, forming the DNA profile. FBI Protocol. This DNA profile is then compared to profiles from known individuals or inputted into CODIS to find
The Sixth Amendment provides, in part, 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. The same right is secured by Article 21 of the Maryland Declaration of Rights, which states that "in all criminal prosecutions, every man hath a right ... to be confronted with the witnesses against him ... [and] to examine the witnesses for and against him on oath[.]" See Crawford v. State, 282 Md. 210, 211, 383 A.2d 1097, 1098 (1978). As we have stated, "[t]here are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal." State v. Breeden, 333 Md. 212, 219, 634 A.2d 464, 467 (1993) (quoting Barber v. Page, 390 U.S. 719, 721, 88 S.Ct. 1318, 1320, 20 L.Ed.2d 255, 258 (1968)). Further, "[t]wo significant purposes lie at the core of the right of confrontation. One is to provide the defendant with an adequate opportunity for cross-examination. The other purpose is to give the judge and jury opportunities to observe the testifying witness's demeanor." Breeden v. State, 95 Md.App. 481, 495-96, 622 A.2d 160, 167 (1993) (internal citations omitted), aff'd, State v. Breeden, 333 Md. 212, 634 A.2d 464 (1993); see Crawford, 282 Md. at 214, 383 A.2d at 1099 (asserting that the primary purpose of requiring confrontation is to prevent depositions and other non-live testimony from being used against an accused in lieu of a personal examination and cross-examination of the witness).
In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court of the United States set forth a framework for evaluating violations of the Confrontation Clause of the Sixth Amendment.
In defining the term "testimonial statement," the Court in Crawford stated:
Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193. Hence, in Crawford, the Court referred to the purpose of the use of material in a later trial in two contexts. First, "pretrial statements that declarants would reasonably expect to be used prosecutorially," and second, "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. (internal citations and quotations omitted). The Court subsequently held in Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), that if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution," then the statement is testimonial. Davis, 547 U.S. at 822, 126 S.Ct. at 2274, 165 L.Ed.2d at 237. In contrast, statements "are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Davis, 547 U.S. at 822, 126 S.Ct. at 2273, 165 L.Ed.2d at 237. Likewise, in Michigan v. Bryant, 562 U.S. ___, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93, 107 (2011), the Court held that "[w]hen, as in Davis, the primary purpose of an interrogation is to respond to an `ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the Clause." The Court further stated that "[t]he existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than `prov[ing] past events potentially relevant to later criminal prosecution.' Davis, 547 U.S. at 822, 126 S.Ct. [at 2274,] 165 L.Ed.2d [at 237]." Bryant, 562 U.S. at ___, 131 S.Ct. at 1157, 179 L.Ed.2d at 109. These cases combined reveal the Court's emphasis on the purpose for which a statement was made in determining its testimonial nature.
Subsequently, in Melendez, the trial court "admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was
Id. (quoting Mass. Gen. Laws ch. 111, § 13). Thus, "[t]he analysts who swore the affidavits provided testimony against Melendez-Diaz, and they are therefore subject to confrontation[.]" Melendez, 557 U.S. at ___, 129 S.Ct. at 2537 n. 6, 174 L.Ed.2d at 327 n. 6. Further, in Melendez, the Court noted that "[l]ike expert witnesses generally, an analyst's lack of proper training or deficiency in judgment may be disclosed in cross-examination." Melendez, 557 U.S. at ___, 129 S.Ct. at 2537, 174 L.Ed.2d at 327.
In Melendez, the Court made two important conclusions relevant to our analysis here: "the analysts' affidavits were testimonial statements, and the analysts were `witnesses' for purposes of the Sixth Amendment." Melendez, 557 U.S. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 322. The Court therefore held that the certificates were inadmissible absent the analysts' testimony or a showing that they were unavailable and that the defendant had a prior opportunity to cross-examine. Id. The holding in Melendez left unanswered the question of how to apply the principle to cases involving surrogate testimony, where a supervisor for a lab testifies, but the actual person who created the data or report does not.
Recently, in Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the United States Supreme Court held that "[a]n analyst's certification prepared in connection with a criminal investigation or prosecution" is testimonial and therefore the accused has the right to be confronted with the analyst who performed the testing. Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2713-14, 180 L.Ed.2d at 620. The Court also stated that Melendez "refused to create a `forensic evidence'
In State v. Bullcoming, 147 N.M. 487, 226 P.3d 1, 8-9 (2010), the New Mexico Supreme Court held that although the laboratory report introduced at Bullcoming's trial was testimonial under Melendez, the report was validly admitted because the analyst was a "mere scrivener," and therefore the surrogate testimony was sufficient to satisfy Bullcoming's confrontation right. The United States Supreme Court granted certiorari to answer the question:
Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2713, 180 L.Ed.2d at 619. In answering the question, the Court held:
Id.
Accordingly, the United States Supreme Court reversed the holding of the New Mexico Supreme Court. The Court first addressed the issue of surrogate testimony, and New Mexico's holding that the analyst merely transcribed the results generated by the machine without interpretation or independent judgment. Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2714, 180 L.Ed.2d at 619-20. The Court stated that the certification "reported more than a machine-generated number," and went on to list all of the representations made in the report "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. The Court held that such representations are "meet for cross-examination" and continued that even if the certification was just a machine-generated number, "the comparative reliability of an analyst's testimonial report drawn from machine-produced data does not overcome the Sixth Amendment bar." Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2714-15, 180 L.Ed.2d at 621.
