*1
Frank, Ducoat, General, Attorney argued the cause Deputy J. (John Hoffman, Acting Attorney respondent J. General for Jersey, attorney). New opinion of the delivered the Court.
Justice LaVECCHIA Roach, Defendant, jury aggra- Reginald was convicted assault, to the burglary, and other offenses related vated sexual rape sixty-four-year-old woman. The issue of a home invasion rights is whether defendant’s confrontation appeal on to this Court trial, analyst who testified at because the DNA were violated developed buccal profile the DNA from defendant’s who matched perpetrator at the scene of the evidence left swab to DNA offense, provided perform testing procedures that did not developed perpetrator’s evi- from the basis for the dence. *3 trial, testifying analyst from the demonstrated
At the evidence testing results her own review of the DNA that she had conducted on the victim samples sperm of the and blood found obtained from analyst explained she had The how after the sexual assault. produced independently the data and file materials reviewed non-testifying analyst who had processes by a through the lab’s sperm. testing perpetrator’s of the blood and conducted DNA indepen- analyst explained engaged that she in that testifying profile satisfy that she had a correct DNA dent review to herself rely provide expert comparison an of DNA on in order to compared profile how she obtained profiles. She then detailed DNA, perpetrator’s analyst’s testing of the from the other verified, she had obtained had reviewed and with testing after he had own of defendant’s buccal swab her investigation. in suspect become Michaels, 219 companion in case of State v. explained As we (2014), today, current issued 95 A.3d WL 3843299 N.J. the testi- jurisprudence does not hold that Confrontation Clause testing is mony original person performed to have forensic of the instances, type testing and the required regardless of the all judgment of the knowledge independence of review and testing purpose of the context of for the testifying witness. In expert’s comparison in an establishing profiles DNA for use samples, that a defendant’s federal and state DNA we conclude long testifying witness rights are satisfied so as the confrontation independent qualified perform, perform, and did fact merely processes, rather than read review of data analyst’s report for another or conclusions. from vouch Here, testifying analyst engaged independent in an review testing through personally which she verified the correct- of DNA sperm profile generated perpetrator’s from the ness of a DNA making comparison it in to defendant’s buccal before she used setting, In forming expert her conclusions. this we hold swab and rights confrontation were not violated her defendant’s analyst testimony. opportunity had the to confront the Defendant personally of the two reviewed and verified the correctness highly significant match profiles that resulted statistical perpetrator. inculpating him as the therefore affirm the We judgment Appellate Division.
I. trial, begin description with a to the We the incident led challenge on and then focus the Confrontation Clause to the presented in forensic evidence this case. The facts as set forth from the evidence admitted at trial. are derived defendant’s
A. 5, 2005, During night sleeping in of November while *4 apartment, second-floor of her North Brunswick the bedroom victim, pointing sharp object H.H. was awoken a masked man a demanding money. at her neck and She led him downstairs to a then, kept money drawer where she cash. He took the and while neck, holding object still to her forced her to return the bedroom, raped where he her. H.H. called 9-1-1 after perpetrator H.H. attacker to fled the scene. later described her American, slim, police soft-spoken, as African and than taller identify was unable to him she had not seen his
she. She because identify sharp object face. She also could not he had held to her neck. Rape per-
H.H. was taken to a where a nurse Crisis Center prepared kit. formed forensic examination and sexual assault anal, H.H., buccal, Vaginal, fingernail swabs were taken dry thighs, secretions were collected from her inner and slides samples, along prepared were from the swabs. Those with H.H.’s nightgown underpants, were sent to the State Police Forensic (State Lab) Laboratory analysis. for Williams, Biochemistry Charles forensic scientist De- Lab, partment of the State tested the items the sexual assault sperm. presence vaginal kit for the of blood and The slide tested sperm, genital specimen positive for the external and anal swab blood, positive for tested and the dried secretions from H.H.’s thighs positive sperm. specimens tested for both blood and Those Department along were sent to the DNA of the State Lab with H.H.’s buccal swab. assault,
Shortly police suspect a after the identified as a person to whom E.A. A we will refer as buccal swab was obtained from him and sent to the Lab on 2005. State November B. digress briefly generally proce- to describe the standard We generate profile a DNA dures used at the State Lab to from a biological sample. process explained was at trial witness, expert Banaag, a forensic scientist em- State’s Jennifer ployed in department. the State Lab’s DNA four-step process testified that the State Lab uses a (1) extraction, generate sample: a DNA from a which placing piece sample in involves a small a test tube with (2) DNA; reagents quantification, chemical that liberate the (8) sample; is done to determine the amount of DNA *5 the DNA in which amplification, chain reaction polymerase and in test tubes reagents placed is with phase the extraction sections, key that thirteen “thermocycler” machine so in a heated times”; multiplied and billions loci, “billions the DNA are or DNA, along an with (4) detection, multiplied and machine where ladder,” Analyzer in a placed is Genetic “allele-like laser that reads past and through capillary tube it travels fragments. the DNA length of graph machine-generated with Analyzer produces a
