People v. Sean John
AD2 order dated August 6, 2014, affirming judgment of conviction. Decision below: 120 AD3d 511, 990 NYS2d 597. Hall (AD dissenter), J., granted leave October 20, 2014. Argued February 10, 2015. (Taken off SSM).
ISSUE PRESENTED: Whether the police properly seized and opened without a warrant, under the “plain view” doctrine, a box marked “Smith & Wesson” found in the common storage area of a brownstone apartment building. (Assigned counsel: Dina Zloczower & Lynn W.L. Fahey, Appellate Advocates 111 John St., 9th Floor, NYC 10038.)
Background Facts: After a gun was recovered from the basement of a multifamily house in which the suspect in a gun-possession case resided, an officer obtained swabs from the gun. He submitted them to the Office of the Chief Medical Examiner (“OCME”) for testing, labeling the package with the defendant’s name and writing that the “PERP HANDLED THE FIREARM.” Upon Mr. John’s indictment, John's exemplar was also submitted for comparison. At trial, a single analyst, who had participated in none of the testing steps for either sample but who had merely “reviewed” and “agreed with” the conclusions, testified.
Issue facing the court: Whether the DNA testing reports admitted through a non-testifying analyst were testimonial such that the prosecution was required to call the testing criminalist(s) to comply with the Confrontation Clause.
Held: Yes, the reports were testimonial, and, yes, at least one analyst making discretionary determinations in testing a sample—or at the very least a supervisor or witnessing analyst-must testify. “Surrogate” testimony won’t fly; instead, independent analysis of the raw data is the touchstone.
In framing the issue rather starkly, the Court suggests this is an easy case: the prosecution introduced DNA reports without “producing a single witness who conducted, witnessed or supervised the laboratory’s generation of the DNA profile from the gun or defendant’s exemplar.” The Court found that the fact pattern here was analogous to that in Bullcoming v. New Mexico, 564 U.S. 647 (2011), in which the Supreme Court held that the Confrontation Clause was violated where the person who testified was not the one who had actually tested the evidence that incriminated the accused.
What this case makes clear is that DNA is powerful, probative evidence-but testing and obtaining results is not as objective and “machine-generated” as the dissent would believe. Rather, the testing process—which includes such steps as generating an electropherogram and “editing” out low peaks—is infused with subjectivity, with analysts engaging in “independent and qualitative analysis” of the data during the testing. The Court also expressed some concern about the bias that might infiltrate the analysis when a sample is labeled as coming from a “PERP” rather than subjected to blind testing—even though OCME is an independent agency, and even though precedent had removed this factor from consideration when determining whether evidence is testimonial. The reality, the Court states, is that OCME’s mission is, in part, to test evidence coming to it from law enforcement.
The dissent, on the other hand, invokes an imagined parade of horribles that would result if prosecutors were required to call testing analysts as witnesses, believing that the administration of justice would grind to a halt. Yet, perhaps the dissent’s point that the majority does not take its analysis to the logical conclusion is well taken. After all, if reports are generated from a series of steps at which human error is possible such that a testing or supervising analyst is a required witness for the final stage of testing, “there is no basis to excuse analysts involved in ‘preliminary testing stages’ from cross-examination at trial.”
In light of some confusion about where the law stands, a take-away for trial lawyers is to object. In all likelihood, the prosecution—and perhaps OCME, which uses a multiple-analyst system for testing evidence—will modify practices to conform to the decision’s requirements. Further, while not expressly adopting the narrowed “primary purpose” test articulated by the plurality in Williams v. Illinois, 132 S.Ct. 2221 (2012), the Court is clear that the lab reports here fit within even that narrowed version of the test for determining whether a document was prepared for litigation. However, open questions remain ripe for litigation. Most critically, which analyst(s) must testify? Though the Court does not adopt an all-analysts rule, there is room for arguing that anyone employing subjectivity during the testing process must testify, especially given the potential for error. Another open question remains where the defendant has not yet been identified as the suspect: are there circumstances in which the report can be testimonial then?