The Court, explaining why surrogate testimony does not satisfy the Confrontation Clause, noted that the testimony "of the kind [the expert] was equipped to give could not convey what [the analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed." Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2715, 180 L.Ed.2d at 622. The Court concluded that "the analysts who write reports that
Bullcoming clarified the Confrontation Clause analysis regarding forensic testing that began in Melendez. In Melendez, the Court held that drug analysis certificates were testimonial because the contents of the certificates were "functionally identical to live, in-court testimony, doing `precisely what a witness does on direct examination,'" and the statements were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Melendez, 557 U.S. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 321 (citations omitted). The Court in Melendez thus held that the certificates were inadmissible absent the analysts' testimony or a showing that they were unavailable. Melendez, 557 U.S. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 322. Following Melendez, in Bullcoming the Supreme Court further explained the definition of testimonial as including those statements "made for the purpose of proving a particular fact." Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2710, 180 L.Ed.2d at 616. In explaining Melendez, the Court in Bullcoming stated that the report in Melendez "had been created specifically to serve as evidence in a criminal proceeding" and therefore could not be introduced 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. The Court also stated that such reports are testimonial because they are "created solely for an `evidentiary purpose,'" i.e., "in aid of a police investigation[.]" Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2717, 180 L.Ed.2d at 623.
Although the Supreme Court has not yet answered the specific question of who must testify in cases involving scientific analysis, it has provided guidance as to which people involved with a case are witnesses whose statements will be considered testimony against the accused. The Commonwealth of Massachusetts and the dissent in Melendez argued vigorously that there are certain types of witnesses who are exempt from the requirements of the Confrontation Clause. The majority, however, rejected each of the justifications in turn. See Melendez, 557 U.S. at ___, 129 S.Ct. at 2533-40, 174 L.Ed.2d at 323-30. First, the Court rejected the argument that the analysts are not "accusatory" witnesses and are thereby not the type of witnesses covered by the Confrontation Clause. Melendez, 557 U.S. at ___, 129 S.Ct. at 2533-34, 174 L.Ed.2d at 323. Massachusetts based this argument on the notion that an analyst is not accusatory
The Court also rejected a claim that the Confrontation Clause applies only to "conventional" witnesses. Melendez, 557 U.S. at ___, 129 S.Ct. at 2535, 174 L.Ed.2d at 324-25. The dissent in Melendez advanced three reasons why analysts were not conventional witnesses: analysts report near contemporaneous observations (as opposed to relating events observed in the past), analysts do not have personal knowledge of the crime, and analysts' statements are not the product of interrogation. Id. The Court rejected each argument in turn, stating that none of these contentions had adequate support in case law, and emphasizing that the determining factor is that the analysts were witnesses against the defendant and were responding to a police inquiry, not whether they were "conventional." Id.
Most importantly, the Court rejected the contention that analysts were somehow neutral witnesses based on the scientific nature of their statements. Melendez, 557 U.S. at ___, 129 S.Ct. at 2536-38, 174 L.Ed.2d at 325-328. The Court held that the supposed reliability of scientific evidence is not sufficient grounds to admit such statements absent live testimony. Melendez, 557 U.S. at ___, 129 S.Ct. at 2536-37, 174 L.Ed.2d at 326-27. Rather, "there are other ways—and in some cases better ways—to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available."
Under Melendez and Bullcoming, however, it is now clear that the "express purpose" of the statement need not be for later use at trial, but instead, any statement that was "`made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial'" is considered to be testimonial. Melendez, 557 U.S. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 321 (quoting Crawford, 541 U.S. at 52, 124 S.Ct. at 1364, 158 L.Ed.2d at 193). The statute under which autopsy reports are completed,
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
In reaching this holding, we find support in the jurisprudence of the District of Columbia Court of Appeals, which has determined
Id. Despite the government's contention that Dr. Baechtel formed his own independent conclusion, the court held that "[o]ur review of the record confirms that, at least in part, Dr. Baechtel's opinion that appellant could not be excluded as a contributor to the DNA evidence rested on the conclusions reached by the team that did the actual laboratory analysis and set forth those conclusions in the report he reviewed." Roberts, 916 A.2d at 938. Further, the court explained that there is "no room for dispute that the conclusions of FBI laboratory scientists ... [that were] admitted as substantive evidence at trial are `testimonial' under Crawford...." Id.
This holding was affirmed in Gardner, in which the District of Columbia Court of Appeals stated, "In light of the fact that the conclusions of FBI laboratory scientists have been indisputably held to be `testimonial,' the Roberts court concluded that the appellant's Sixth Amendment Confrontation rights could have been satisfied only by cross-examination of those scientists who actually conducted the testing." Gardner, 999 A.2d at 61. The court also emphasized that, just as in Roberts and Veney, the "experts [in Gardner] quoted and directly referred to the conclusions of the lab analysts" and further that the experts "repeatedly read from and directly referenced the testing results and conclusions of the analysts who conducted
Id.
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.
The key distinction in this type of case is whether the testifying expert relies on raw data in forming his or her conclusions, as opposed to relying on the conclusions and opinions of others when testifying.
