Lead Opinion
OPINION OF THE COURT
On this appeal, we address whether defendant’s Sixth Amendment right to confront the witnesses against him was violated when the People introduced DNA reports into evidence, asserting that defendant’s DNA profile was found on the gun that was the subject of the charged possessory weapon offense, without producing a single witness who conducted, witnessed or supervised the laboratory’s generation of the DNA profile from the gun or defendant’s exemplar. We conclude that, under the circumstances presented here, defendant’s right to confrontation was violated.
I.
Defendant was involved in an altercation just outside of his apartment building, during which he pointed a gun at complainant. Defendant’s neighbor, the ground floor resident of the three-story, multifamily brownstone, witnessed the encounter and called the police. When the police arrived and investigated, defendant was arrested. Defendant’s neighbor advised the responding officer that she had seen defendant go into the building’s basement with something in his hand. She indicated the door to the basement was the one across from her apartment.
The officer entered the basement through a latched but unlocked door. The basement was unlit and unfurnished, with
The gun was secured and an officer from the evidence collection team took three swabs from the gun to test for the presence of DNA. The officer prepared a written request for a laboratory examination on the evidence, with defendant listed as the arrestee. This report, along with the swabs, was submitted to the Department of Forensic Biology of the New York City Office of Chief Medical Examiner (OCME), plainly stating that the specific reason for the requested analysis was “PERP HANDLED THE FIREARM.”
Using PCR (polymerase chain reaction) DNA typing, the scientific reliability of which, if performed correctly, is not in issue, the lab found the presence of a single source male DNA profile on swabs from the gun. The combination of the DNA alleles found in the sample would be expected to be found in approximately “1 in greater than 1 trillion people.” The PCR DNA typing analyzes DNA in the form of alleles that are found at the same location (locus) of the DNA on homologous (matching) chromosomes. A person has two different alleles at a particular locus. OCME tests for 15 specific short tandem repeat (STR) locations (loci) and the amelogenin locus, which is used to determine the sex origin of the sample. The STR alleles are identified by the number of core repeats present at the locus. Experienced analysts convert these numeric identifiers into a DNA profile using machine-generated raw data analyzed by a software program and the analyst’s independent manual examination which involves an editing process (see John M. Butler, Fundamentals of Forensic DNA Typing at 213 [2010]).
In this case, on February 5, 2010, analyst “CJB” completed the electropherogram that graphically depicted the peaks of the DNA analysis and a handwritten editing sheet for the DNA typing of the gun swabs and exported the 16 loci DNA profile from the gun swabs into a spreadsheet. On February 16,
Prior to trial, defendant moved to suppress the firearm. Defendant maintained that he had standing based upon a reasonable expectation of privacy both in the gun box and in the basement from which the gun was recovered, that there was no exigency permitting the warrantless search for a gun since he was already under arrest at the time of the search of the basement and that the officer did not obtain the neighbor’s consent to search the shared basement. After a suppression hearing, the court denied the motion, concluding that the neighbor had consented to the search of the basement, that defendant had no objective privacy interest in the basement and that once the officer was lawfully in the basement and “he saw the firearm it was appropriate for him to seize it.”
Defendant also moved prior to trial to either preclude the People from introducing the OCME laboratory reports certify
At trial, the People called the analyst Huyck as an expert in forensic biology and DNA analysis. She testified that she was an OCME Criminalist Level II within the Department of Forensic Biology and that the Department was predominantly responsible for examining and testing items from crime scenes for DNA analysis. When the People sought to introduce the OCME files containing the DNA laboratory reports and test results (exhibits 6A [DNA report on the gun swabs] and 6B [DNA report on the suspect’s exemplar]) as certified business records through Huyck, defense counsel conducted a voir dire examination of the witness. Huyck testified as to the stages necessary to generate a DNA profile and agreed with defense counsel’s statement that an analyst does not just “put a piece of paper in the machine and it does all of the work for you.” Rather, as Huyck explained, the sample is unpacked and subject to four stages of DNA testing: extraction (to release the DNA from any cells), quantitation (to determine how much DNA was present), amplification (to make millions of copies of the specific locations, or loci of the DNA, to be tested) and then, “running a sample on a DNA instrument.” In this final stage, the analyst uses an electrophoresis instrument and a sophisticated software program (GeneMapper ID in this case) to produce an electropherogram, which graphically depicts the peaks of the DNA analysis, and conducts an interpretive analysis to compile the numerical DNA profile that is used for comparison.
At the end of the voir dire, defendant renewed his objection to allowing the laboratory reports into evidence. He asserted that the reports were testimonial and that under Bullcoming the analysts who had performed the DNA tests had to be produced for cross-examination. The court overruled the objection and allowed the reports into evidence. The People also submitted, over defendant’s objection, the table depicting the two generated DNA profiles (exhibit 7) as 15 pairs of numbers and the XY sex determinations. While the exhibit was displayed to the jury, Huyck opined that the two obviously identical series of numbers, represented in box score form, were a match and that the source of the two DNA profiles were the gun and defendant. Huyck’s opinion as to the comparative match of the two identical DNA profiles is not at issue.
