United States Supreme Court, June 18, 2012

The testimony of a local forensic specialist that she matched a DNA profile produced by an outside laboratory, Cellmark, to a profile the state lab produced using a sample of blood, does not violate the Confrontation Clause because Cellmark’s report was not offered into evidence to prove the truth of the matter asserted.

During a bench trial for rape, a forensic specialist at the Illinois State Police Laboratory, testified that she matched a DNA profile produced by an outside laboratory, Cellmark, to a profile the state lab produced using a sample of petitioner’s blood. She testified that Cellmark was an accredited laboratory and that business records showed that vaginal swabs taken from the victim were sent to Cellmark and returned.  The forensic specialist did not identify the sample used for Cellmark’s profile or establish how Cellmark handled or tested the sample. Nor did she vouch for the accuracy of Cellmark’s profile.  Cellmark’s DNA profile was never admitted into evidence by either side.  However, during her testimony, the forensic specialist read notations showing that Cellmark had based its DNA report on vaginal swabs taken from the victim.  She also testified that the Cellmark profile matched the suspect’s profile made by state police.  The defense moved to exclude, on Confrontation Clause grounds, the forensic specialist’s testimony insofar as it implicated events at Cellmark.  The trial court admitted the evidence and found petitioner guilty.  Both the Illinois Court of Appeals and the State Supreme Court affirmed, concluding that the testimony from the forensic specialist did not violate petitioner’s confrontation rights because Cellmark's report was not offered into evidence to prove the truth of the matter asserted.

The United States Supreme Court affirmed the lower Court’s decision finding that the form of expert testimony given in this case did not violate the Confrontation Clause.  In both Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U. S. __ (2011), the Court ruled that scientific reports could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation.  In each case, the report at issues “contained a testimonial certification made in order to prove a fact at a criminal trial.”  “Here, in contrast, the question is the constitutionality of allowing an expert witness to discuss others’ testimonial statements if those statements are not themselves admitted as evidence.”  An expert witness may opine based on facts concerning the events at issue even if that expert does not have first-hand knowledge of those facts.  Crawford v. Washington, 541 U. S. 36 (2004), “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.”  “For Confrontation Clause purposes, the references to Cellmark in the trial record either were not hearsay or were not offered for the truth of the matter asserted.”

Alternatively, the Court found that even if the Cellmark report had been admitted into evidence, there would not be a violation of the Confrontation Clause because the report was produced prior to the suspect being identified.  “The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose.”  Besides which, Justice Alito wrote, the profile is not inherently inculpatory.  “On the contrary, a DNA profile is evidence which tends to exculpate all but one of the more than 7 billion people in the world today.”

The Court affirmed the lower Courts’ decisions and the defendant’s conviction for rape was upheld.