Lead Opinion
Chief Judge Katzmann concurs in a separate opinion.
Petitioner-Appellant Kenneth Washington (‘Washington”) appeals from a judgment of the United States District Court for
BACKGROUND
I. Factual Background
Washington was charged with multiple felony counts—three counts each of first- and second-degree burglary, two counts each of first- and second-degree assault, first-degree criminal sexual act, and first-degree sexual abuse—in connection with three separate home invasions that took place over the course of eleven months between August 2006 and July 2007 in adjacent neighborhoods in Queens, New York. DNA evidence was recovered from each of the three crime scenes, as recounted below. Washington was charged when, as stipulated at trial, a DNA profile based on the DNA evidence recovered at each crime scene was found to match his profile, contained in the New York State DNA Index.
A. The Crimes
1. The T-Shirt Evidence
The first set of crimes occurred around 2:00 a.m. on August 17, 2006, when an off-duty New York City Police Department (“NYPD”) detective who lived alone, awoke to find an intruder in her bedroom rifling through her jewelry box. The detective described the intruder, who gained access to her home through a kitchen window, as a slender black man with cornrows wearing a white t-shirt, denim shorts, and a black stocking cap with a knot at the top. The cap covered the intruder’s face and he wore socks on his hands.
When the NYPD officer attempted to retrieve a firearm from the nightstand beside her bed, the intruder approached and they struggled for the weapon. Calling her a “bitch” and a “stupid fat bitch,” the intruder viciously beat the detective on the head, first with his hands and eventually with the gun, so hard she bled into her eyes and could not see. Trial Tr. 494. The struggle and beating continued into the hallway and then the bathroom. Demanding money, the intruder pushed his victim into the bathtub and asserted that he had
During an early morning search of the area near the victim’s home in the hours after the crime, a police officer observed a white t-shirt and a‘white sock, both apparently covered in blood, and a stocking cap. Officers photographed, collected, and documented these items. Eventually, analysts at the New York City Office of the Chief Medical Examiner (“OCME”), an accredited lab affiliated with the New York City Department of Health and Mental Hygiene, tested these items for DNA evidence.
2. The Glove Evidence
The second criminal incident occurred on December 5, 2006, about four months later, and was discovered when a working mother returned home, accompanied by family, to find her house in disarray. Her handbag had been emptied out, and someone had. strewn her earrings .around the living room. Several items—sneakers, multiple • video gaming systems, and two watches—were gone. A window in the dining room had been forced open.
Two gloves that did not'belong to any of the home’s occupants were recovered at the scene. Police officers collected the gloves and sent them to OCME for DNA testing. OCME analysts determined that, while there was a mixture of DNA present on each glove, both had the same major donor. A male DNA profile was generated from glove scrapings.
8. The Iced-Tea Container Evidence
Finally, on the afternoon of July 15, 2007, the third victim, who was alone at home at the’time of the crime, had just awakened and was watching television in bed when a male intruder appeared in her bedroom. The intruder, a black male with cornrows, wore her long white bathrobe, and had covered his face with a towel or t-shirt. The third victim, like the first, noticed that the intruder wore socks on his hands.
The intruder violently assaulted this third victim, placing his hand over her mouth and pushing her face into a pillow to muffle her screams, before pulling her off the bed by her hair and pressing his penis between her buttocks. The victim, who was pregnant at the time, used her
The victim defecated on hersélf at this assault, enraging the intruder who called her a “nasty bitch,” dragged her by the hair into the bathroom, threw her in the shower, and told her to clean herself. Id. at 719. The intruder then dragged her back to the bedroom and continued his attack; warning her that if she didn’t stop whimpering he would kill her. When the victim again defecated upon being choked, the intruder hit her on the face, returned her to the bathroom, and left her on the toilet. Once he left the bathroom, the woman locked the door behind him. While he banged on the door, threatening to kill her, she opened the bathroom window, which was eight feet above the ground, and jumped out, landing on her back. Scantily clad and covered in blood and feces, she crawled on her hands and knees across the concrete to the front of the house, and then ran across the street to a neighbor’s home for help.