On cross-examination, Huyck testified that she had reviewed the laboratory reports “to make sure that everything looked okay and everything was signed off on by the necessary people.” Defendant then inquired about the electropherogram from
Defendant was convicted of criminal possession of a weapon in the second degree and menacing in the second degree. The Appellate Division affirmed, concluding that suppression was properly denied, with one Justice concurring in the result (
II
As a preliminary matter, defendant’s arguments concerning the warrantless search and seizure are only partially preserved. There is record support for the affirmed finding that, based on the neighbor’s conduct, the officer was authorized to search the basement (see e.g. People v Leach,
Defendant’s remaining argument is that the admission into evidence of the laboratory reports violated his Sixth Amendment right to confrontation. Preliminarily, there is no dispute that DNA evidence is powerful forensic evidence in determining either the guilt or the innocence of an accused. The DNA profile evidence in this case was used as substantive evidence to prove defendant’s guilt, as it directly linked him to the loaded gun that was found in a box in the basement. As the accused in a criminal prosecution, defendant has the right to be confronted with the witnesses “who bear testimony against him” (see Melendez-Diaz,
In Melendez-Diaz, the Court concluded that notarized certificates of forensic analysis — stating that a substance seized from the defendant was cocaine — were testimonial as the report was created to serve as evidence in a criminal proceeding. The Court determined that the certificates were “functionally
In Bullcoming, the Court, noting that Crawford in 2004 was a pathmarking decision, found an unsworn laboratory report certifying that the defendant’s blood alcohol level was above the legal threshold for aggravated DWI to be testimonial. At trial, the prosecution did not call the analyst who performed the gas chromatograph test, which produced a printout of the test results of the defendant’s blood alcohol content. Instead, the prosecution introduced into evidence the laboratory report as a business record and used a different trained analyst, one who was familiar with the testing procedures and was an administrator of the statewide blood and alcohol programs, to testify as to the machine-generated results. The expert witness, similar to Huyck, was required as part of his job responsibility to provide courtroom testimony and had reviewed the reported test results, but had not supervised, conducted or observed the testing that produced the results upon which he relied for his opinion. The same scenario that occurred in Bull-coming occurred in this case, to wit, a witness who never tested the forensic evidence that incriminated an accused defendant was asserting that the nontestifying analyst’s testing results were truthful.
The Court rejected the argument that the “surrogate testimony” provided by the expert at trial was adequate to satisfy the defendant’s right to confrontation (see
In finding that the laboratory report was testimonial on the basis that it was prepared by the testing analysts for the purpose of establishing some fact in a criminal proceeding, the Court emphasized that the defendant’s blood was provided by police to the state’s Department of Health laboratory, which was required by law to assist in police investigations. Further, the testing analyst had prepared a certificate concerning the blood alcohol content results in a signed but unsworn document, which was deemed sufficiently formalized (see
Recently, in Williams v Illinois (567 US —,
The plurality took two paths to its conclusion that the expert’s opinion of a DNA match between two profiles did not violate the Confrontation Clause. First, it concluded that the fact that the source of the DNA profile was found on the semen from the victim’s vaginal swabs was not a fact admitted into evidence, as the lab report setting forth this information had not been admitted, and the expert’s reference to that fact was not offered for the truth of the matter asserted therein. Pivot-
On its second path, the plurality used a primary purpose test narrower than the one stated in Bullcoming. It observed that, even if the expert’s hearsay testimony as to the source of the DNA had been offered for the truth of the matter asserted, it was not a testimonial statement that the Confrontation Clause was originally understood to encompass (see 567 US at —,
Justice Thomas concurred in the result, but nonetheless agreed with the four dissenting Justices that the DNA reports in Williams were offered into evidence for their truth, and that the plurality’s narrow primary purpose test, requiring that
The remaining four Justices dissented, finding the case controlled by Bullcoming. The dissent would have found that the DNA reports were admitted into evidence for their truth, that the reports were testimonial and that the narrow primary purpose test used by the plurality was not grounded in the constitutional text. In short, an analyst who performed the DNA tests was required to testify (see 567 US at —, —,
III.
For our part, we have deemed the primary purpose test essential to determining whether particular evidence is testimonial hearsay requiring the declarant to be a live witness at trial. “[A] statement will be treated as testimonial only if it was ‘procured with a primary purpose of creating an out-of-court substitute for trial testimony’ ” (People v Pealer,
Here, there was a criminal action pending against defendant, and the gun, found in the basement of a multifamily dwelling where defendant lived, was evidence seized by police for that prosecution. Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a
The facts of this case fit into even the narrow primary purpose test articulated by the Williams plurality.
