Court Defines When Analysis Of Evidence Is Testimonial
By Joel Stashenko
February 20, 2008
ALBANY - The Court of Appeals determined yesterday that analytical analyses of fingerprint or DNA evidence is testimonial, requiring analysts be subject to cross-examination on the witness stand if the evidence is prepared for prosecutorial purposes and offered to establish a defendant's identity.
The ruling, in an issue of first impression for the Court of Appeals, relied heavily on the reasoning of recent decisions by state courts in California, Ohio and Massachusetts.
It came as the Court of Appeals decided whether defendants in two criminal cases, People v. Rawlins, 6, and People v. Meekins, 7, were denied their right to cross-examine accusers who helped assemble scientific evidence against them under the confrontation clauses in the federal and state constitutions.
The judges decided that the constitutional rights of neither defendant were violated, though they reached that conclusion in different ways.
They determined in Meekins, a case involving DNA evidence, that information gathered by technicians was not testimonial because the analysts did not know the identity of the defendant nor his link to possible crimes. In Rawlins, the Court ruled that the linking of the defendant's fingerprints from two crime scenes was testimonial because it was done intentionally by police to tie him to both crimes, but that the error was harmless under the circumstances of the case.
Judge Theodore T. Jones Jr. wrote for the Court in Meekins, a case involving a defendant linked to a previous sexual assault by DNA evidence collected in the victim's rape kit. The mechanical, anonymous nature of the analysis of evidence by technicians means the scientific profiling data was not testimonial, the Court concluded.
The evidence was evaluated for the New York Police Department by Gene Screen, a private, independent analytical company. It was only after the results came back that the Division of Criminal Justice Services linked the evidence to defendant Dwain Meekins, according to yesterday's ruling.
At Mr. Meekins' trial for sodomy, sexual abuse and robbery, Gene Screen forensic biology expert Judith Floyd and Kyra Keblish of the New York City Office of the Chief Medical Examiner both testified about the DNA evidence, its match to Mr. Meekins and its probability of accuracy. Judge Jones' ruling noted that the defendant had the opportunity to cross examine both witnesses about the evidence against the defendant within the meaning of Crawford v. Washington, 541 US 36 (2004).
"Gene Screen's report, a product of multiple analysts, is not the kind of ex parte testimony the Confrontation Clause was designed to protect against," the Court held yesterday.
The documents prepared by the Gene Screen technicians "were not directly accusatory" and "none of them compared the DNA profile they generated to defendant's" profile, Judge Jones wrote.
Other evidence from the files of the medical examiner admitted into evidence against Mr. Meekins was also the work of multiple technicians and it also did not link Mr. Meekins directly to the sex crime, the Court observed.
"It was left to the testifying witness, Keblish, to draw the inference from the evidence that defendant's DNA profile matched those obtained from the rape kit," the Court found.
With the Court of Appeals not having addressed the question of Crawford and the analysis of DNA evidence before yesterday, Judge Jones said the Court's ruling about the Meekins' evidence is consistent with other courts in State v. Crager, WL 4569702, 2007 Ohio LEXIS 3355 (Ohio 2007), Commonwealth v. Verde, 444 Mass 279 (2005) and People v. Geier, 41 Cal 4th 555 (2007).
Prosecutorial Purpose
The Court yesterday came to a different conclusion about the latent fingerprint evidence collected by New York City police against Michael Rawlins. The evidence linked Mr. Rawlins to a flower store robbery and four prior burglaries in Manhattan. It helped lead to his conviction for burglary and a 15-year-to-life sentence as a persistent felony offender.
Analyses of the fingerprint evidence linking Mr. Rawlins to burglaries at the florist and a hair stylist by Detective Artis Beatty were prepared "solely for prosecutorial purposes" and "were accusatory and offered to establish defendant's identity," the Court noted. Mr. Beatty's evidence was entered into the record but he did not testify at Mr. Rawlins' trial.
"Beatty's fingerprint reports, inherently accusatory and offered to prove an essential element of the crimes charged, could be nothing but testimonial," Judge Jones wrote for the Court yesterday.
However, the Court found that the introduction of Mr. Beatty's report was harmless error because another police detective, Arthur Connolly, testified that he reached the same conclusion about the same fingerprint evidence. The defense had the opportunity to cross-examine Mr. Connolly at trial about the evidence in satisfaction of Mr. Rawlins' right to confront his accusers, the Court noted.
The Court unanimously made its determination yesterday as to result, but Judge Susan Phillips Read wrote in a concurring opinion that she believed the scientific evidence in both cases should be treated as business records that are by their nature nontestimonial.
"Neither report resembles the evils the Confrontation Clause addresses," she wrote.
Yesterday's ruling affirmed Appellate Division determinations in both People v. Rawlins, 37 AD3d 183 (2007), and People v. Meekins, 34 AD3d 843 (2006).
Amy Donner of the Legal Aid Society represented Mr. Rawlins; David P. Greenberg from Appellate Advocates argued for Mr. Meekins.
Mark Dwyer, head of appeals for the Manhattan District Attorney's Office, said yesterday that the Court of Appeals' ruling was a "fair and balanced" one about the testimonial nature of both fingerprint and DNA evidence.
Assistant Manhattan District Attorney David M. Cohn argued for prosecutors in Mr. Rawlins' case. Assistant Brooklyn District Attorney Anthea H. Bruffee appeared for the prosecution in Mr. Meekins' case.
In a related case, the Court ruled yesterday in People v. Leon, 8, that defendant Jose Leon had no right to confront, at a predicate sentencing hearing following a sex abuse conviction, the author of a report matching him to fingerprint cards on file from 1976 and 1983 crimes.
The Court unanimously held that predicate sentencing hearings are not trials for purposes of Mr. Leon's right of confrontation under Crawford. The decision affirmed a First Department ruling in People v. Leon, 36 AD3d 538 (2007).
- Joel Stashenko can be reached at jstashenko@alm.com.