DNA Expert Testimony in California as a Violation of the Sixth Amendment

In Crawford v. Washington (2004) 541 U.S. 36, the United States Supreme Court held the Sixth Amendment's right to confront witnesses precludes the admission of testimonial hearsay against a defendant in a criminal trial unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination even if the hearsay statement falls within a recognized exception to the hearsay rule. (Id. at pp. 53-54.) Without providing an exhaustive classification of all conceivable statements, in Davis v. Washington (2006) 547 U.S. 813, the Court offered some guidance for determining when statements are testimonial: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." (Id. at p. 822.) In People v. Geier (2007) 41 Cal.4th 555 the California Supreme Court reviewed Crawford, Davis and other confrontation clause cases to determine whether it was a violation of the Sixth Amendment for the prosecution's DNA expert to testify based on her analysis of DNA test results obtained by another analyst who was not available for cross-examination at trial. (Geier, at pp. 596.) The Court concluded a hearsay statement is "testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, a statement that does not meet all three criteria is not testimonial." (Id. at p. 605.) The Court held reports of DNA testing do not meet the second criterion because they "constitute a contemporaneous recordation of observable events rather than the documentation of past events." (Ibid.) Additionally, when analysts performing DNA testing contemporaneously record their actions, observations and test results, they are not acting to incriminate a defendant because their reports have the potential to be either inculpatory or exculpatory. Therefore, even though analysts may be working for the police and can reasonably anticipate the use of the test results at trial, they are not acting as accusatory witnesses and are not testifying when they prepare their reports. (Id. at pp. 605-607.) Accordingly, the Court held the DNA testing report was not testimonial and its admission without the ability to cross-examine the analyst who prepared it did not conflict with Crawford or violate the defendant's Sixth Amendment rights. (Geier, at pp. 605-607.) After Geier the United States Supreme Court held in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 129, that the Sixth Amendment precluded the People from introducing into evidence at trial affidavits, sworn to by government laboratory analysts before a notary public, showing that forensic analysis of a seized substance determined it was cocaine. (Id. at 129.) The Supreme Court held the affidavits were testimonial statements because they were the functional equivalent of live, in-court testimony and were "'"made under circumstances which would lead an objective witness reasonably to believe that the statements would be available for use at a later trial."'" (Ibid.) Additionally, the Court concluded the analysts were accusatory witnesses because the affidavits proved facts necessary to the prosecution's case. (Id. at 129.) The Court implicitly rejected much of the Geier Court's reasoning supporting its conclusion reports of DNA testing are not testimonial, including that the "near-contemporaneity" of the analysts' observations and recording of events eliminated any Sixth Amendment concerns. (Melendez-Diaz, at 129 S.Ct. at p. 2535.) The California Courts of Appeal have disagreed whether Geier remains good law after Melendez-Diaz, a question currently pending before the California Supreme Court. The court has not addressed the issue in a published opinion, but we observe the two cases are significantly distinguishable: In Geier a witness, subject to cross-examination, was allowed to rely on data in reports prepared by others to offer an expert opinion she was qualified by training and experience to give; in Melendez-Diaz the prosecution sought to admit a document, whose author was not subject to cross-examination, that standing alone provided evidence incriminating the defendant.