IV
By finding the report of blood alcohol content results from a gas chromatograph to be testimonial, Bullcoming demands that where the primary purpose test has been satisfied, forensic reports offered into evidence for their truth, as here, must be assessed for their admissibility as those reports are not covered by any categorical exception to testimonial hearsay. In this regard, although we have previously held that certain DNA laboratory reports were raw data or machine-generated (see People v Meekins,
In Brown, when we characterized the DNA evidence as “machine-generated graphs,” we referred to the electropherogram. The testifying witness, an OCME Level IV Criminalist who had supervised the generation of the DNA profile from the defendant’s exemplar, had personally examined and independently interpreted the data (see
We interpret our prior decisions in Brown and Meekins informed by the binding precedent of the Supreme Court in this Sixth Amendment context. The record in this particular case perforce informs the present decision as to the nature of the testimonial evidence of the DNA profiles. In contrast, the dissent, by apparently discounting the continued viability of the Bullcoming and Melendez-Diaz decisions, notwithstanding that the 'Williams plurality did not overrule its own precedent, unduly relies on core factors that informed the dissents in those cases in defining testimonial evidence when dealing with forensic reports. The multiple factors set forth in those dissents — especially laboratory workload, the professional detachment of laboratory analysts and the analysts’ objective recording of facts pursuant to scientific protocols — are once again touted in the dissent in this case.
We will not indulge in the science fiction that DNA evidence is merely machine-generated, a concept that reduces DNA testing to an automated exercise requiring no skill set or application of expertise or judgment. Likewise, the sophisticated software programs require trained analysts who engage in skilled interpretation of the data from the electrophoresis instrument, using the computer software with its color images, particularly as to the peaks in the graphs, to construct the DNA profile. Even Huyck conceded that the testing and reviewing analysts independently make these necessary and qualitative judgments by applying the laboratory’s thresholds when using the software.
As Huyck testified, every person who prepared the information in the laboratory reports had a business duty to do so truthfully and accurately. It is incongruous to our state’s mission to foster scientific excellence in our public DNA crime laboratories to suggest that the recording of the test results in the reports of accredited labs is not an entry of scientific certainty because of the absence of a hypertechnical requirement of formalism. Under these circumstances, even though the DNA profiles were not provided under oath, they were obviously facts prepared to be used as critical evidence at a criminal trial and are sufficiently formal to be considered testimonial (see e.g. Goldstein,
V
The People raise the same concern previously presented to the United States Supreme Court in its Crawford cases dealing with the admission into evidence of forensic science laboratory reports — given OCME’s team and rotation procedures, practical difficulties will be presented if they are required to produce each analyst who was involved in the DNA testing. The Court has not accepted these concerns as a basis for categorically exempting forensic evidence as testimonial hearsay and dispensing with a defendant’s constitutional right to confrontation (see Bullcoming,
More succinctly, nothing in this record supports the conclusion that the analysts involved in the preliminary testing stages, specifically, the extraction, quantitation or amplification stages, are necessary witnesses. As this was a 16 loci DNA profile from a single source, any hypothetical missteps of the analysts in the multiple stages preliminary to the DNA typing at the electrophoresis stage would result in either no DNA profile or an incomplete DNA profile, or one readily inconsistent with a single source 16 loci profile.
Notably, courts around the country have grappled with the application of Bullcoming and Williams vis-á-vis DNA evidence and have sought to satisfy a defendant’s right to confrontation while sensibly placing some limit on the number of analysts who are necessary to testify at trial (see e.g. State v Roach, 219 NJ 58, 79, 95 A3d 683, 695-696 [2014] [observing that an independent reviewer trained in the testing procedures and knowledgeable about the laboratory’s processes can testify based on his or her independent review of the raw DNA data and the conclusions drawn from that data; “(h)owever, the testimony must be provided by a truly independent and qualified reviewer of the underlying data and report, and the witness may not merely parrot the findings of another”]; Speers v State,
Finally, the dissent’s concern about the admissibility of redacted autopsy reports, specifically ones omitting the opinions as to the cause and manner of death, is misplaced. We are not retreating from our prior decisions holding that, given the primary purpose of a medical examiner in conducting autopsies, such redacted reports — “a contemporaneous, objective account of observable facts that [do] not link the commission of the crime to a particular person” — are not testimonial (Pealer,
Accordingly, the order of the Appellate Division should be reversed, and a new trial ordered.
Notes
. The lab casefile also contains a DNA Profile Evaluation Form reflecting that Huyck checked the generated profile against the local OCME database, which is not to be confused with the national or state CODIS (Combined DNA Index System) database and which produced no match. The form also indicates that the DNA profile from the gun was reviewed not by Huyck but by another analyst who did an evaluation of the associated data and the positive and negative controls.
. The premise that DNA typing and the generation of the DNA profile is software driven and needs no independent manual evaluation by the trained analysts is both unsupported by the record, including Huyck’s testimony and the laboratory reports detailing the editing process attending the generation of the DNA profiles, and scientifically unsound. This meritless premise is also quite contrary to standard laboratory protocols including OCME’s protocols for the GeneMapper ID used in this case. Any claim that the machine-generated results from the gas chromatograph test admitted into
. The lab reports for defendant’s exemplar state that there was an electrophoresis failure involving a dropout of alleles in all samples (including defendant’s exemplar) at the same loci so, for quality control, the samples were all reamplified and run again in the electrophoresis instrument in order to generate the DNA profile. This may explain why there were two more analysts used for defendant’s exemplar.