The neighbor called 911, noting, as she did so, an individual in a white robe scaling the fence behind the victim’s home. An ambulance took the victim to the hospital where medical personnel treated her injuries and monitored her unborn child during the next few days. She never returned to the residence, but when friends eventually retrieved her things, and she was able to go through them, she discovered that her eyeglasses, jewelry, and some money had been - taken. While processing . the crime scene, a police officer collected an iced-tea container from the "bedroom, which the victim identified at trial. The police sent the iced-tea container to OCME for testing. The OCME DNA lab developed a male DNA profile from amylase taken from the container.
B. The DNA Evidence
1. The DNA Index Match .
At trial, the parties stipulated that Washington was not an identical twin and that, had witnesses been called from the New York State Police Forensic Biology Laboratory, these witnesses would have offered evidence establishing that “the male DNA profile developed by [OCMEj’s DNA laboratory from the evideh'ce contained in FB06-14709, scrapings from the neck of white T-shirt, FB07-2443, scrapings from the glove, and FB07-1469, amylase from ice[d-]tea container, was uploaded into [the] New York State DNA Index in Albany.” Joint App’x 23. The profile from the crime-scene evidence was then compared to known individuals in that database. The database included Washington’s DNA profile. The parties stipulated that “the New York' State DNA Index revealed that the male DNA profile developed from the evidence described above matched the defendant, Kenneth Washington’s, DNA profile contained in the New York State DNA Index.” Id. at 24. DNA Index personnel informed the NYPD of the match.
Washington was arrested. After Washington’s arrest, Detective Patrick Curran, who testified at trial, used a buccal swab to
2. Yanojfs Analysis of the DNA Evidence
At Washington’s trial, the state relied on the testimony of Natalyn Yanoff, a Level Three Criminalist with OCME, who testified as an expert in the field of DNA analysis, forensic biology, and the statistical significance of DNA profiles, to establish that the DNA profiles developed from the evidence recovered at each crime scene matched the DNA profile of Washington developed from the buccal swab. Yanoff testified that as a Level Three Criminalist, she not only “manage[s] [her] own cases in which [she] interpret[s] DNA results, writefs] reports, and testifies] in court if needed,” she also supervises others in the use of various DNA techniques, coordinating the lab’s work flow and reviewing test results. Joint App’x 26. She testified generally about DNA and about the process used by her lab to develop DNA profiles.
Yanoff testified that as to the first crime-scene evidence, she cut or scraped samples from the t-shirt, the sock, and the stocking cap, after receiving these items in sealed condition in the lab. She submitted cuttings of apparent blood stains on the t-shirt and also scraped the collar, “an area [in] which we expect,” she testified, “more cells will be found ... since that area rubs against the neck.” Id. at 52. She testified about her analysis of the t-shirt scrapings, which were determined to contain a mix-toe of cells from the victim and from a then-unknown male. These processes produced sufficient material for the OCME lab to develop a profile of the unknown male, which was placed in a database containing all the DNA profiles generated in her lab.
Yanoff testified that the analysis of the iced-tea container in the third victim’s residence took place some nine months later, and that when the profile from this sample was uploaded into the database, “we found out that it match[ed] the DNA profile that we found in the previous case.” Id. at 65. The male DNA profile developed from the glove scrapings in the second home invasion similarly “matched the DNA profile that we saw on [the] ice[d] tea container and ... on the T-shirt.”
Yanoff made clear that as to the' gloves and iced-tea container recovered from the second and third crime scenes, she did not personally prepare the samples for testing.
During Yanoff s testimony, the state offered four OCME ease files (corresponding to each of the three crime scenes and to the buccal swab), each containing a report from Yanoff as to her conclusions, as well as lab materials related to the DNA testing associated with each file. Only the case file related to the buccal swab is relevant here.
The OCME case file regarding the testing of Washington’s buccal swab contains several documents. The first page is a “Certification as a Business Record” indicating the records in the file “were prepared by [OCME] in the regular course of business within the Department of Forensic Biology.” Id. at 381. The next document is the four-page “Laboratory Report,” signed by Yanoff. This document identifies the suspect (Kenneth Washington) and summarizes Yanoffs conclusion—that the DNA alleles from the buccal swab taken from Washington match the “DNA alleles of the male donor” from each of the three crime scene-derived profiles. Id. at 382.