Based on this explanation, we view the term "raw data" in the context of a Md. Rule 5-703 inquiry to be limited to the data or materials which have not yet been subjected to scientific testing. Therefore, we hold, in accordance with Bullcoming, that the testimonial statement of the analyst is comprised of more than just the results of the testing. Instead, the testimony includes the underlying procedure or process because the "methodology requires the exercise of judgment and presents a risk of error that might be explored on cross-examination." Melendez, 557 U.S. at ___, 129 S.Ct. at 2537, 174 L.Ed.2d at 327. Accordingly, we agree with the District of Columbia Court of Appeals that, although Dr. Luttman used the data to inform her testimony, the data itself was both substantive and testimonial evidence, and therefore the analysts who actually performed the testing were also required to testify in order to satisfy Derr's right to confrontation.
Turning specifically to the case sub judice, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: (1) the serological report from 1985 in which the biologist identified sperm and semen on genital and vaginal swabs taken from the victim; (2) a DNA profile generated in 2002 by Dr. Donovan when the sample was submitted to the FBI for DNA testing, which provided a match between the profile generated from the sample taken from the victim at the time of the crime and Derr's DNA profile stored in CODIS; and (3) a DNA profile created from a new sample of Derr's DNA in 2004. Similar to the prosecution in Bullcoming, the State in this case employed surrogate testimony, calling "another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test[s]" to testify as to the forensic examinations and results, providing evidence to establish Derr's guilt. This scientific
Derr argues that he was denied "the opportunity to confront and cross-examine the analysts who performed the scientific testing of the biological evidence that was the foundation for the DNA `match' evidence[.]" He continues that "testimonial statements (the opinion of the serology examiner, and the DNA test results) of witnesses (the serology examiner and the DNA analyst) who did not appear at trial were introduced against Mr. Derr" and therefore "[t]he admission of these testimonial statements violated Mr. Derr's Confrontation Clause right...." Derr maintains that the testing is a "highly analytical and complex scientific test that involved the exercise of judgment and interpretation in anticipation of a criminal prosecution." Derr argues that by not allowing him to confront the analysts, "the jury was [led] to believe that the match itself established the reliability of the underlying serological examination and DNA analysis...."
In addition, Derr asserts that Dr. Luttman's "forensic testimony served the dual purpose of providing the sole identification evidence of appellant Norman Derr as the perpetrator of a rape and sexual assault, while simultaneously shielding the forensic testing from any effective cross-examination." Further, Derr claims that the State never "explains precisely how Mr. Derr—or any other criminal defendant confronted with scientific evidence—could meaningfully challenge the actual conduct of the forensic testing, when the results of the testing (whether in the form of opinions or `raw' data) are introduced into evidence through surrogate forensic testimony." Relying on Melendez, Derr asserts that "[a]llowing expert witnesses ... to testify about forensic tests performed by third party analysts strips defendants of the opportunity to probe the analyst's `honesty, proficiency, and methodology,' thus making it impossible to `weed out' fraudulent analysts as well as incompetent ones...." Derr concludes that "[t]he opinion of the serologist, and the DNA test results, are testimonial under Crawford because they were made under circumstances that would lead an objective analyst reasonably to believe the statements would be available for use at a later trial" and further that "[t]he information about the perpetrator's DNA profile conveys in a graphic form precisely what the analyst would be expected to testify about on direct examination at trial."
The State bases much of its argument on Md. Rule 5-703, maintaining that the DNA results were not testimonial. The State characterizes the DNA results as "raw data" and states that the data was not introduced for the truth of the matter asserted, but rather, as the basis of Dr. Luttman's opinion, and therefore the data is not hearsay. The State also argues that data is not testimonial hearsay because it is not a statement made by a person. The State then argues that even if the information is hearsay, it is not testimonial under Crawford, because it "is not an affidavit, a certified record, a deposition, or anything
We shall hold that the trial judge erred in admitting the 1985 serological test, and the 2002 and 2004 DNA test results because the reports were testimonial statements and their admission through the testimony of Dr. Luttman violated Derr's right under the Confrontation Clause. Specifically, we address the results of the 1985 serological test. Dr. Luttman testified regarding the opinion and conclusion of the serologist that semen and sperm were present on the swabs. Dr. Luttman testified that a serology examiner at the FBI in 1985 performed the test by viewing the sample under a microscope and concluding that the cells he viewed were sperm cells. The actual test and the procedures used are unknown. Dr. Luttman knew only that the serological examiner was an FBI agent named "Babiak"; she did not know whether Babiak did the bench work (i.e., the testing, calculations, and reporting), what his credentials were, how long he worked at the FBI, his proficiency ratings, or any other information regarding who actually performed the bench work. Dr. Luttman knew only that Babiak interpreted the results of testing performed by a biologist, who analyzed the serology sample. Someone wrote a report analyzing the serology sample and an agent named Babiak signed that report. Specifically, the following exchange took place during a bench conference regarding the admissibility of the 1985 serology evidence:
The State then asked Dr. Luttman about notations on the report that was admitted into evidence. Dr. Luttman said, "They were by the person who did the bench
Finally, in her testimony Dr. Luttman relied on the serological examiner's conclusion that sperm cells were present, and she stated that it is the "FBI's policy not to repeat tests where ... we have reports from laboratory results." Ultimately, Dr. Luttman conceded that she could not form an independent basis for her conclusions without trusting the report.