. Contrary to the position taken by the dissent, this case is not analogous to Williams, or Brown for that matter, unless one eschews the pivotal fact that defendant was not only an identified suspect, but was charged with the possession of the very gun that the lab was subsequently asked to test. And, unlike Williams, the reports of the DNA profiles were admitted into evidence for their truth. Further, the plurality in Williams formulated a narrow primary purpose test for testimonial hearsay that would include this case, and conspicuously did not categorically exempt DNA laboratory reports from the Confrontation Clause. Although Justice Breyer, in his concurring opinion, discussed the possible solution of a presumptive exception for DNA reports, it was conditioned on the ability to allow the defendant to call the analysts on his or her own behalf, a proposal that might prove as onerous as an “all analysts” rule.
. The laboratory report in Melendez-Diaz was from the “State Laboratory Institute, a division of the Massachusetts Department of Public Health” (see
. To the extent the dissent supposes that DNA typing does not involve the independent analysis of a trained expert, we note that Justice Breyer’s concurrence in Williams, relied upon by the dissent, cites the following description which proves otherwise:
“Using the proper computer software, we properly transcribed the data produced by the electropherogram into a report. We applied the proper criteria to review the computer determinations of what the allele values are at each of the chromosomal locations analyzed. We properly documented those allele values to produce the DNA profile” (567 US at —,132 S Ct at 2254 [Appendix] [internal quotation marks omitted]).
. The present case involved a single source 16 loci DNA profile. This record does not provide a basis to review issues which may arise in the more complex interpretation of DNA profiles from mixtures or in high sensitivity DNA analysis. We note that the amicus curiae brief by the Innocence Network
. As a practical matter, in this case, “shoddy or dishonest work” (see Williams, 567 US at —,
. There is also the option that, when a prosecution approaches trial, a single analyst, who was not involved in the original tests, may participate in the generation of DNA profiles during a retest of the samples, if same are available.
. The dissent would hold that, if the DNA profiles are testimonial, every analyst involved in generating the profiles must be produced for cross-examination (see dissenting op at 336). This sweeping conclusion is reached without citation and, as noted above, is inconsistent with the weight of authority, including the Williams plurality opinion.
Dissenting Opinion
(dissenting). We confront the abyss created by the prospect of applying the Supreme Court’s line of Sixth Amendment cases in Crawford v Washington (
I.
The facts in the record of this case are essentially the same as those in People v Brown (
New York City’s Office of Chief Medical Examiner (OCME) is not a law enforcement agency; it is part of New York City’s Department of Health and Mental Hygiene (see id. at 340; People v Washington,
In order to ensure accuracy and reliability in its results, OCME runs all of those tests twice. Different analysts run the duplicate tests. Other internal controls, such as an additional observer, ensure that analysts are testing the correct sample and following appropriate procedures. Accordingly, many
Volume is an issue. OCME has approximately 150 analysts working in its laboratory on more than 8,000 cases per year, some cases with multiple items to test, and accordingly “it would be impossible for” a single analyst to perform the entire process on every sample. In the past, budget constraints and the sheer volume of samples made it necessary for OCME to subcontract out certain work to independent laboratories (see Brown,
A separate Quality Assurance Department maintains the instruments in OCME’s laboratory. Employees of that Department also ensure that “the chemicals and the instruments used” in the laboratory “are functioning as they should.”
OCME followed this procedure in compiling the DNA profiles at issue here. On January 17, 2010, after defendant was arrested, a police officer with the evidence collection team swabbed a gun recovered in the basement of the building in which defendant lived in order to test for DNA. The officer packaged, sealed, and vouchered three separate samples and sent them to OCME for DNA analysis. That officer testified at trial.
On January 20, 2010, OCME received the three separately-packaged swabs taken from the gun. Melissa Huyck, an OCME Criminalist assigned to the Department of Forensic Biology, “opened up the envelopes that the three swabs were in and . . . cut a portion of each swab and put it into a tube.”
After Huyck unpacked the swabs, the samples underwent the remaining four steps in OCME’s typical process to develop a DNA profile. Huyck did not perform or observe any of the four tests, which were done by at least six other analysts. The resulting DNA profile — the particular “string of numbers”— belonged to an unknown male, “Male Donor A,” and would be expected to be found in approximately one in greater than one trillion people. Huyck’s Laboratory Report (she signed as “Analyst”) setting forth these results is dated February 16, 2010. In it she notes that the results in this case do not match
On September 2, 2010, after the determination that there was no match in the database, the same officer obtained a DNA sample from defendant by swabbing the inside of his cheek; this is known as a buccal swab. This occurred more than seven months after the swabbing of the gun and more than six months after the DNA profile from the gun was completed. The officer vouchered the swab and sent it to OCME for DNA analysis. As noted above, this officer testified at trial.
OCME received defendant’s exemplar on September 4, 2010. Approximately 10 analysts processed and tested defendant’s exemplar in the same manner described above. As with the testing of the gun swabs, Huyck did not perform or observe any of the tests conducted on defendant’s exemplar.