Several documents follow, including, inter alia: evidence tracking forms bearing chain of .custody notations of various sorts; a “Schedule of Analysis” indicating procedures the sample was to ■ undergo; a “DNA/Serology Submission Tracking & Productivity Form” indicating that one item was examined, toro samples were submitted for DNA extraction, two samples were submitted for quantitation, and two samples were amplified and analyzed at sixteen loci each, two documents each labeled “Control Review Worksheet” stating that. .several tests were passed, and an “Exemplar Evidence Packaging and Exam Worksheet” noting that the cheek- swab was packaged in a white paper envelope approximately 9x6 inches in size that was sealed with tape and had various information written on it.
II. Procedural History
Washington was convicted on all counts on January 19, 2011, at the conclusion of his jury trial. He-was thereafter sentenced principally to ninety years in prison. Washington appealed,' and on July 3, 2013, the Appellate Division affirmed his conviction. With' respect to Washington’s Confrontation Clause claim, the Appellate Division stated:
The court properly admitted files prepared by the New York City Medical Examiner’s Office containing DNA profiles derived from the testing of evidence recovered from the crime scenes, since the documents containing the DNA profiles, which were prepared prior to the defendant’s arrest, “did not,. standing alone, link him to the crime.” The testimony of the People’s expert witness established that she conducted the critical analysis at issue 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. Moreover, the DNA profile generated from the swab of the defendant’s cheek, standing alone, shed no light on the issue of the defendant’s guilt in the absence of the expert’s testimony that it matched the profiles derived from the crime scene evidence.
People v. Washington,
In federal court, in his petition for a writ of habeas corpus, Washington argued before Judge Block that the admission at trial of the OCME file regarding the testing of his cheek swab' and, in particular, the DNA profile that this testing produced “violated his Sixth Amendment right to confrontation because he was not afforded the opportunity to cross-examine the lab technicians who generated [the profile].” Washington v. Griffin,
DISCUSSION
We review de novo a district court’s disposition of a petition for a writ of habeas corpus. Tavarez v. Larkin,
A principle is “clearly established Federal law” for .§ 2254(d)(1) .purposes “only when it is embodied in a [Supreme Court] holding,” Thaler v. Haynes,
Washington renews his argument that the information contained in the OCME case file concerning the DNÁ.testing of his buccal swab was testimonial. In Washington’s view, the admission of this file during YanofPs testimony absent his opportunity to cross-examine each of the “non-testifying OCME analysts who conducted DNA testing of [his] buccal swab” and made notations in the file violated his Sixth Amendment right of confrontation. Pet’r’s Br. 25. Further, the Appellate Division’s decision-rejecting this claim was contrary to, or involved an unreasonable application of, clearly established law set out by the United-States Supreme Court in Melendez-Diaz v. Massachusetts,
I
The Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, guarantees a criminal defendant “the right ... to be confronted with the witnesses against him.” U.S. Const. amend. VI; see Pointer v. Texas,
To establish his Confrontation Clause claim, Washington relies primarily on the Supreme Court’s decisions in Melendez-Diaz and Bullcoming, which addressed the meaning of “testimonial” in the context of laboratory testing of, respectively, purported narcotics and actual blood, for its blood alcohol content. At the start, however, both cases are sufficiently distinguishable from the circumstances here as to draw into question Washington’s contention that the Appellate Division, in rejecting his claim based on these cases, unreasonably applied clearly established Federal law or acted contrary to it. See § 2254(d)(1).
Melendez-Diaz was a narcotics case in which the prosecution introduced into evidence multiple bags of purported cocaine that had been in the possession of the defendant and his associates. The Supreme Court held that the sworn, notarized certificates of lab analysts, each reporting on the weight of the bags and affirming that the contents had been examined and determined, in fact, to be cocaine, were testimonial, and could not be admitted at trial absent the defendant’s opportunity to cross-examine the declarants.
Bullcoming was to similar effect. The Court held there that admission at trial of a lab report containing a testimonial certification that Bullcoming’s blood-alcohol concentration was above the threshold for aggravated DWI was improper. The report in Bullcoming, although not notarized, otherwise closely resembled the “certificates of analysis” in Melendez-Diaz: law enforcement had provided evidence to a state laboratory for testing, an analyst had tested the evidence and prepared a certificate attesting to the results, and this certificate was “formalized,” as the Bullcoming Court put it, “in a signed document” for the purpose of proving the facts it alleged in the context of a criminal proceeding.