The Genetic fragments at each lengths identify the peaks that graph by on the peaks “calls” the locus, machine labels or and the check that the analyst can the ladder. The comparing them to confirming that the ladder is properly by operating machine is sequences or two correctly. profile A full DNA contains labeled loci, incomplete of the thirteen while for each alleles report, the a DNA preparing In may at some loci. lack values graph on the for each locus shown analyst copies the values called The allele Analyzer into an allele table. produced the Genetic tested, enabling a reader sample a column for each contains table different generated from the profiles the DNA easily compare to samples. Lab takes a testimony, the State
According Banaag’s trial protect the processing samples to precautions when number of Specifically, the samples and results. integrity of the quality and used; protec- analysts wear reagents they are its before lab tests hairnets, coats, gloves; a and second clothing lab such as tive sample cut any time a labeling paperwork and analyst verifies another; tops equip- bench from one tube or transferred ethanol; samples unknown cleaned with bleach and ment are samples. processed separately from known are C. Schiffner, 16, 2005, a forensic scientist Linnea On November Lab, the items received Department of the State with the DNA positive for blood assault kit that had tested from H.H.’s sexual sperm, as well as the buccal swabs taken from H.H. and E.A. *6 performed Sehiffner a differential extraction on specimen each to separate sperm cells, cells from creating the skin separate (SCF) “sperm-cell (NSCF) fraction” “non-sperm-cell and fraction” samples specimen. from each analyzed She then the buccal swabs and the samples SCF and NSCF specimen generate from each to profiles. DNA analysis
Based on the performed, Sehiffner she was able to create a full profile DNA for the individual who had contributed sperm specimens H.H., cells to the taken from as well as profiles for H.H. respective and E.A. from their buccal swabs. She concluded profile that E.A.’s DNA did not match that of the samples male contributor to the taken pre- from H.H. Sehiffner pared report, a dated report December 2005. The listed the samples tested, that Sehiffner had set forth an listing allele table profiles generated the DNA sample for each the Genetic Analyzer, and stated Schiffner’s conclusion that E.A. was excluded possible as a profiles contributor to the DNA sperm from the cell thigh fractions of the inner samples taken from H.H. Sehiffner signed 7, 2005, page each report. December assault, defendant,
Several weeks after H.H.’s an African Amer- ican man apartment adjacent H.H.’s, who lived in the complex to was suspect. identified as a On December North Bruns- police wick stopped officers defendant in parking lot of his apartment complex him, finding pair searched a of black gloves, keys, lighter, pipe, a crack sharpened and small stick pocket. his The officers obtained fingerprints defendant’s and a swab, buccal and sent the buccal swab to the State for Lab analysis. Wisconsin,
Because Sehiffner had relocated to the H.H. case file and defendant’s buccal assigned swab were to Banaag, Jennifer another forensic scientist in Department, the DNA issued report February dated Banaag analyzed 2006. the DNA from using defendant’s buccal swab procedures the lab’s standard generated a full profile for defendant. compared swab with buccal profile generated had defendant’s specimens taken from H.H.’s inner from the profiles generated that, of scientific degree within a reasonable thighs, and concluded samples the DNA in the the source of certainty, defendant was calculations, Banaag on her H.H. Based statistical taken from samples occurs in in those that the DNA found determined African quintillion 1.3 Americans. only approximately one underlying data report and all the Banaag reviewed Schiffner’s as as all files testing procedures, well generated by Schiffner’s review, Banaag testified that part case. As this relating to the pages initials and dates on “everything” from the she checked profiles generating calls” made Schiffner “data Thus, reaching Banaag’s her reported. review included that she for the value called each as the correctness of own conclusions *7 through Essentially, her creating the allele table. locus used sample that Schiffner the allele table for the she verified review containing an signed report allele Banaag prepared had tested. generated from defendant’s profile the DNA had table with by for profiles reported the and the DNA Schiffner buccal swab Banaag’s conclusion report stated samples taken from H.H. samples in the of DNA found that was the source the defendant taken H.H. after the assault. from
D. 2, 2006, second-degree charged with On March defendant was (count one); third-degree criminal burglary, N.J.S.A. 2C:18-2 (count two); restraint, first-degree robbery, N.J.S.A 2C:13-2 (count three); first-degree aggravated sexual 2C:15-1 N.J.S.A 2(a)(4)(count four); assault, first-degree aggravat- N.J.S.A 2C:14— (count 2(a)(3) five); assault, second- ed sexual N.J.S.A. 2C:14— 2C:14-2(c) (count six); assault, third- degree N.J.S.A. sexual weapon purpose, unlawful N.J.S.A. degree possession of a for an (count 4(d) seven); fourth-degree unlawful two counts 2C:39— 2C:39-5(d) (counts eight and possession weapon, N.J.S.A nine); arrest, (count fourth-degree resisting N.J.S.A. 2C:29-2 ten).
