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Scientific tests and Crawford

The state sends blood samples out to the Bureau of Criminal Investigation -- Ohio's counterpart to CSI -- for DNA analysis.  The tests determine that the victim's blood is on the defendant's shirt, and based largely on those results, the defendant is convicted of aggravated murder.  One problem:  the analyst who conducted the test is on maternity leave at the time of trial, so the prosecutor has another analyst testify, based upon his review of her report.

That wouldn't have been a problem five years ago: the original analyst's report would have qualified under the "business record" exception for hearsay.  But in 2004, the US Supreme Court held in Crawford v. Washington that "testimonial" statements could not be admitted at trial without violating the defendant's right to confront witnesses, even if the statement qualified under the hearsay rules.  In 2006, in State v. Stahl, the Ohio Supreme Court defined a testimonial statement as "one made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."  The original analyst certainly would have made her report in the belief that it would be available for use at trial;  the introduction of that report by someone who hadn't prepared it would thus clearly run afoul of Crawford and Stahl.

Or not, the Supreme Court held last week in State v. CragerRelying chiefly on its decision in State v. Craig, where it had permitted testimony regarding an autopsy from someone other than the person who performed it, and a California Supreme Court case on the admission of DNA evidence under circumstances similar to that in Crager, it reversed the 3rd District's decision holding that such evidence was testimonial and thus barred by Crawford.

The 3rd District had certified its result based upon a conflict with another opinion out of the 6th District, and that may have been a significant factor in the outcome of Crager.  The 6th District decision, State v. Cook, had dealt with the admission of breathalyzer test results:  the state had introduced a packet of documents to show that the breathalyzer had been properly tested, and that the officer performing the test was certified to do so.  The court held that was permissible under Crawford, as long as the officer who actually conducted the test testified at trial.  It would have been difficult to affirm both Crager and Cook, and the Supreme Court wasn't about to require everybody who calibrated a breathalyzer to show up at trial, so it's not going to require the person who actually performed the DNA analysis to show up, either.

The decision is accordingly broad, and quite possibly too much so:  the syllabus flatly states that "records of scientific tests are not 'testimonial' under Crawford v. Washington."  The opinion itself concedes that other courts have come to the opposite conclusion, and as the dissent points out, the majority's reliance on Craig, at least, is arguably misplaced:  the coroner is an agency wholly independent of the prosecutor's office, and the obligation to perform an autopsy is imposed by statute, and thus outside the definition of a statement made "with the expectation that it would be used at trial."

Central to the outcome is the Court's apparent belief that it really doesn't matter whether the defense gets to cross-examine the person who actually did the test or someone who's merely knowledgeable about the process and read the test results.  This is apparently premised on the idea that "BCI maintains its independence to objectively test and analyze the samples it receives."  This notion reaches its apogee in visiting Judge Kline's concurrence, which attacks the appellate court's conclusion that "the fact that these [DNA] reports are prepared solely for prosecution makes them testimonial."  According to Judge Kline,

absent evidence to the contrary, it should be presumed that the primary purpose behind any county prosecutor's request for DNA analysis is to seek justice, not merely to prosecute or convict a defendant. . . the prosecutor asked BCI for the DNA analysis through glasses of justice, not glasses of conviction.

There's no question that the world would be a better place if it were the one imagined by Judge Kline, but it's not; as this article indicates, there's no shortage of crime labs or prosecutors, or both, working to ensure that the question of innocence takes a back seat to the pursuit of convictions:

A 2002 audit of the crime lab in Houston, Texas, found that experts may have given "false and scientifically unsound" testimony in thousands of criminal cases. Subsequent reports showed that crime lab employees often tailored their tests to fit police theories about how a crime was committed. . . A 2005 audit found critical errors in the state of Virginia's crime lab, considered one of the best in the country. The audit found that senior-level experts in the lab were too often persuaded by political pressure to secure convictions.

Perhaps the highest priority of a criminal justice system in a democracy is ensuring that innocent people aren't convicted.  Making an a priori assumption that the prosecution has that goal foremost in mind isn't the best way of achieving it.

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