The circumstances here are not the same. Washington does not rely on a lab analyst’s affidavit, as in Melendez-Diaz, or on the formal certificate of an analyst attesting to his results, as in Bullcoming, to make out his Confrontation Clause claim. He instead points to a medley of unsworn, uncertified notations by often unspecified lab personnel, working, as Yanoff testified, “the same way as [an] assembly line.” Joint App’x 39. Such notations, standing alone, are potentially as suggestive of a purpose to record tasks, in order to accomplish the lab’s work, as of any purpose to make an out-of-court statement for admission at trial. But as we stated in United States v. James,
II
The differences between Melendez-Diaz and Bullcoming and the present case in themselves cast doubt on Washington’s contention that he has satisfied § 2254(d)(l)’s demanding standard. This conclusion becomes only clearer in light of the Supreme Court’s more recent decision in Williams v. Illinois,
Williams involved a state DNA expert’s testimony at a rape trial, that a DNA profile developed from the victim’s vaginal swabs by an outside commercial lab matched the defendant’s profile produced at the lab where the expert worked.
The Williams plurality opinion, written by Justice Alito, offered two alternative bases for concluding the expert’s testimony did not implicate the Confrontation Clause. -First, the plurality determined that to the extent the substance of the Cellmark report (which was not itself introduced into. evidence) was admitted, it was not admitted for its truth but rather as a basis for the expert witness’s opinion that the DNA profile developed by Cell-mark matched the accused’s DNA profile, 132 S.Ct. .at 2239-40. Second, the plurality alternatively concluded that even assuming the contents of the report were admitted for their truth, these contents were not testimonial because “the primary purpose of the Cellmark report, viewed objectively, was not to accuse [the] petitioner or to create evidence for use at trial.” Id. at 2243. The plurality deemed it significant, inter alia, that when the Illinois State Police lab sent its sample to Cellmark for analysis, “its primary, purpose was to catch a dangerous rapist who was still at large, not to obtain ,evidence for use against [the] petitioner, who was neither in custody nor under suspicion at that time.” Id, More generally, the plurality noted that, as here, when “numerous technicians work on each DNA profile”—“[w]hen the work of a lab is divided up in such a way”—“it is likely that -the sole purpose of each technician” is not to make statements for admission at trial, but “simply to perform his or her task .in accordance with accepted procedures.” Id. at 2244.
As Justice Kagan pointed out in dissent, neither of the plurality’s rationales commanded a majority. Id. at 2277 (Kagan, dissenting). Justice Thomas rejected both of the plurality’s proffered bases for the Court’s holding but nevertheless concurred in the judgment, agreeing that no Confrontation Clause violation had occurred. See id. at 2255, 2256 (Thomas, concurring in
Against this backdrop, we cannot say, as AEDPA requires, that the Appellate Division ruling that Washington challenges— namely, that the admission of the OCME case file -about the DNA testing of his buccal swab did not offend the Confrontation Clause—represented such an “‘extreme malfunction[-]’ ” in the state criminal justice system that “there , could be no reasonable dispute that [the state court] was wrong.”
Ill
A state court cannot be faulted for declining to apply a specific legal rule “that has not been squarely established by [the Supreme] Court,” Harrington,
Recognizing that the majority decisions in both Melendez-Diaz and Bullcoming applied to “formalized out-of-court statements,” id. at 46, and that Justice Thomas
We disagree. Both in the affidavits at issue in Melendez-Diaz and in the testimonial certification in Bullcoming, lab analysts affirmed, in essence, that they had performed particular tests, adhered to precise protocols, and produced specified results. As the Melendez-Diaz Court put it, the analysts’ out-of-court “certificates” were “functionally identical to live, in-court testimony,” id. at 310-311,
Washington next argues that even if Williams, with its discordant opinions, changed “the rule of Bullcoming and Melendez-Diaz,” it merely narrowed the definition of “testimonial” and the evidence in his case falls within that narrowed definition. Pet’r’s Br. 25. He contends that the “clearly established” rule of this precedent is “that formalized out-of-court statements made by forensic analysts that have the primary purpose of building a case against a targeted individual” are testimonial, and so subject to the Confrontation Clause. Id. at 46. Any confusion emanating from the fractured Williams Court, Washington argues, relates only to “how far beyond the targeted suspect scenario the primary purpose
This argument, too, is. unavailing. The Supreme Court has unequivocally stated that a principle is “clearly established” for the purposes of § 2254(d)(1) “only when it is embodied in a [Supreme. Court] holding.” Haynes,
Moreover, even were we to assume that this is not a problem—that we may in theory take as clearly established a narrowed version of “testimonial” emanating from the plurality opinion, plus Justice Thomas’s concurrence—Washington fails to show that reasonable jurists would all agree as to the narrowed rule to be drawn from the plurality opinion.