At jury January defendant’s trial before a key the issue identity, analysis was which on performed turned the DNA at the identify State Lab because H.H. could not her attacker and no fingerprints had been found the crime scene. evidence,
In respect of presented the DNA the State testimony expert Williams, two witnesses: who had tested the samples from the sexual assault for sperm, kit blood and Banaag, had who created DNA from defendant’s buccal compared profiles generated swab and it to Schiffner H.H., samples taken from had verified on based independent her review of that presented data. The State also testimony nurse had examined H.H. the sexual assault center samples crisis and had that collected were sent testify. to State Lab. did not Schiffner Banaag’s testimony
It is gives that rise to defendant’s claim of a rights. violation of his confrontation When Banaag, objected any the State called defendant to testimony by Banaag analysis performed by about Schiffner. argued Defendant by Banaag per- about tests hearsay formed right Schiffner was and violated defendant’s analyst performed confront the who had being the tests used against argued Banaag, expert, him. The State as had properly on relied Schiffner’s work in performing her own inde- pendent analysis, and that defendant had opportunity subpoena if Accepting Schiffner he chose to so. do the State’s *8 representation that departure Schiffner’s from employment at the Lab not incompetence, State had been due to a termination for the objection court overruled defendant’s and Banaag’s allowed testi- mony.
E. Banaag Lab, began describing her duties at the State accreditation, discussing explaining principles the lab’s the basic analysis, describing testing methodologies DNA and the used at Banaag the State Lab. stated that she had followed those standard processes with defendant’s buccal explained swab and the results analysis. of her profile generated She described the from sample, stating defendant’s DNA pertained which values at each of the thirteen loci.
Banaag report also identified Schiffner’s prosecutor when the her, showed it to and she discussed work done Schiffner. Specifically, Banaag explained samples Schiffner had tested separated sperm-cell and how Schiffner had non-sperm- and stated, samples. cell fractions of Banaag those “I [took] the data swab, I generatefd] profile, from the buccal I DNA compared any it to profiles generated by of the that were Miss analysis Schiffner when she did her specimens that were testified, received for Banaag this case.” “I indepen- made [an] analysis received, dent data for the buccal swab that I went back and reviewed Miss my independent Schiffner’s case and made own Banaag conclusions.” then stated incorporated that she had profile generated by report. Schiffner into her She ex- plained comparison profiles her jury, stating for the detail the values that she and Schiffner had found at each locus respective from their samples.
Banaag described her review of Schiffner’s work as follows: gone through I would have taken Miss Sehiffner’s entire case file and and reviewed single page anything dating in that ease. I look for every and initials and all pages. I also make sure all of the data calls that she made are correct and that agree X with them and that all of the information that she out in her reported [is] accurate. report prosecutor When the “agreefd] asked whether she with results,” “Yes, Banaag responded [Schiffner’s] I do.” Banaag went on to state her conclusion that “within a reason- able certainty Reginald scientific ... Roach is identified as the source of the DNA specimens obtained from number 1-6-1 SCF,” SCF 1-6-2 sperm cell samples fractions taken from thighs. H.H.’s inner Quantifying certainty, Ba- that, naag calculations, stated based on her statistical she had *9 samples profile obtained from those the DNA that determined quintillion African Americans. one in 1.3 approximately in occurs in samples integrity of the the asked about When that any indication case, that she “didn’t see Banaag testified this just you “if look compromised” because samples were any of the being from is consistent with either generated, the data the data any of there aren’t indications suspect. There the victim or the in DNA.” individual being a third proce- focused on cross-examination Defendant’s possibility analysis generally and in DNA dures used amplification step, as well sample during the of the contamination of the frequency of occurrence calculation of the Banaag’s as meaning of the population and the African American profile in the process Banaag explained in detail the ratio she had calculated. produced by the from the data profiles generated are by which the analyzer machine: generated in that one [Banaag:] with the saw [T]he you ... data is then peaks generate [] on the size of the graph. will based [The peaks analyzer] window____ through fragments that pass regard what numbers to those who determines [Defense With peaks attorney:] regard that? it will be who determines 12,13 or, with attribute to any peaks through on the [Banaag:] ran that’s 3100s,1 put run that we every Every put it____The run genetic with ladder is al[l]ele like ladder that runs has analysis single and all of on and the ladder is sized 3100 run that we put
with every through ladder. run are sized to the run on that compared that are samples it? Who does [Defense attorney:] ladder [Banaag:] instrument we examine the off the data from the When we pull doing that we then look sure all the are labeled correctly to make peaks calls all of generated That automatically for each of the samples. the data that is we do make sure the as to the ladder so of the samples compared each peaks generated for the samples and we look at the data that’s is called correctly ladder the ladder. comparison everything it and spits is the one that analyzes [Defense computer attorney:] out for you? [Banaag:] ladder and the sizes of the extrapolates it extrapolates Basically get a with those so we do printout calls for each samples sizes of the base the State Police machines used by number of the analyzer 1 3100 is the series Lab. *10 allljele on it. The calls are labeled and that’s what peaks already we use to analyze heights our data. Those are the and calls that we peak use our peak reports. wrong, [Defense If the can fix it? attorney^ computer you [Banaag:] Wrong in what sense? verifying [Defense You al[l]ele attorney:] say you’re is that correct? calls, [Banaag:] That’s correct. wrong [Defense ifSo the isn’t attorney:] what is there to computer verify? [Banaag:] anything wrong Well, the we would be only able to tell if there way was something is if there’s unusual with the ladder. That’s kind of the standard that measuring we’re all the at this If the samples by ladders are correct we point. assume that the calls that are made for each of the is correct also and we samples do checks on our performance instruments. We have records of those performance cheeks. Banaag Defense counsel did not any questions ask relating to the specific details of how she conducted the tests on defendant’s buccal any swab or might errors she doing have made while so.