As to the DNA profile created in 2002, the trial judge erred in concluding that, although Dr. Donovan's report was testimonial, the underlying data was not. The DNA profile was based on the test performed by Dr. Donovan, an FBI examiner who did not testify at trial, and it provided the basis for the match between the unknown sample and the profile in the CODIS database. Dr. Luttman testified as to the methodology used and the results obtained from the 2002 test, and she also testified that neither she nor her team were involved in the testing. When asked whether she was involved in the 2002 test,
Derr argues that "[t]he DNA test results, although computer-generated in their final form, were the end product of a highly analytical process that required the analyst to exercise judgment and interpretation," and were therefore testimonial statements of the analyst. Derr continues that the "test results, although computer generated during the final stage of the DNA analysis, were produced with the assistance and input of the analyst and must, therefore, be attributed to the analyst." Finally, Derr contends that "[a] DNA analyst must follow a detailed protocol that requires the exercise of judgment and discretion at each stage of the process," and therefore "the results cannot be attributed solely to a machine." We agree. As stated by the United States Supreme Court in Melendez, whatever testimony is introduced must be live. Melendez, 557 U.S. at ___, 129 S.Ct. at 2532 n. 1, 174 L.Ed.2d at 322 n. 1. The prosecution does not have discretion in determining who may testify regarding testimonial statements at issue; its discretion lies in deciding which testimonial statements it chooses to admit. While Dr. Luttman had a "general knowledge" of the procedures employed in the lab, she did not have first-hand knowledge of the actual procedures performed in this case, and thus she could not be cross-examined regarding Dr. Donovan's statements without violating the Confrontation Clause. The DNA test results and the report were therefore not admissible without Dr. Donovan's testimony. As stated in Bullcoming, "the analysts who write reports that the prosecution introduces must be made available for confrontation," and therefore the admission into evidence of the 2002 DNA analysis and DNA profile through the surrogate testimony of Dr. Luttman violated the Confrontation Clause. Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2715, 180 L.Ed.2d at 621. Hence, it was improper to receive into evidence Dr. Luttman's testimony regarding Derr's DNA profile created in 2002, merely because she was a supervisor and had been designated by the court as an expert in the field of DNA analysis. As stated in Bullcoming, "surrogate testimony of the kind [the supervisor] was equipped to give could not convey what [the analyst] knew or observed about the events his certification concerned, i.e., the particular test and testing process he employed." Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2715, 180 L.Ed.2d at 622.
Finally, with regard to the 2004 test, the record regarding the full extent of Dr. Luttman's involvement in developing the
Dr. Luttman indicated that she supervised the team of biologists who conducted all of the bench work and, according to her testimony, the supervisor evaluates the analyst's results before formulating the report. Dr. Luttman reiterated several times throughout her testimony that she did not perform any of the actual testing in the 2004 analysis. In addition, it is not clear whether she was present and observed the actual procedures. Nowhere in Dr. Luttman's testimony did she indicate that she was physically present to observe the biologists conduct the relevant tests. In fact, when asked whether she "might be at a conference or testifying and [her] team is back at the lab doing the bench work," Dr. Luttman responded, "Yes they are." Dr. Luttman's consistent description of her involvement with the 2004 analysis was that she reviewed the results of the bench work performed by the biologists. Therefore, on the basis of the record before us, we cannot say that Dr. Luttman observed the 2004 testing being performed. Because our disposition of this case is to reverse and to remand to the Circuit Court for further proceedings, further probing of Dr. Luttman's involvement in the 2004 testing procedures can be done at that time. Consistent with the Supreme Court's holding in Bullcoming, if on remand to the Circuit Court evidence is presented by the State indicating that Dr. Luttman did in fact observe the 2004 testing, the requirements of the Confrontation Clause, indeed, may be satisfied, and the 2004 DNA analysis may be properly admissible through surrogate testimony.
Accordingly, we shall reverse the judgment of the Circuit Court for Charles County and hold that the trial judge erred in admitting the results of scientific testing through a surrogate analyst who did not, on the basis of this record, perform or observe the actual testing.
HARRELL and BATTAGLIA, JJ., Concur and Dissent.
HARRELL, J., concurring and dissenting, in which BATTAGLIA, J., joins.