And Washington ignores other aspects of what the plurality opinion does, in fact, say. As to DNA testing in particular, the plurality also deemed' it “significant” that when the work of a lab is divided up among a number of analysts, the likelihood is that the only purpose of each analyst is “to perform his or her task in accordance with accepted procedures”—at least suggesting that in such circumstances, the primary purpose of out-of-court notations may not be testimonial, regardless whether a suspect has been identified. Id. at 2244. “[T]he use at trial of a DNA report prepared by a modern, accredited laboratory,” the, plurality further observed, “ ‘bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.’” Id. (quoting Bryant,
In such circumstances, we agree with the district court that “whether the plurality would hold that the primary purpose of those preparing Washington’s DNA profile implicated the Confrontation Clause, is, at the very least, debatable.” Washington,
‡ ‡ ⅜
To be clear, our conclusion today is narrow. We note that the New York Court of Appeals recently decided in People v. John,
We need not and do not decide whether this case meets the New York State standard. As the New York Court of Appeals noted in John, courts around the country are assessing the scope of Confrontation Clause rights in the context of DNA evidence in the waké of Williams. Id. at 314-15,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Washington’s petition.
Notes
. The factual background presented here is derived from exhibits, testimony, and a stipulation offered at trial.
. Washington refers to the laboratory personnel whose work is at issue here as "analysts,” E.g„ Pet’r’s Br. 2. The state refers to these individuals as “analysts” and "technicians.” Compare Respondent's Br, 3 with id. 18, For purposes of this opinion we refer to these workers as "analysts.”
. Scrapings from both the blood-stained t-shirt and bloody sock generated a DNA profile that matched the NYPD detective. The OCME analysts were unable to generate a DNA profile from the stocking cap.
. Amylase is an enzyme present in saliva.
. A buccal swab is a Q-tip like instrument that is rubbed along the inside of the cheek for the collection of cells.
. There are several steps to developing a DNA profile, some or all of which may be performed by different analysts, and multiple times. When evidence is submitted for testing, analysts prepare a sample and then extract DNA from the cells in the sample. If there is enough DNA to proceed, analysts then make millions of copies of portions of the DNA, which is called amplification. Next, analysts, focusing on the very small percent of DNA that varies from person to person, examine the DNA to determine what alleles are present at specific locations, called loci. (Alleles are alternative forms of a gene found at a particular locus on the DNA strand.) The resulting DNA profile is a string of numbers representing the particular alleles found at each of the tested locations.
.Yanoff affirmed that the evidentiary items from each crime scene "were never at the lab at the same time.” Id. at 78.
. In his petition, Washington limits his challenge to the admission of the case file regarding the DNA testing of his buccal swab, and does not challenge the admission of the OCME case files concerning the DNA testing of the crime-scene evidence.
. Indeed, the document, as the Supreme Court observed, “contained] a legend referring to municipal and magistrate courts’ rules” providing for the admissibility of certified blood-alcohol analyses. Bullcoming,
. Although Washington has failed to meet AEDPA's exacting standard for the issuance of a writ of habeas corpus, we note that the Appellate Division erred insofar as it held that DNA profiles, as a categorical matter, are non-testimonial because "standing alone, [they] shed no light on the issue of the defendant's guilt.” As previously noted, see supra at 402, at least five Justices in Williams (Justice Thomas in' his concurrence and those joining Justice Kagan’s dissent) agreed that the introduction of DNA profiles could, under proper circumstances, run afoul of the Confrontation Clause.
. As already explained, Yanoff also testified to the foundation requirements for admitting the OCME file as a business record.
. As already noted, Washington- does not press a Confrontation Clause claim as to the OCME files related to the evidence found at each crime scene, all of which was tested prior to his identification as a suspect.