Defendant testify chose not to on his own behalf and he called no witnesses.
Following trial, eight-day an jury guilty found defendant second-degree burglary, first-degree two counts of aggravated assault, sexual second-degree assault, sexual third-degree and possession weapon of a purpose. for an unlawful Defendant was aggregate forty-year sentenced to an prison eighty- term with an percent five parole disqualifier Act, under Early the No Release N.J.S.A. 20:43-7.2. Appellate
The
Division affirmed defendant’s conviction and sen
unpublished
tence
opinion
1,
August
dated
2011. On the
issue of
Banaag’s testimony
whether
referencing Schiffner’s re
sults violated
rights,
defendant’s confrontation
panel began
by
reviewing the
Supreme
United States
Court’s
decisions Craw
36,
v. Washington,
541 U.S.
124 S.Ct.
Addressing hearsay issues under N.J.R.E. and that under expert as an qualified was rely as a properly on Sehiffner’s work basis N.J.R.E. could issues, panel opinion. Turning to confrontation expert for her work, Banaag independently Schiffner’s that had reviewed found her to Banaag appropriate had that it was for use that determined Schiffner, compared Banaag had profile generated by generated herself from defen profile to the Banaag was there panel swab. concluded that dant’s buccal analysis. The panel “mere for Schiffner’s not a conduit” fore Bullcoming Melendez-Diaz this distinguished case from testimonial, that, report if was it was not even noting Schiffner’s provided jury to the prosecution into entered evidence *11 Rehmann, Quoting its decision in State v. during deliberations. 451, 457, N.J.Super. (App.Div.2011), Appellate 17 A.3d278 the 419 “[ajnother expert may be called instead of Division concluded that analyst, testifying ‘has made an original long as the witness so ” to the independent determination as results offered.’ error, panel that the trial Finding no other trial determined merging sentencing by not defendant’s convictions erred court 2C:14-2(a)(3) 2C:14-2(a)(4), and N.J.S.A. oth- under N.J.S.A. but upheld forty-year aggregate sentence. erwise defendant’s certification, petition for which raised granted defendant’s We Roach, v. 211 N.J. issues. State only Confrontation Clause (2012). A .3d
II.
A.
Court,
argues
allowing
that
this
defendant
Before
analysis
his confronta-
testify to the results of Schiffner’s
violated
Amendment.
rights under the
tion
Sixth
had not
been decided
the time
by
analysts,
context
testimony
laboratory
yet
Division rendered its decision.
the Appellate
Melendez-Diaz,
Relying
supra,
on
Defendant asserts that none of the limitations to the Bullcom ing opinion Sotomayor discussed Justice in her concurrence are applicable in at -, this case. See id. 131 S.Ct. at J., L.Ed.2d (Sotomayor, at 628-30 concurring). argues Defendant Rehmann, testifying concerned a scientist directly testing procedures, observed the should not be extended to allow testimony by analyst who independently reviewed but did not observe the question. work in
Although Illinois, defendant states that Williams v. 567 U.S. -, (2012), 132 S.Ct. 183 may L.Ed.2d 89 have called into question viability of the Crawford/Melendez-Diaz/Bullcoming cases, line of argues he that the decision should be confined to its facts. Although acknowledges defendant the closeness of the facts in case, Williams to in those his he notes that Williams was a bench trial while by his case was tried jury, a and that in Williams testifying analyst only profiles stated that the matched where-
72 creating the explained did in
as here
what Sehiffner
reported.
in
that Sehiffner
profile and
detail the results
described
alternative,
that
urges this Court
to find
In the
defendant
rights
Banaag’s testimony violated
confrontation
under
his
Basil,
Citing
v.
202 N.J.
Jersey
New
State
Constitution.
J.A.,
(2010),
ex rel.
195 N.J.
949 A.2d
A .2d
State
Branch,
(2005),
(2008),
v.
N.J.
B. testimony did defen- argues Banaag’s The that not violate State rights. The first asserts confrontation State dant’s constitutional witness, expert properly considered Sehiffner’s Banaag, that as an that there making independent her determination results when argues The that profiles. the two State was match between explained Clause neither 703 nor Confrontation as N.J.R.E. testifying to her prohibit expert progeny and its Crawford opinion part opinion, that is based on inadmissi- own even when data, underlying not long as information is ble facts so California, cites cases from admitted into evidence. State Texas, Tennessee, Massachusetts, Carolina, North Wisconsin jurisdictions majority that the have inter- support claim its expert opinions allow the preted admission Crawford information, including analyses performed rely hearsay on other scientists. Bullcoming, argues
Reviewing Melendez-Diaz and
State
Banaag’s
violated
requires
finding
that neither
points
that the
rights. The State
out
confrontation
defendant’s
Melendez-Diaz, supra,
expressly
stated that
Con-
Court
testimony by everyone “rele-
require
not
frontation
does
Clause
*13
vant
in establishing the
custody,
chain of
authenticity of the
sample,
accuracy
device.”
State doing basis for here. provide no so
III.
of
claim of a violation
his
have before us defendant’s
We
rights.