Recent United States Supreme Court jurisprudence reconfigures the contours of the admissibility of evidence and testimony for purposes of the Confrontation Clause; however, the Court's holdings in that regard are highly fact-bound and therefore make difficult extrapolating a broad rule of law to be applied prospectively. See generally Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Although the Majority opinion here accepts wholly these cases as controlling in the present case, the Majority ignores, to my thinking, several critical factual distinctions between the present case
Working within the confines of these cases (and subsequent cases applying their holdings), I would hold that, on this record extract, Dr. Luttman's testimony regarding the 1985 serological test and the 2004 DNA test (and the reports themselves), are admissible, as they do not frustrate Derr's confrontation rights. I agree with the Majority, however, that Dr. Luttman's testimony regarding the 2002 test is inadmissible in light of the Supreme Court's decision in Bullcoming. That is, because I agree that the 2002 test is "a forensic laboratory report containing a testimonial certification—made for the purpose of proving a particular fact—through in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification,"
In 1984, when hospital personnel collected evidence using a physical evidence recovery
Before this Court engages in a Confrontation Clause analysis, "the first question is whether the rules of evidence, including but not limited to the hearsay rule, exclude it." LYNN MCLAIN, MARYLAND PRACTICE, MARYLAND RULES OF EVIDENCE 189 (3d ed.2007). Not until we determine that the evidence or testimony is admissible under our evidentiary rules do we reach the separate question of whether the Confrontation Clause excludes such evidence and/or testimony. See id. The State entered into evidence the 1985 test, conducted by FBI analysts and biologists, to explain the conclusion that Dr. Luttman attested to; namely, that the sample from the 1984 PERK matched a DNA sample obtained from Derr in 2004. Maryland Rule 5-801 defines hearsay as, "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
If a court determines that evidence or testimony is hearsay, it is inadmissible and, therefore, the Confrontation Clause is not implicated in the first instance. In State v. Snelling, 225 Ariz. 182, 236 P.3d 409, 414 (2010)—a post-Melendez-Diaz case—the Arizona Supreme Court found that the testimony of a medical examiner was not hearsay, and thus, the admission of the testimony did not violate Snelling's confrontation rights. Although the appellate court recognized that the medical examiner relied on an autopsy report that she did not conduct or observe, the court determined that she was not a "conduit" merely for the admission of otherwise inadmissible hearsay evidence because she also studied crime scene photographs and used her own training to come to an independent conclusion. See id. Similarly, I would hold that an expert witness, relying reasonably on facts and underlying data in order to show the basis of his or her opinion, is not testifying to "prove the truth of the matter asserted by an out-of-court declarant" and the testimony is not hearsay.
The Supreme Court of Illinois, in Williams, supra,
The Williams Court explained that expert witness testimony regarding underlying facts and data, which may be otherwise inadmissible, is not considered hearsay when done for the purpose of explaining his or her opinion.
Williams and Snelling, therefore, stand for the proposition that, as long as expert witnesses interpret, compare, or otherwise draw their own conclusions regarding tests completed by other analysts (as was the case with the 1984 serology test in the present case) the testimony regarding the test and the test itself are not hearsay and thus, ipso facto, its admission does not violate the Confrontation Clause. In other words, "the constitutional dividing line" should be drawn between "expert testimony that is merely a `conduit' for someone else's analysis versus expert testimony in which the live witness offers their own independent analysis." Williams, 345 Ill.Dec. 425, 939 N.E.2d at 280. The evidence Dr. Luttman provided in court was her opinion, based on a comparison and interpretation of the reports, that the sample from 1984 matched the sample from 2004. See Williams, 345 Ill.Dec. 425, 939 N.E.2d at 279 ("The evidence against the defendant was [the expert's] opinion, not [the crime lab's] report ... [the expert] testified to her conclusion based upon her own subjective judgment about the comparison of the [crime lab] report with the existing... profile."). The report conducted in 1985, therefore, should not be considered hearsay because it was a basis merely for Dr. Luttman's subjective opinion. Accordingly, I would hold that the 1985 report, being admissible non-hearsay, does not implicate the Confrontation Clause.
In holding that Dr. Luttman's testimony regarding the 1985 serology report is inadmissible, the Majority states that the report is not "raw data," which includes only "data or materials which have not yet been subjected to scientific testing." See Maj. Op. at 244, 29 A.3d at 554. Even if the 1985 serology report and Dr. Luttman's testimony regarding the report are hearsay (a belief I do not harbor), I believe the 1985 serology report contains merely "raw data," and testimony relating to that report is not "testimonial" within the contemplation of the Confrontation Clause. I would hold, therefore, that both the report
The Court of Appeals of New York held in People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415, 918 N.E.2d 927, 931 (2009)—a post Melendez-Diaz, pre-Bullcoming case—that a laboratory testing report was not testimonial because "it consisted of merely machine-generated graphs, charts and numerical data." In Brown, a young woman was raped allegedly in 1993; when she escaped her attacker, a friend brought her to a local hospital. See Brown, 890 N.Y.S.2d 415, 918 N.E.2d at 928. The hospital collected evidence using a rape kit, but, due to back-log in the system, DNA testing was not completed for almost nine years. See id. The laboratory that conducted the test isolated a male DNA specimen and produced a DNA report, which implicated Brown in the rape. See Brown, 890 N.Y.S.2d 415, 918 N.E.2d at 929. At trial, an expert witness testified to the findings in the DNA report, even though he did not participate directly in the testing procedure. See Brown, 890 N.Y.S.2d 415, 918 N.E.2d at 930. In holding that the DNA report constituted "raw data" alone, the New York court explained that such "raw data" could be introduced at trial properly, with accompanying live witness testimony, without running afoul of the Confrontation Clause.