Critically, Huyck did compare the results of the DNA profiles developed from the gun and from defendant’s exemplar. As with the gun swab profile comparison, a “DNA PROFILE EVALUATION FORM” was prepared and again Huyck signed the form as the “Interpreting Analyst.” This form notes the match between defendant’s exemplar and the DNA profile from the gun swabs. Huyck’s comparison was not cursory; she did “not just sign[ ] the report.” Instead, she conducted an independent assessment by “looking at all of the data and making sure that [she] agree[d]” with the analysis and conclusions. She “look[ed] at the actual data” and “reviewed the results for both cases once the results were compiled.” She emphasized that she “reviewed and looked at the data for both cases.” She also reviewed the results of the tests to confirm the analysts’ editing decisions and that the analysts followed the required internal controls.
II.
The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him [or her].” In Crawford, the Supreme Court held that “testimonial statements of witnesses absent from trial” may be “admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” (
In a trilogy of cases, the Supreme Court applied Crawford to the admission of forensic evidence. In Melendez-Diaz, the defendant was charged with distributing and trafficking in cocaine (see
Two years later, the Supreme Court decided Bullcoming. There, the “[principal evidence against [the defendant] was a forensic laboratory report certifying that [his] blood-alcohol concentration [(BAC)] was well above the threshold for aggravated [driving while intoxicated]” (
The Court held that “surrogate testimony . . . does not meet the constitutional requirement. The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist” (id. at 652).
“Critically, the report was introduced at trial for the substantive purpose of proving the truth of the matter asserted by its out-of-court author — namely, that the defendant had a blood-alcohol level of 0.21. This was the central fact in question at the defendant’s trial, and it was dispositive of his guilt” (Williams, 567 US at —,132 S Ct at 2233 ).
In dissent, Justice Kennedy expressed alarm that “[t]he persistent ambiguities in the Court’s approach are symptomatic of a rule not amenable to sensible applications” (Bullcoming,
Williams, the third case, and the one most analogous to this one, resulted in a fractured decision in which five Justices concluded that the defendant’s Sixth Amendment rights had not been violated. In the defendant’s bench trial for rape, “the prosecution called an expert who testified that a DNA profile
The plurality concluded that “this form of expert testimony [did] not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted” (567 US at —,
The plurality found it “significant that in many labs, numerous technicians work on each DNA profile” (567 US at —,
Justice Thomas concurred in the judgment “because Cell-mark’s statements lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause” (567 US at —,
Williams, which as a practical matter did little more than affirm the defendant’s conviction, resulted in a plurality opinion, two concurrences, and a dissent. Not surprisingly, this Court, post -Williams, has adhered to its well-established primary purpose test for determining whether the challenged evidence is “testimonial.”
We addressed the admissibility of DNA reports squarely in Brown, which was decided after Melendez-Diaz but before Bull-coming. There, a hospital prepared a rape kit and sent it to OCME, and OCME sent it on to Bode Technology, a fully-accredited private laboratory, for testing. “Bode isolated a male DNA specimen from the rape kit, reflecting a string of numbers of all 13 areas of DNA. Bode further produced a DNA report containing machine-generated raw data, graphs and charts of the male specimen’s DNA characteristics” (Brown,
At trial, the People called a forensic biologist/criminalist who testified that “she supervised other criminalists at OCME, reviewed their reports and findings, and oversaw quality control management to ensure the laboratory’s procedures met appropriate standards” (id. at 337). “The witness then testified in depth as to the characteristics of DNA and about the testing protocols for all accredited crime laboratories in the United States, including OCME and Bode” (id.). The defendant objected to the People’s motion to “introduce the DNA report, containing a profile of the specimen taken from the victim’s rape kit, as a business record” (id.). “The Bode documents . . . contained] graphs, charts, a description of the process used to test the DNA and a statement identifying whether the profile
On appeal, we framed the issue as “whether [the] defendant’s Sixth Amendment right to confrontation was violated by the introduction of a DNA report processed by a subcontractor laboratory to [OCME] through the testimony of a forensic biologist from OCME” (id. at 335). Noting that our conclusion was “consistent with Melendez-Diaz,” we held that the report was nontestimonial and, thus, “its admission did not constitute a Crawford violation” (id. at 335, 341).
In reaching this conclusion, we applied a four-part primary purpose test: (1) whether the agency that produced the record is independent of law enforcement; (2) whether it reflects objective facts at the time of their recording; (3) whether the report has been biased in favor of law enforcement; and (4) whether the report accused the defendant by directly linking him or her to the crime (see id. at 339-340, citing People v Freycinet,
“unlike Melendez-Diaz, the People called the forensic biologist who conducted the actual analysis at issue, linking [the] defendant’s DNA to the profile found in the victim’s rape kit. She testified that she had personally examined the Bode file; she interpreted the profile of the data represented in the machine-generated graphs; and she made the critical determination linking [the] defendant to this crime” {Brown,13 NY3d at 340 ).