Amendment
the United States
The Sixth
confrontation
Constitution,
through
to the
the Four
applicable
made
States
Amendment,
confront
provides
right
an accused the
“to be
teenth
Jersey
him.” The
Constitution
against
the witnesses
New
ed with
cognate
to an
in a criminal trial.
provides
guarantee
accused
¶ 10.
I,
state
case
art.
Our
confrontation
law
See N.J. Const.
law
that the
traditionally has
federal case
to ensure
two
relied on
Miller,
provide
protection.
v.
170
provisions
equivalent
See State
(2002);
Cabbell,
417, 425-26,
144
State v.
790 A.2d
see also
N.J.
(2011)
311,
11,
(noting interchangea
328 &
As modern
States
Court
United
guaranteed
explicated,
right
has
to confront witnesses
case law
applies
accused
to all out-of-court statements
are
to an
68,
1374,
at
Crawford, supra,
In
we
through the most
decisions
Supreme Court
States
law United
espoused
Williams,
the Court
in which members
recent case
addressing
threshold
even for
analytic approaches,
divergent
*15
in
contained
report
issue
forensic
the DNA
question of whether
15-28,
concluded
A.3d 648. We
at
95
Id.
statements.
testimonial
took
in Williams
such
that were issued
opinions
three
that the
of
determining
the use
forensic
whether
differing approaches to
we could not
Clause that
the Confrontation
evidence violates
majority
of a
of
support
the
that would have
identify a narrow rule
Moreover,
28-32,
four
A .3d 648.
Id. at
Supreme
the
Court.
approach
new
majority advanced a
of the Williams
members
testimo
should be deemed
document
assessing
a forensic
whether
established
previously
from the
approach that deviated
nial —an
by
Id.
test,
adopted
our Court.
had been
primary purpose
Michaels,
that Williams’s
concluded
30-31,
In
we
Similarly, in this matter evidence, as we did holdings on forensic frontation Clause Michaels.
IV. argues that rights by Defendant his confrontation violated were through the forensic evidence introduced Banaag’s testimony. objection His is based on premise rights only the that his can be by having opportunity Schiffner, satisfied the to confront the analyst who testing conducted the DNA and the semen blood body found on the of the assaulted victim longer and who was no working testing State Lab when required was on defen- dant’s buccal swab or when the case came to trial. In that respect, argument Bullcoming. defendant models his on opportunity Banaag, contends, to cross-examine he is an insuffi- right cient analyst substitute for his to confront actually performed on perpetra- evidence left body tor on the victim. outset,
At report prepared we note that Ms. Schiffner was not introduced at respect, trial. In that case this differs Melendez-Diaz, initially Bullcoming disputed where the Melendez-Diaz, reports placed in In supra, were evidence. confrontation violation was discerned where no witness was of fered support respect be cross-examined in of the state ments contained the forensic document that admitted was into 308-09, 329, 129 2530-31, 2542, 174 evidence. 557 U.S. at S.Ct. Bullcoming, L.Ed.2d at 332-33. In supra, report a forensic evidence, also through was admitted into but the live who did not or co-worker observe review the work set forth in a at -, report sign certify. he did not U.S. *16 2709-10, 180 at L.Ed.2d at 615-16. said, although report
That Schiffner’s was not introduced into evidence, Banaag report repeatedly referred to that in her testi- mony. incorporated also readings She allele in contained the report February report into her own 2006 comparing results for thirteen locations from buccal defendant’s swab to results that Moreover, report. were in point the Schiffner at in one her direct examination, Banaag “agreed was asked whether she with” results report, recorded in Schiffner’s and she answered in affirma-
77
introduced into
report was not
Thus, although Schiffner’s
tive.
components of
Banaag’s testimony, evidence,
integral to
it was
Therefore,
expert report.
we
Banaag’s
in
incorporated
it were
overruling
in
defen-
trial court erred
must address whether
light of the State’s
Banaag’s
in
objection to
dant’s
testing
and the
testify to her
results
to
failure to call Schiffner
findings.
summarized those
report in
Banaag’s expert
objection to
considering
confrontation
In
this
first,
Michaels, supra, that neither
in
testimony,
note
as we did
we
every
requires that
holding nor Melendez-Diaz’s
Bullcoming’s
testify in
testing process
order
analyst
in a
must
involved
33,
rights.
at
Our Michaels led us Bullcoming lead to the conclusion that nor Melendez-Diaz testing type case, type of every no matter the involved testify, primary person who does review conducted testing testily to analyst original in the must avoid involved Melendez-Diaz, supra, ad Ibid. Confrontation Clause violation.” self-admitting document. 557 U.S. dressed the circumstance Bullcoming, 308-09, at L.Ed.2d In 129 S.Ct. at 320. at “surrogate,” merely analyst, recited supra, dubbed analyst any independent findings engage not of another and did at -, assessment of the himself. U.S. essence, Bullcoming
2709-10, In witness L.Ed.2d 616. *17 78 no report
had connection to the which about he other testified being than familiar laboratory’s testing procedures. with the De- Bullcoming fendant’s reliance on therefore is unwarranted. Sotomayor’s noteworthy separate opinion Justice Bullcoming holding and, commented on what the Court’s did not address therefore, so, rejecting. doing was not In both a referenced supervisor and an independent otherwise reviewer of data: testifying not [T]his is a case in is person reviewer, or supervisor, someone else with a albeit connection to limited, the scientific test at personal, issue____It would be a different case for if, supervisor observed example, conducting a test testified about or a the results about analyst such results. report degree need not
We
address what
of
[the
involvement
sufficient
here
because
surrogate who testified] had no
involvement whatsoever
test
relevant
and
report.
