Issue: Did the testimony of the testifying DNA analyst violate the Confrontation Clause?

Facts: cellphone found in Queens store after a robbery is swabbed for DNA. CODIS hit to client and
subsequent match to post-arrest buccal swab. Likelihood Ratio (LR) = 25.7 quadrillion.
Defense counsel objected to testifying analyst on Confrontation grounds, arguing that the witness
did not perform any of the DNA testing. The People responded that the witness had performed an
independent analysis of the profiles.

This witness was the technical reviewer for the profile from the cellphone swab and “review[ed] the
data and reports” and conducted his “independent interpretation of the testing data contained in”
the paper file he received. He was the reporting analyst for the post-arrest confirmatory swab but
he did not run the raw data, he received the raw data and went through it and then drew his own
interpretations based on that data. He did not recount any involvement in the stages of testing that
require the exercise of judgment and the opportunity to identify error.

AD2 found no Confrontation Clause violation because the criminalist performed his own
independent analysis of the DNA profiles.

Held (Garcia): the testifying witness’s imprecise and conclusory statements were incomplete to
determine if he was the proper witness to testify about the creation of the DNA profiles to satisfy
Confrontation. Error not harmless.

Court reiterates that only the critical final stage of testing when an analyst must exercise judgment
to cull the data and generate the DNA profile matters for Confrontation. This is when the analyst
looks at the raw data as it comes off of capillary electrophoresis machine and is processed by
software (GeneMapper or GeneMarker) to concur with software filters/edits and make her own
edits. Raw data is not just the printed paper electropherograms.

As per John, the prosecution must call analyst who witnessed, performed or supervised the
generation of the profile, or who used her independent analysis on the raw data, as opposed to a
testifying analyst functioning as a conduit for the conclusions of others. The testifying analyst must
have either participated in or directly supervised this final step that generates the DNA profile, or
must conduct an “independent analysis” of the data used to do so in a manner that enables
replication of the determinations made at that stage in order to verify the profile.

Guidance?: Prosecution must make a clear record of the stages of the DNA testing in which the
testifying analyst was involved, or what manner of independent analysis the testifying analyst
performed, ensuring that a witness’s testimony establishes his or her involvement at the necessary
stage to avoid a Confrontation Clause error.

CAL Observes: CoA meant what it said in John/Austin/Tsintzelis. Raw data is not the printed file.
While conclusory testimony will not suffice, it’s still a bit murky on which analyst is required and
what the witness needs to say to satisfy Confrontation. And, the Court notes this issue is still open
in SCOTUS (Williams v. Illinois, 567 U.S. 50 (2012)).