Appeals Court (September 2, 2011)

A defendant's Sixth Amendment right to confrontation is not violated when a DNA expert testifies to his own opinion regarding the DNA testing conducted by another analyst.

The defendant denied that he was the driver of the vehicle, during his trial for operating under the influence of alcohol and leaving the scene. The Commonwealth presented the results of DNA evidence taken from the interior of the defendant's vehicle showing that the DNA profile in the samples matched the defendant's profile. This evidence was presented by a lab supervisor rather than the actual analyst. The supervisor explained the science behind DNA analysis, and how he used the result of lab tests performed on the DNA samples of a non-testifying analyst to conduct his own statistical analysis. During the supervisor's testimony, details of the laboratory analysis from the non-testifying analyst's lab report were presented to the jury in the form of charts.

The defendant was convicted and appealed his convictions arguing that in light of Crawford v. Washington, 541 U.S. 36 (2004), Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), the introduction of the DNA test results through a lab supervisor, rather than the analyst who performed the tests, violated his confrontation clause rights. In Bullcoming, the Court held that the confrontation clause did not permit "the prosecution to introduce a forensic laboratory report containing a testimonial certification--made for the purpose of proving a particular fact--through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.... 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." 131 S.Ct. at 2710. Cf. id. at 2716. Bullcoming left open the question about a case in which a substitute expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." Id. at 2722 (Sotomayor, J., concurring in part). The Supreme Judicial Court previously addressed that issue in Commonwealth v. Barbosa, 457 Mass. 773 (2010), Commonwealth v. Greineder, 458 Mass. 207 (2010), Commonwealth v. McCowen, 458 Mass. 461 (2010), Commonwealth v. Avila, 454 Mass. 744 (2009), and Commonwealth v. Taskey, 78 Mass. App. Ct. 787 (2011). The Court found that those cases are controlling here. Expert testimony by a laboratory supervisor concerning the statistical probability that another individual's DNA would match the DNA profile in question does not violate the confrontation clause, even when the opinion is based on test data not properly admitted in evidence. See Greineder, 458 Mass. at 236. See also Commonwealth v. Nardi, 452 Mass. 379, 387-391 (2008). This type of testimony does not violate the Sixth Amendment, because the expert witness is subject to cross-examination about his opinion as well as "the risk of evidence being mishandled or mislabeled, or of data being fabricated or manipulated, and as to whether the expert's opinion is vulnerable to these risks." Barbosa, 457 Mass. at 791.

The Court found that the laboratory supervisor's opinion was properly admitted in this case. However, the Court found that it was error for the Commonwealth to display for the jury and mark for identification during the lab supervisor's testimony several charts detailing the DNA test results generated from the analysis performed by the non-testifying analyst, but determined that there was no substantial likelihood of a miscarriage of justice.

Note: There is good language in this case reiterating the fact that the defendant was not in custody when he gave statements to the police at the scene and then later at the hospital nor did his blood sample, taken by hospital personal for the diagnosis and treatment of the patient, implicate the Fourth Amendment to the constitution.