We determined that the Bode report “was not ‘testimonial’ under such circumstances because it consisted of merely
Our decision in Brown built on our decisions in People v Rawlins (
The OCME expert testified that OCME technicians reviewed the file, edited the data by weaning out peaks that might not be DNA, and uploaded the profile into a database of existing profiles. After uploading the profile, the Division of Criminal Justice Services notified OCME that the profile matched the defendant’s DNA. OCME then “made sure that the two DNA profilés were the same” (id. at 145). At trial, the OCME expert “gave her opinion that the DNA profiles from the rape kit were the same as [the] defendant’s” (id.). The trial court admitted “a consolidated file containing both labs’ reports as [OCME’s] business records” (id. at 146).
We concluded that the DNA data generated by the private laboratory was not testimonial because “the report in question contained raw data ... in the form of nonidentifying graphical information” (id. at 158-159). Such “graphical DNA test results, standing alone, shed no light on the guilt of the ac
By contrast, in Rawlins, we concluded that the latent fingerprint reports at issue were testimonial because they were “inherently accusatory and offered to prove an essential element of the crimes charged” (id. at 157). In effect, the missing author “was ‘testifying’ through his reports that, in his opinion, [the] defendant [was] the same person who committed the burglaries” and, thus, such reports — “which compare unknown latent prints from the crime with fingerprints from a known individual — fit the classic definition of a weaker substitute for live testimony at trial” (id. [internal quotation marks and citation omitted]). As the Court noted, “our task in each case must be to evaluate whether a statement is properly viewed as a surrogate for accusatory in-court testimony” (id. at 151).
In Freycinet, we relied on Rawlins and Meekins in finding that a redacted autopsy report was not testimonial under Crawford (see Freycinet,
After Bullcoming and Williams were decided, we refused to retreat from our precedent in Rawlins, Meekins, Freycinet, and Brown. Referencing those cases, we rejected the notion “that Melendez-Diaz pronounced a shift in Confrontation Clause analysis that might call our precedent into question” (Pealer,
After reaffirming our prior holdings, we applied the four-part primary purpose test articulated in Brown and held that “records pertaining to the routine inspection, maintenance and calibration of breathalyzer machines . . . are nontestimonial . . . [and] are not subject to the Confrontation Clause requirements set forth in Crawford” (id. at 451). We found it “significant that, as with an autopsy report or a graphical DNA report, and unlike the certification of the accused’s actual [BAC] in Bullcoming, the breathalyzer testing certificates do not directly inculpate [the] defendant or prove an essential element of the charges against him [or her]” (id. at 455). The records at issue “simply reflected objective facts that were observed at the time of their recording in order to establish that the breathalyzer would produce accurate results, rather than to prove some past event” (id.).
The Appellate Division has similarly concluded, post-Williams, that presenting the expert that “conducted the critical analysis ... by comparing the DNA profiles derived from the crime scene evidence to the defendant’s DNA profile and concluding that all of the profiles matched” is sufficient to protect a defendant’s Sixth Amendment right to confrontation even if that expert “lacked firsthand knowledge of the testing of each item of evidence” (People v Washington,
III.
There are two issues before us: first, whether the DNA profiles entered into evidence were testimonial; and second, whether the witness Huyck conducted the critical analysis in comparing the DNA profiles. I disagree with the majority’s
The majority frames the first issue as whether “the laboratory reports as to the DNA profile generated from the evidence submitted to the laboratory by the police in a pending criminal case were testimonial,” thereby implicating defendant’s Confrontation Clause rights (majority op at 308). Answering this question requires application of our four-part primary purpose test.
The majority focuses primarily on three of the four Brown factors and concludes that those “laboratory reports as to the DNA profile” were prepared for the primary purpose of creating an out-of-court substitute for trial testimony (majority op at 307-308 [“Swabs from the gun were then tested by an accredited public DNA crime laboratory with the primary (truly, the sole) purpose of proving a particular fact in a criminal proceeding — that defendant possessed the gun and committed the crime for which he was charged”]). While purporting to apply our primary purpose test, the majority in fact opts for the reasoning set forth in the Williams dissent: informed by that analysis, the majority reaches the same result — at least one analyst must testify (see Williams, 567 US at — n 4,
Independent of Law Enforcement
With respect to the first factor, it is settled that OCME, the agency that produced the reports, is independent of law enforcement. This Court concluded as much in Brown: “OCME and [the independent lab] are not law enforcement entities; they are scientific laboratories that work independently from the District Attorney and New York City Police Department” (
As to the second factor, the majority appears to take issue with whether the DNA report “reflects objective facts at the time of their recording” (id. at 339). The majority emphasizes that the DNA reports here, perhaps unlike the machine-generated graphs in Brown, contained “editing tables . . . compiled during [the] electrophoresis” processes of both the gun swabs and defendant’s exemplar (majority op at 311-312). Such emphasis on “editing” is misplaced given our conclusion in Meekins that the at-issue reports were not testimonial even though OCME technicians “ ‘edit[ed] . . . the data’ — or, interpreted the graphical data by ‘wean[ing] out what peaks might not be DNA, because there are times that peaks will show up in the data that are not actually . . . DNA alleles or DNA peaks’ ” (
There is no reason to conclude that the process for creating the DNA profile at issue in this case, and the materials generated as a result, was in any relevant way different than that considered by this Court in Brown and Meekins. It is identical to the process detailed in the appendix to Justice Breyer’s concurrence in Williams. The same graphs and charts making up the DNA profiles at issue in those cases make up the OCME records here, namely objective facts in the form of a “graphical DNA report that d[oes] not explicitly tie the accused to a crime” (Pealer,
Law Enforcement Bias
The majority’s most significant concern seems to fit under the “biased in favor of law enforcement” factor. The majority states: “the original DNA profiles in Brown and Meekins would not be considered testimonial hearsay as they do not satisfy the Williams primary purpose test” (majority op at 310). The majority continues: “The profiles, like those in Williams, were generated from rape kits by private laboratories when the suspect was unknown and the defendant was later identified on a ‘cold hit’ from the CODIS database” (id.).