The facts of Brown vary greatly from those with which the Supreme Court in Melendez-Diaz dealt. The prosecution in Brown called a live witness to attest to the findings in the original DNA test and the later match found in CODIS, see Brown, 890 N.Y.S.2d 415, 918 N.E.2d at 931, whereas, in Melendez-Diaz, the prosecution entered into evidence, without live testimony by a witness, "certificates of analysis" signed by law enforcement officials, which stated that a substance seized from the defendants was cocaine of a certain weight. See Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2532, 174 L.Ed.2d at 314. The Melendez-Diaz Majority dismissed the prosecution's argument that, for Confrontation Clause purposes, the affidavits were "the result of neutral, scientific testing" because the affidavits "contained only the bare-bones statement that `the substance was found to contain: Cocaine.'" Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2536-37, 174 L.Ed.2d at 326-27 (internal citations and alterations omitted). Moreover, the prosecution in Melendez-Diaz did not present a live witness to review or verify the results contained in the affidavits. See Melendez-Diaz, 557 U.S. at ___, 129 S.Ct. at 2536, 174 L.Ed.2d at 326 ("[The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.") (quoting Crawford, 541 U.S. at 61-62, 124 S.Ct. at 1354, 158 L.Ed.2d at 177). In contrast, in Brown, the laboratory's original DNA report contained no conclusions, interpretations, or comparisons; therefore, according to the appellate court, it was "raw data ... in the form of nonidentifying graphical information." Brown, 890 N.Y.S.2d 415, 918 N.E.2d at 931 (internal citation and quotation marks omitted). The analyst herself testified that "she had personally examined the [laboratory] file; she interpreted the profile of data represented in the machine-generated graphs; and she made the critical determination linking the defendant to the crime;" she further testified that she was familiar with the laboratory's procedures and protocols. Id. As the data presented in Brown was merely "raw data" and the prosecution provided live witness testimony interpreting the report, the testimony was admissible. Brown, 890 N.Y.S.2d 415, 918 N.E.2d at 932. The
Bullcoming, the Supreme Court's most recent Confrontation Clause gift,
Although the record extract is not clear as to what exact data the 1985 serology report included, Dr. Luttman's testimony and the serology report itself resembles closely the factual situation in Brown, and is distinguishable readily from the factual scenarios in Melendez-Diaz and Bullcoming. First, as in Brown, and unlike Melendez-Diaz, the State here did not provide merely a "bare-bones" statement without live testimony, instead the state called a witness, Dr. Luttman, to testify regarding her interpretation of the 1985 serology test. Second, similar to the expert in Brown, who testified regarding the accuracy of a DNA report based on her knowledge and expertise, Dr. Luttman testified that she reviewed personally the report and could state, "within a reasonable degree of scientific certainty," that semen and sperm were present on the physical evidence obtained from the PERK because, in her experience, "[s]perm cells have a very distinct shape that's very different from other cells ... when you see
In 2002, eighteen years after the alleged rape, FBI personnel conducted chemical tests on the evidence obtained from the PERK. The FBI lab created a DNA profile from the biological evidence, and matched the profile to Derr's DNA profile then-existing in the CODIS database. In order to confirm this match, FBI personnel performed DNA testing on a buccal swab (taken from Derr in 2004). Dr. Luttman testified that her role as supervisor of the 2004 testing was "to do the comparisons between known samples and question samples, to draw all the conclusions, to do the statistical calculations and write the report in this case."
In Bullcoming, supra, the Supreme Court recognized that surrogate testimony may violate the Confrontation Clause when the surrogate is ill-equipped to convey what the actual analyst knew or observed, and therefore is unable to attest to any lapses or lies on the analyst's part. See Bullcoming, ___ U.S. at ___, 131 S.Ct. at ___, 180 L.Ed.2d at 622. Of particular importance in Bullcoming, the certifying analyst was put on unpaid leave prior to the trial and the testifying expert witness did not know the reason for the analyst being put on unpaid leave. See id.
The Majority opinion in the present case discounts the 2004 test quickly, noting that Dr. Luttman's team relied on the results of the 2002 test (which I agree was inadmissible). See Maj. Op. at 250-51, 29 A.3d at 557-58.
Further, in another pre-Bullcoming, post-Melendez-Diaz case, Smith v. State, 28 So.3d 838, 853 (Fla.2009), the defendant asserted that his confrontation rights were violated when the prosecution failed to produce the biologist that performed the DNA sample taken from Smith and the sample obtained from the victim's clothing. The prosecution instead called the FBI supervisor who interpreted the results by evaluating the "raw test results" and compared those results to the sample from the victim's clothing; the supervisor also authored the official report that stated the two samples matched. See Smith, 28 So.3d at 854. The appellate court found this situation distinguishable from Melendez-Diaz because "the FBI team supervisor who interpreted the data, formulated the conclusions, and prepared the report that implicated Smith in the sexual battery actually testified during trial." Smith, 28 So.3d at 855 n. 13. The critical distinction, therefore, from Melendez-Diaz is that, in Smith, the prosecution presented at trial a witness who interpreted data and formed independent conclusions from the bench work completed by analysts; when the prosecution presents a report alone or a mere recitation of the report, Melendez-Diaz controls. See id.
Because the State's expert witness in the present case observed the 2004 DNA sampling, performed the analysis of the sampling, and wrote the report that indicated that the DNA obtained from Derr matched the DNA obtained from the 1984 PERK, Melendez-Diaz does not control. The 2004 test is distinguishable further from Melendez-Diaz because Dr. Luttman actually testified at trial and stated that she interpreted the results, did statistical
I would hold, therefore, on this limited record, that Dr. Luttman was fit to testify to and answer questions (and respond to cross-examination) regarding the 1985 serology report and the 2004 DNA report. Nonetheless, Derr gets a new trial because the 2002 report, offered solely through Dr. Luttman, was inadmissible.