(Sotomayor,
concurring).]
[Id. at -,
Other cases qualify the analyst’s testing DNA results can of an pendent review expert report incorporates that supervisor testify to about a analysts’ comparing from supervisor has drawn conclusions the rights. confrontation transgressing a defendant’s results without - So.3d -, -, 210106, State, See, 2014 e.g., v. WL Ware - - 2848, denied, -, (Ala.2014), 134 U.S. *6 cert. 580, Greineder, L.Ed.2d - (2014); 464 v. Mass. Commonwealth - denied, U.S. -, 166, 804, 815-18, 134 S.Ct. cert. 984 N.E.2d (R.I. (2013); Lopez, 45 13-20 State v. A.3d 187 L.Ed.2d (S.D.2013). 2012); Eagle, 898-99 State v. 835 N.W.2d Michaels, examples holding in as well as the our While above, supervisor testify to on permits and based cited therein and that he independent her review of raw data conclusions his or data, reasoning applies with on that the reports or she based of a co-worker or comparable analogous force to the circumstance reviewer, independent If an who is independent reviewer. other is knowl testing the and supervisor not a but who trained protocols, laboratory’s processes and testifies edgeable about independent review of raw data and on his her based data, then it is he drawn from conclusions that or she has holdings supervisor-testimony logical apply reasoning However, by testimony provided must such a case. be underlying truly qualified data independent and reviewer report, may merely parrot findings not and and witness (10th Pablo, F.3d United States v. another. See 1290-91 Cir.2012) analyst’s independent testifying (observing evidence of analytic process followed co- review of DNA recorded data and (permitting analyst); Eagle, supra, 835 N.W.2d independently analyst participated in some and others). anti-parroting analyzed and results of The reviewed repetition present caveat avoids of the flaw that was in Bullcom ing. independent -just signs like a supervisor who reviewer— report and certifies a draw conclusions on based his or her —must findings, own her his or verification of the data and results See, explained e.g., must be Lopez, supra, on the record. 45 A.3d (emphasizing testifying analyst “personally at 13 reviewed independently data, analyzed all the raw formulated allele table, and then his own final concerning articulated conclusions profiles matches”); corresponding and their see also v. State - N.C. -, (2013) Ortiz-Zape, (finding 743 S.E.2d 164-65 testifying co-analyst no confrontation expert violation where was *19 performed indepen lab’s and technical review who reached analysis dent conclusions based on review of cocaine substance report as well as all data calibration raw and and maintenance itself), testing, documentation from not testing but did observe - denied, U.S. -, 2660, 189 (2014). cert. 134 S.Ct. L.Ed.2d 208 Applying standard, Banaag’s that we return testimony. to
V. personally testified that she reviewed all the raw and earlier, data the calls Schiffner. made As noted with respect data, explained to the raw she how generates the machine against peaks a ladder are checked. [Banaag:] generated [T]he ... data is then with the in you that saw that one peaks graph. generate [The [] analyzer] will based on the size of DNA peaks the window____
fragments through that that pass genetic run al[l]ele that’s on the has an [E]very put like ladder that runs analysis [genetic single with it----The ladder is run with ran every that we analyzer] put through and the is on ladder sized and of the that all are ran on that run samples are sized to the ladder. compared [Defense it? Attorney:] Who does [Banaag:] we When off the data from pull the instrument we examine the ladder doing
to make sure all the labeled and in that are we then peaks correctly look generated the data that is of for each That all of calls samples. automatically of the each as to the ladder do peaks so we make sure the samples compared generated ladder is called and look at we the data that’s for the correctly samples to ladder. comparison everything it and the one that analyzes spits [Defense computer The attorney:] for out you? [Banaag:] of the ladder and extrapolates it the sizes Basically extrapolates get a with those of so we do printout calls for each the samples sizes the base use to labeled and that’s what we al[l]ele analyze on calls are already it. peaks heights in our that use and calls we reports. data. Those are the peak our peak not that the did explained she satisfied herself how She sample other She further with DNA. contamination disclose peaks the same in her own review explained how she examined report in order Schiffner’s generated the DNA that develop a DNA agreed calls used to she with determine whether sample. also detailed how she perpetrator’s She profile for the evaluating profiles to specific calls in the DNA used thirteen person more one probability of than the mathematical determine samples. specific profile generated from possessing Banaag’s explained how she used judgment, testimony In our knowledge review expertise independently her scientific computer-generat- analyze raw that was the graphic data once testing. she was also asked product of Schiffner’s While ed results, question that one “agreed with” Schiffner’s whether Banaag’s or under- independence review did not eviscerate the in her explanation provided that she mine the detailed generated profile was previously that the how she determined forming expert opinion enough for her to when her use accurate left from defendant’s buccal swab matched *20 by perpetrator. behind the judgment Banaag’s noting it also our that
It
that
is
bears
machine-generated data
independent interpretation of the
convert
subject to the
unmistakably
raw
into
testimonial material
ed
data
17-20;
supra, 45 A
Lopez,
See
.3dat
Unit
Confrontation Clause.