The majority also believes compelling the fact that there was an identified “perp” who was noted on certain materials in the
As noted above, OCME is not affiliated with any law enforcement agency but rather with the Department of Health. It is impossible to see how as a constitutional matter, protection of defendant’s Sixth Amendment rights hinges on whether, because of budget or backlog, the testing was subcontracted to a private laboratory (see Brown,
The “cold hit” aspect of those prior cases, even if relevant to any constitutional analysis, is easily addressed. In Meekins, this Court noted that OCME’s file admitted into evidence contained “the work of technicians” from that government office who had contemporaneous notice that the defendant was a suspect (id. at 160). Analysts working in the lab in that case “knew or had every reason to know (because they were working on a rape kit) that their findings could generate results
The facts of this case certainly rebut any suggestion that the report was — or could have been — biased toward law enforcement. The DNA profile from the gun was generated prior to the time any DNA exemplar profile was created for the defendant. In fact, it was generated more than six months prior to the buccal swab being taken from defendant and then immediately run against a database of profiles (see Williams, 567 US at —,
Accusation by Direct Link to the Crime
As to whether the report at issue accuses the defendant by directly linking him to the crime, the majority notes that “[t]he fact that defendant’s DNA profile was found on the gun was established by testimonial hearsay in the laboratory report” (majority op at 308-309). This is not accurate. As was the case in Brown and Meekins, the DNA profile did not “accuse [ ] . . . defendant by directly linking him ... to the crime” (Brown,
Similarly, the DNA profiles here are not inherently accusatory
Proper application of our four-part “primary purpose” test clearly establishes that the DNA profiles entered into evidence here, like the DNA profiles admitted into evidence in Brown and Meekins, were not testimonial. Accordingly, no Sixth Amendment violation occurred.
IV.
If we find that the DNA profiles themselves are testimonial, that constitutional violation could not be cured by Huyck — the analysts must testify. Whether Huyck provided the critical link between the DNA profiles or improperly relied upon the work of others is a separate issue.
The majority, however, after concluding that the DNA profiles are testimonial, goes on to fault the Huyck testimony, analogizing her role to the witness in Bullcoming. In that case the report concluded that the defendant had the offending BAC and the issue was whether the testifying witness had reached an independent opinion as to that fact. The analogy to this case would be the DNA comparison reports or evaluations — but those were initialed by Huyck as “Interpreting Analyst” and so admission of the reports was harmless (see n 3, supra).
In Brown, the forensic biologist/criminalist “compared [the] defendant’s DNA characteristics to the specimen from the victim’s rape kit,” which was prepared by Bode, the independent laboratory, and, “[biased upon this analysis, she determined that the profiles were a match occurring in one out of one trillion males” (
There is no support for the suggestion that the OCME forensic biologist/criminalist in Brown performed a more active review of the underlying materials than Huyck did here. In this case, as in Brown, Huyck examined the data in the file and the DNA profiles in reaching her “independent” conclusion that the profiles matched. Contrary to the majority’s assertion, Huyck did not simply “parrot” other analysts’ findings (majority op at 309). Rather, like the forensic biologist/criminalist in Brown, Huyck testified that she personally examined the OCME file, she interpreted the data represented in the machine-generated graphs, and she made the critical determination linking defendant to the gun. Huyck signed the Laboratory Report concerning the gun swabs, dated February 16, 2010, as the Analyst. The DNA Profile Evaluation Form prepared at approximately the same time lists Huyck as both the preparer and the Interpreting Analyst. Huyck was also the Interpreting Analyst on the DNA Profile Evaluation Form prepared for the buccal swab results. With respect to the testifying witnesses’ roles in the process and review, the facts in Brown are indistinguishable from this case. Indeed, from the record described above it appears Huyck played a more active role here than did the testifying witness in Brown (see Part I, supra at 316-319). Huyck provided the critical analysis linking the two DNA profiles in the exact manner done in Brown and Pealer and to conclude otherwise is to ignore the substantial record evidence documenting her role.