Judge BATTAGLIA authorizes me to state that she joins the views expressed here.
Crawford, 541 U.S. at 51, 124 S.Ct. at 1364, 158 L.Ed.2d at 193. Thus, hearsay and the Confrontation Clause present two separate evidentiary hurdles which must both be satisfied before a piece of evidence may be properly admissible at trial. Because our analysis of the Confrontation Clause issue is dispositive, as it pertains to each of the three pieces of evidence discussed, we do not address the hearsay component.
Similarly, in Roberts v. United States, 916 A.2d 922, 937-39 (D.C.2007), the court held that the Confrontation Clause is violated when a DNA expert testifies based on DNA test results that were performed by a nontestifying DNA analyst.
Further, the Supreme Court of the United States has vacated and remanded two State court opinions that allowed the surrogate testimony of an expert who did not perform the actual testing. In State v. Crager, 116 Ohio St.3d 369, 879 N.E.2d 745, 746-48 (2007), the Ohio Supreme Court upheld a ruling of the trial court that allowed testimony regarding the results of a DNA test by an expert who had engaged in a "technical review" of the work of the analyst who had actually performed the blood test and generated the DNA profile. The trial court admitted the reports under the business records exception to the hearsay rule, a rationale that was expressly discredited in Melendez. Compare Crager, 879 N.E.2d at 751, with Melendez, 557 U.S. at ___, 129 S.Ct. at 2539-40, 174 L.Ed.2d at 329. Crager was vacated and remanded by the Supreme Court without a written opinion. Crager v. Ohio, ___ U.S. ___, 129 S.Ct. 2856, 174 L.Ed.2d 598 (2009). Similarly, in People v. Barba, No. B185940, 2007 WL 4125230, *1, *6-7, 2007 Cal.App. Unpub. LEXIS 9390, at *3, *20-21 (Cal.Ct.App. Nov. 21, 2007), the lab director for a DNA lab testified as to the procedures and results of testing performed by another analyst, and the California Court of Appeal for the Second District upheld the admission of the evidence against a Confrontation Clause challenge. The defendant appealed the decision of the California Court of Appeal for the Second District to the Supreme Court of California, but the petition for review was denied. People v. Barba, No. S 159091, 2008 Cal. LEXIS 2502 (Cal. Feb. 27, 2008). The defendant then petitioned for writ of certiorari to the Supreme Court of the United States; the petition was granted, and the judgment was vacated and the case remanded to the California Court of Appeal for the Second District in light of Melendez. Barba v. California, ___ U.S. ___, 129 S.Ct. 2857, 174 L.Ed.2d 599 (2009). On remand to the California Court of Appeal for the Second District, the court found that Melendez was distinguishable from the facts in Barba, and thus the court held, once again, that the Confrontation Clause had not been violated. People v. Barba, No. B185940, 2010 WL 571950, at *10, 2010 Cal.App. Unpub. LEXIS 1279, at *33 (Cal.Ct.App. Feb. 19, 2010). The defendant again appealed to the Supreme Court of California, which denied the petition for review without prejudice. People v. Barba, No. S 181388, 2010 Cal. LEXIS 4428 (Cal. May 12, 2010). The defendant then petitioned for writ of certiorari to the United States Supreme Court, which granted the petition, vacated the judgment, and remanded the case to the California Court of Appeal for the Second Circuit in light of Bullcoming. Barba v. California, ___ U.S. ___, 131 S.Ct. 3088, 180 L.Ed.2d 911 (2011). In State v. Dilboy, 160 N.H. 135, 999 A.2d 1092, 1104 (2010), the Supreme Court of New Hampshire held that the Confrontation Clause was not violated when an expert reviewed the test results of other analysts and testified as to the findings of those tests. The United States Supreme Court subsequently vacated and remanded for further consideration in light of Bullcoming. Dilboy v. New Hampshire, ___ U.S. ___, 131 S.Ct. 3089, 180 L.Ed.2d 911 (2011).
The Maryland analog to Fed.R.Evid. 703 is Md. Rule 5-703, which was derived from Fed.R.Evid. 703.
Professor Richard D. Friedman, Initial thoughts on Williams, The Confrontation Blog (July 9, 2011, 2:26 AM), http://confrontation right.blogspot.com/. In applying this principle to a pending United States Supreme Court case, Friedman continued:
Id. In this way, it is clear that a DNA profile is submitted for its truth, and therefore cannot be considered as mere support on which "an expert bases an opinion or inference" under Md. Rule 5-703, but rather, must be considered a testimonial statement that is admitted as evidence of the truth of the matter asserted. This is because of the
Id.
Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2722, 180 L.Ed.2d at 628-29 (internal citations omitted). Although the Majority opinion in Bullcoming did not discuss expressly these factual situations, and Justice Sotomayor declined to elaborate on the strength of these specific arguments for admissibility, the limited nature of the holding in Bullcoming allows for at least the possibility of the admission of both Dr. Luttman's testimony regarding the 1985 and 2004 reports and the reports themselves in the present case. As discussed in further detail infra, Dr. Luttman had a personal connection to the 2004 testing through her role as a supervisor, gave her expert opinion about "underlying testimonial reports" that were not necessarily admissible (i.e., the 2002 report) and interpreted and compared the raw data from the 1985 report.