(4th
Summers,
Cir.2011), cert.
666 F.3d
202-03
ed States v.
-
(2012).
denied,
U.S. -,
In
Banaag
we note that
addressed
her
many
practical
concerns raised
as
dissent
reasons
analyst
performed
cross-examination of the
test
necessary.
post
85-88,
See
at
example,
Accordingly, we hold Banaag on the DNA opportunity to confront by his satisfied his trial. evidence used at
VI. Appellate Division is affirmed. judgment of the dissenting opinion. separate, ALBIN filed Justice ALBIN, dissenting. Justice Michaels, A.3d 219 N.J. 95 case to State v. companion
In this (2014), majority again announces that a WL cross- opportunity to confront and may be denied the defendant analyst who conducts state-employed scientist or examine a majority finds him in a crime. The laboratory implicates test surrogate expert if a is satisfied that the Confrontation Clause performed, participated laboratory has not from the same —who in, of the actual the test results or observed the tests —reviews jury. This use of a passes through to the analyst and them ac bypass rights of the surrogate witness to the confrontation with the Amendment. cused does not conform Sixth Michaels, my dissent in State v. expressed For the reasons here, majority’s I I believe that the and for the reasons advance scientific-testing cases is adoption rule of the substitute-witness Clause eviscerating principles that animate the Confrontation Mexico, Bullcoming v. New 564 U.S. in direct conflict with and is (2011) 2705, 2713, -, -, 180 L.Ed.2d 131 S.Ct. analyst who on substitute witness for (finding that State’s reliance analysis Amendment’s Confronta- performed blood violates Sixth Clause). respectfully I dissent. tion therefore
I. Here, Schiffner, employed Linnea a forensic scientist Jersey New Laboratory, prepared State Police DNA a DNA profile of suspect complex based on a series of tests on swabs taken from victim aggravated of an sexual assault. Jennifer Banaag, another scientist from laboratory, prepared the same profile sample DNA based on a taken from defendant. At defen- trial, Instead, dant’s not call State did Schiffner as a witness. presented Banaag, the State profile who testified that the DNA rape suspect prepared by Schiffner profile matched the she prepared from defendant’s DNA.
Significantly, Banaag participate any did not in or observe Although Schiffner’s Banaag tests. was familiar with the DNA procedures laboratory, in the reviewed Schiffner’s written notes, analyzed sample defendant, the DNA taken from she stranger actually was a to the performed by tests Schiffner. Nevertheless, Banaag jury read to the what Schiffner had done and the results she reached. trial,
At argued the State guilty defendant must be because profile Sehiffner’s DNA sample matched the DNA taken from Although defendant. Schiffner’s test results were testimonial crime, implicating statements defendant in a defendant was never given opportunity to cross-examine Schiffner —to ask her how performed test; each individual during what she observed tests; errors, those any lapses, whether there were or mal- may functions that corrupted integrity have of the results. majority gives The blessing procedure its to a that does an end run around the Sixth Amendment. opportunity The to cross- examine report about Schiffner’s test no more satisfies the Confrontation Clause than opportunity would the to cross-examine police eyewitness’s witness about an absent identification of an primary purpose accused. The preparing of Schiffner’s a DNA profile from swabs taken from the victim was to further a criminal prosecution. That jury was offered to the for its truth —that rapist is defendant. That testimonial statement jury making not be offered to the without Schiffner available could for cross-examination.
II.
generally prohibits the use of out-of-
The Confrontation Clause
by an absent witness who has not
court testimonial statements
Washington,
subject
v.
been
to cross-examination. Crawford
(2004).
36, 51, 124
1354, 1364, 158L.Ed.2d
U.S.
hearsay
is conditioned on the
admission of testimonial
evidence
“unavailability
presence
[of
of the witness at trial or on the
*23
prior opportunity
and a
for cross-examination”
that
witness]
68,
1374,
Id. at
124
at
Clause forensic .3d Melendez-Diaz, Bullcoming give support cases no but those majority. to the Supreme Bullcoming, supra,
The United held in States Court in, laboratory analyst perform, participate that a who did not or surrogate give testimony observe a blood test cannot for the analyst absent who did the and recorded the results offending without the Sixth Amendment’s Confrontation Clause. at -, 2713,180 564 U.S. 131 S.Ct. at L.Ed.2d at 619. The Court surrogate expert give reached that result because the cannot testimony analyst firsthand about did what and observed during “particular during “testing process.” at test” or Id. -, 2715, 131 at at 622. S.Ct. 180 L.Ed.2d The Court also recognized surrogate that cross-examination of a witness cannot “expose any lapses part analyst. or lies on” the of the Ibid. The stand, analyst Court understood that without on the deprived ability questions might is to defense ask 86 analyst comply protocols, to id. at
reveal whether the
failed
with
8,
8,
8,n.
or
- n.