V
In abandoning the reasoning of this Court’s precedent, the majority now fashions a new rule: “where the laboratory report
The majority, on this record, comes to the remarkable conclusion that “it is the generated numerical identifiers and the calling of the alleles at the final stage of the DNA typing that effectively accuses defendant of his role in the crime charged” (id. at 313). That is, the final stage in creating a neutral DNA profile, consisting of a series of numbers describing the DNA alleles found at a person’s loci, at a time when the laboratory was not in possession of defendant’s DNA, “effectively accuse [d]” him of possessing the gun (id.). The majority so concludes despite the “limited” record concerning “the importance of any one analyst or any one step in the actual DNA typing process” (id.). Thus, without record or other support, the majority holds that “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data . . . must be available to testify” (id. at 315).
The majority further holds, again on this record, that “the analysts involved in the preliminary testing stages, specifically, the extraction, quantitation or amplification stages,” need not testify (id. at 313). The majority invites “OCME or a laboratory that uses a similar multiple-analyst model [to] adapt its operation so that a single analyst is qualified to testify as to the DNA profile testing” (id.).
This rule, tied to no specific material entered into evidence, must be grounded in Huyck’s testimony, the loose pages of the OCME file, and an amicus brief. It is fatally flawed for three reasons.
First, based upon the constitutional analysis performed by the majority, there is no basis to excuse analysts involved in “preliminary testing stages” from cross-examination at trial (id.). The majority has concluded the DNA profiles were testimonial. Analysts at each stage were involved in creating
Rather, the majority’s artificial bright-line rule is the hedging on the extension into this area of the Supreme Court’s Sixth Amendment cases anticipated and criticized by Justice Breyer in his concurring opinion in Williams (see 567 US at —,
It is not hard to understand why the majority has crafted this arbitrary rule that falls short of addressing what it has identified as a violation of defendant’s Sixth Amendment rights. Requiring all analysts to testify at trials involving DNA evidence — at least in large metropolitan areas — would wreak havoc on the criminal justice system and forensic evidence laboratories like OCME (see 567 US at —,
Lastly, the majority allows that, as an alternative to calling an actual witness to the generation of the profile, a witness may testify as to “his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others” (id. at 315). That is, after finding that the DNA profiles themselves are testimonial, the majority would cure that violation by having a witness testify as to his or her “independent” analysis of the charts and graphs. In other words, a witness to do exactly what the majority concludes the witness did in Brown. Accordingly, regardless whether the DNA profiles are testimonial, after today’s decision, the remedy is the same.
This clearly indicates that the “independent lab” and “known suspect” factors that apparently distinguish this case from Brown are of no moment — otherwise how could the issue be addressed in exactly the same way? What the majority is left with, despite its claim to the constitutional high ground, is the Brown standard for a testifying witness who conducts an “independent analysis on the raw data” — which apparently applies to OCME labs processing evidence of known suspects—
Rather, we should conclude, as we did in Brown, that defendant’s Sixth Amendment right to confrontation was not violated. In the absence of Huyck’s opinion, the reports of the other analysts, standing alone, shed no light on defendant’s guilt. To the extent the lab material contained the reports linking the two DNA profiles, that error was made harmless by Huyck’s in-court testimony. If defendant wished to explore further the reliability of the DNA testing performed in this case, he was free to subpoena any of the analysts and examine them at trial (see Williams, 567 US at —,
Instead of this analysis, we opt for the approach of Justice Kagan in the Williams dissent. If that position were to garner five votes in the Supreme Court of course we would be bound to follow. Until then, we are free to chart our own course based upon the Constitution, our case law, and common sense. At a time when the plurality in Williams signaled a desire to revisit Melendez-Diaz and Bullcoming (see Williams, 567 US at — n 13,
For the foregoing reasons, I dissent and would affirm the Appellate Division order.
Order reversed and a new trial ordered.
. A DNA analysis sometimes contains information, described as peaks and not actually part of the sample, that is essentially a by-product of the sensitive DNA testing process. This information is edited out of the DNA analysis automatically by the testing software or by an analyst after the program is complete. If an analyst removes the information, a second analyst reviews the decision to confirm that the action was appropriate.
. The laboratory file admitted into evidence in Brown contained 72 pages, of which 29 pages related to the process performed at Bode (see Brown,
. To the extent the material at issue documents the match between the DNA profile developed from the buccal swab and that developed from the gun swabs, introduction of those reports was harmless as Huyck, who performed that comparison and is listed on those documents, testified in court (see Rawlins,
. There is some ambiguity as to what is meant by “defendant’s DNA profile,” but it appears intended to be both the profile from the buccal swab and the one generated from the gun swabs.
. It is unclear whether an autopsy report such as that admitted in Freycinet would now pass constitutional muster given that a medical examiner’s office will perform the procedure and a murder suspect may have been identified. The majority attempts to cast this concern as “misplaced,” stating: “We are not retreating from our prior decisions holding that, given the primary purpose of a medical examiner in conducting autopsies, such redacted reports — ‘a contemporaneous, objective account of observable facts that [do] not link the commission of the crime to a particular person’ — are not testimonial” (majority op at 315, quoting Pealer,