State v. Roach, 2011 WL 3241467, 2011 N.J.Super. Unpub. LEXIS 2071 (App.Div. 1 August 2011).
As we explained in Rollins v. State, 392 Md. 455, 505, 897 A.2d 821, 850 (2006), this rule is a well-settled, back-door hearsay exception: "Federal courts and a majority of state courts permit an expert witness to express an opinion that is based, in part, on hearsay of a kind customarily relied on.... This rule has been long accepted in Maryland." (Internal citations and quotation marks omitted.). While "the proffered evidence [may not] meet the definition of hearsay, it [may] be admitted `for the limited purpose of explaining the basis for the expert's opinion.'" Id. (internal citations omitted).
Although Rollins is a pre-Melendez-Diaz case, both state and federal courts have applied their evidence rules analogous to Md. Rule 5-703 in the post-Melendez-Diaz landscape. See, e.g., Morris v. United States, 2010 WL 1752030, at *3, 2010 U.S. Dist. LEXIS 53583, at *9 (D.S.D. 29 April 2010) ("Melendez-Diaz did not dispose of Federal Rule of Evidence 703."); People v. Johnson, 406 Ill.App.3d 114, 346 Ill.Dec. 264, 940 N.E.2d 264 (2010) (that Melendez-Diaz, does not abrogate Illinois Rule 703).
In reaching its conclusion, that some, but not all, of the expert's testimony was admissible, the appellate court applied three established principles of the rules of evidence: (1) machine-generated data and printouts are not statements and thus are not hearsay (and, ipso facto, the data is not "testimonial"); (2) expert witnesses may rely on and review "work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions"; and (3) expert witnesses are not permitted to "act as a conduit for repeating testimonial hearsay." Blazier, 69 M.J. at 224-25. Therefore, the federal appeals court concluded, the expert's testimony that explained and analyzed the documents was admissible because it was not hearsay; the expert's conclusions were his own, based on his training, education, and experience. See Blazier, 69 M.J. at 225-26. Portions of the expert's testimony, however, consisted of statements conveying exact language from the documents—i.e., what tests were conducted, what substances were identified, and what level of each substance was detected—such statements, the court held, were inadmissible hearsay. See Blazier 69 M.J. at 226.
As applied to the present case, Dr. Luttman relied on the work of the hospital personnel who collected the physical evidence and the FBI biologist and forensic serologist, and, based on her experiences as an FBI DNA analyst and supervisor, she came to the conclusion that the 1985 sample contained sperm and semen. Although this conclusion is the same as the conclusion that was in the report, Dr. Luttman was not acting as a "conduit for repeating testimonial hearsay."
When completed in 1985, serology tests were presumably less automated than similar tests today. Computers have revolutionized such testing, and it is likely, though not known on this record, that true "machine-produced" data was all but non-existent. Holding such tests, common in "cold" cases from the 1980s and 1990s (and earlier), to the same standards of sophisticated forensic testing methods utilized today is analogous to comparing the accuracy of a complex mathematical problem solved by slide rule in the 1980s to the same mathematical problem analyzed today with the use of a high-tech calculator. Of course, there is less human action involved in using a calculator, but that does not mean necessarily that the data is "testimonial" rather than "raw data." Likewise, there is less human action involved inherently in producing a DNA report today than there was in producing a serology report in 1985; however, the data is still "raw" despite the change in the amount of required human action.
Bullcoming, ___ U.S. at ___, 131 S.Ct. at 2713, 180 L.Ed.2d at 619 (emphasis added). By granting certiorari based on a question presented as such, the Majority in Bullcoming seemingly left open the possibility that a witness who did not perform, but did observe the test, may satisfy the defendant's right to confront accusatory witnesses.
(Emphasis added.) Even if the 2002 report is inadmissible, courts have often held that DNA testing results are "of the type reasonably relied upon by experts" in the field to draw independent conclusions. See, e.g., People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268, 277 (2010) ("[The expert witness] testified that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work."); Appleby, 221 P.3d at 552 ("[A] database and [a] statistical program are accepted sources of information generally relied on by DNA experts."); Vann v. State, 229 P.3d 197, 207 (Alaska Ct.App. 2010) ("[C]ourts have allowed DNA analysts to give their opinion of the significance of DNA test results even when those test results were obtained from testing performed by another laboratory analyst.").
Boyd, 686 F.Supp.2d at 384 (internal citations omitted). If the testing requires merely that technicians perform mechanical or ministerial tasks, the Court explained, without any indication of falsification or error, the need to call the technician is not a "constitutional necessity." See id. The Court held that as long as the testifying expert can testify in detail to the ministerial nature of the steps performed in completing the DNA testing, and to the technical accuracy of the results, the defendant's confrontation rights are not frustrated. See Boyd, 686 F.Supp.2d at 385. In any event, falsification or contamination of DNA data would result in "blank spots, but would not otherwise alter the data to form an erroneous DNA profile." People v. Brown, 13 N.Y.3d 332, 890 N.Y.S.2d 415, 918 N.E.2d 927, 932 (2009).
Dr. Luttman, as a supervisor, could testify as to the procedures and the ministerial nature of the tasks necessary to complete the DNA profile. In fact, Derr did not indicate that there was a suspected error or falsification in the results.