Beside the constitutional test, explain very practical demanding there is a reason for person from the who conducted the test: errors testing process may not be disclosed absent cross-examination of analyst. assuring means of accurate “Confrontation one Melendez-Diaz, analysis.” supra, forensic U.S. S.Ct. at 174 L.Ed.2dat 326. conducting occur in In a
Mistakes laboratories DNA tests. analysis, technical as small and unintentional as “[e]rrors tube, analyst accidentally squeezing pipette wrong into the extraction, forgetting change gloves compromise after an can Murphy, critical evidence.” Erin The New Forensics: Criminal Justice, Certainty, False and the Second Generation of Scientific (2007). Evidence, addition, In 95 Cal. L.Rev. 754-55 there is *24 always potential analyst making transcription a error. example, “an of a crime For audit Massachusetts lab revealed laboratory genetic ‘instances which officials entered the same database,’ profile under two different ID numbers in the and in analyst reported which an results in four cases matched the ‘DNA ” genetic rape they material from old kits when had not.’ Id. at 773 Saltzman, (quoting Jonathan US Audit Found More Problems at Al). Lab, Globe, 1, 2007, Crime Boston Feb. Justice Alito has “ testing may ‘plagued by noted that forensic DNA be issues of ” suboptimal samples, equipment malfunctions and human error.’ Osborne, Attorney’s Dist. the Third Judicial Dist. v. Officefor (2009) 52, 81, 2308, 2327, (Alito, U.S. 129 S.Ct. 174 L.Ed.2d J., al., concurring) (quoting Litigator’s R. Michaelis et A Guide (2008)). DNA 341 may light analyst
Those errors never come to unless the is on subject Kagan the stand and to examination. Justice in her reported rape dissent in Williams described case which an analyst implicated at first testified that DNA evidence the defen dant, only to retract her when she realized that she had inadvertently switched the labels on the victim’s defendant’s Illinois, -, -, samples. v. Williams 132 S.Ct. U.S. (2012). 89, 138 183 L.Ed.2d “exposing analyst incompetency, It thus becomes clear that lab bias, inexperience, dishonesty through cross-examination is one of the defendant’s undermining damning few tools for such evi- Bernheim, dence.” Lucie Scholarship, Getting Student Back to Why Our “Roots”: Cutting Edge Technology the Use Forensic (and Can) in the Courtroom Should Still Be Constrained Language Clause, Plain 10 Seattle J. Soc. Confrontation (2012). Just. 890-91 only “DNA is as as reliable are ” people overseeing processes.... each of [the] Sheldon Krim- sky Simoneelli, Banks, & Tania Genetic Justice: DNA Data (2011). Investigations, Criminal & Civil Liberties 280 Cross- analyst gives examination of expose defense counsel the tool to mistakes due to cross samples, contamination of test an “inaccu- interpretation” results, results,” rate “completely of test fabricated Bernheim, and other forms of supra, human error. at 891. Allowing surrogate expert testify analyst, witness to for the may however well informed the laboratory witness be about notes, procedures analyst’s adequate and about the not an guarantees substitute for what the Sixth Amendment —confronta- tion. surrogate Cross-examination of a witness is useless exer- surrogate cise precise because the cannot answer what tests the analyst performed; surrogate actual only repeat can what the analyst recorded.
III. profile prepared by Schiffner as an offered the DNA The State analysis. test results and truthful scientific Sehiffner’s accurate defendant and were statements that incriminated were testimonial Schiffner’s powerful presented evidence to convict defendant. jury by Banaag, surrogate witness. to the results were read jury Banaag, read to the Schiff majority contends that The conduct, machine-generated data who did not notes and but ner’s in, testify testing, could about participate or observe the actual precisely But this is what the did and observed. what Schiffner Bullcoming, supra, prohibits. 564 U.S. Clause See Confrontation 2715, 180 -, L.Ed.2d at 621. at 131 S.Ct. at were majority dispute that Schiffner’s test results The does not prepared was offered for testimonial or that the work surrogate witness checked Schiffner’s its truth. That the alter the fact that conclusions does not product or came to her own jury passed through to the were testimonial statements Schiffner’s affording right his of confrontation. without defendant has animated Confrontation Clause principle core may is that a testimonial statement jurisprudence since Crawford making jury witness presented to the unless the not be previous or was subject cross-examination at trial statement is Crawford, supra, 541 U.S. ly available for cross-examination. 68, 124 1374, 158L.Ed.2d at 203. S.Ct.
IV. greatest has described as one been Cross-examination disclosure of exposition of truth and ever conceived for devices Green, 149, 158, 90 399 U.S. See v. error. California (1970). Cross-examination is rendered 26 L.Ed.2d person truth-seeking process when weapon in the useless not have against the accused does bearing testimonial statements damning and when that absent witness’s to be called as a witness through surrogate. introduced statements can be testimonial *26 The Confrontation Clause was intended to testimony interdict the majority that the protections now allows. afforded Confrontation Clause are lost when the person knowledge with firsthand eyewitness— scientist or an —whether is not tested in the crucible of cross-examination.
Because I do not believe that defendant rights was accorded the guaranteed Amendment, to him respectfully the Sixth I dis- sent. For Justice RABNER and Justices affirmance —Chief
LaVECCHIA, PATTERSON, Judges FERNANDEZ-VINA and (temporarily assigned) RODRÍGUEZ and CUFF (temporarily assigned) —6.
For reversal—Justice ALBIN —1.