. In addition, even taking as clearly established Washington's purported rule (that "for- • malized out-of-court statements by forensic analysts that have the primary purpose of building a case against a targeted individual are testimonial,” Pet’r’s Br. 25), Washington—as we noted above—does not show that the analysts’ notations were "formalized” for the purposes of Justice Thomas’s concurrence, much less does he put this issue beyond possibility of "fairminded disagreement,” see Harrington,
Concurrence Opinion
concurring:
Mindful of AEDPA’s “intentionally difficult [standard] to meet,” Woods v. Donald, — U.S. —,
One approach to addressing these concerns is to spend years litigating every instance a DNA profile is offered at trial in order to -determine whether or not the Confrontation Clause is. implicated. I suggest what. I think is ,an easier and more efficient route. For cases scheduled for trial, the prosecution could order that a defendant’s DNA sample be collected and tested again and supervised by an analyst who is prepared and qualified to testify. This approach mirrors the recommendation of the. National Research Council Committee on DNA Forensic Science, which has, stated that “[t]he ultimate safeguard against error due to sample mixup is to provide an opportunity for retesting,” and that “[i]n most cases, it is possible to retain portions. of the original evidence items and portions of the samples from different stages of the testing.”
The supervising analyst need not conduct every step of the process herself. Instead, by supervising the process, she could personally attest to the extraction and correct labeling of the sample, that a proper chain of custody was maintained, and that the DNA profile match was in fact a comparison of the defendant’s DNA to that of the DNA found on the crime scene evidence.
The State might retort that such testing and testimony would be unduly expensive, requiring additional time and resources to conduct a DNA test anew and providé a testifying analyst at trial. Those costs, it seems to me, are far outweighed not only by the additional assurance provided by the defendant’s opportunity to cross-examine, but also by the exorbitant costs in both time and resources implicated by a defendant’s subsequent appeal challenging the denial' of such an opportunity.
Consider the case history here. Washington appealed his conviction on Confrontation Clause grounds first to the Appellate Division of the New York Supreme Court, see People v. Washington,
To be sure, the analysts conducting the second test might make a mistake. But if DNA testing is so fickle that we cannot reasonably expect a second test to produce accurate results, this is an indictment of DNA evidence as a whole rather than the narrow solution of retesting. Moreover, retesting is likely to produce more reliable results than the first time around. The supervising analyst would be physically present during the most error-prone portions of the analysis, would review the findings of the individual analysts at the end, and could utilize any additional measures adopted by the original crime lab, such as running two tests to confirm the results. The. probability that the second
DNA evidence has greatly enhanced the State’s ability to investigate crimes and identify suspects, while also exonerating many wrongly convicted of crimes they did not commit. As with any rapidly developing technology, however, its adoption has sometimes outstripped the law’s capacity to oversee its judicious use. Such failure may not always result in a constitutional violation, but it does warrant careful consideration and pragmatic policy modifications where feasible. I am hopeful that going forward, prosecutors will endeavor where possible to make an analyst available at trial who was involved firsthand in the handling and testing of DNA, even if that may sometimes require the testing, of a second sample from a defendant scheduled to stand trial. It is far better for all involved—the prosecution, the court, and the accused—that the defendant has the opportunity to challenge DNA evidence at trial, rather than years later on appeal.
. National Research Council, The Evaluation of Forensic DNA Evidence 81 (1996), available at https://www.nap,edu/read/5141/chapter/l.
, U.S. Department of Justice, Office of Justice Programs, National Institute of Justice, DNA 'Evidence: Basics of Identifying, Gathering and Transporting (Aug. 9, 2012), https://www.nij. góv/topics/for'ensics/evidence/dna/basics/ pages/identifying-totransporting.aspx.
. Innocence Project, Preservation of Evidence, www.innocenceproject.org/preservation-of-evidence (last visited Oct. 25, 2017).
. Ideally, the analysts should not be informed that the testing is for the purpose of providing evidence at trial. Where this is not feasible, cross-examination of the supervising analyst would alleviate any concern that there was intentional mishandling of the sample. Of course, the prospect of cross-examination might incentivize more defendants to go to trial. I find this unlikely, however, because the defendant would not know at the time of plea negotiations whether the Government intended to retest the DNA sample (and would therefore call the additional analyst at trial).