Court: United States Court of Appeals for the Armed Forces
Case Name: United States v. Katso
Citation: 2015 CAAF LEXIS 588
The CCA held that the state’s forensic expert’s testimony violated the appellee’s Sixth Amendment rights because the testimony relied on a report by an out-of-court declarant.
A general court-martial convicted the appellee for burglary, unlawful entry, and aggravated sexual assault. The appellee allegedly violated UCMJ articles 120, 129, and 134, 10 U.S.C.S. §§ 920, 929, and 934. The general court-martial sentenced the appellee to a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 10 years. The U.S. Air Force Court of Criminal Appeals (CCA) dismissed the sentence. The CCA held that the state’s forensic expert’s testimony relied on a report written by an out-of-court declarant. Therefore, this violated the appellee’s right to confrontation under the Sixth Amendment.
The State’s Forensic Expert Witness
The state’s forensic expert witness worked at an army forensic laboratory. He reviewed and testified about procedures used to test DNA samples of the appellee and his alleged victim. The expert witness opined on the results of the DNA analysis after reviewing the case files.
The examiner tested the evidence collected from the appellee and the alleged victim as per protocol, because:
- The evidence was sealed when received
- The evidence was inventoried correctly
- The samples were correctly analyzed
- DNA profiles were generated from known blood of the appellee and the alleged victim
- The swabs collected from the alleged victim contained semen
- Rectal swabs from the alleged victim showed DNA consistent with the appellee and the alleged victim
- Unidentifiable male DNA was found on the alleged victim’s vaginal swab
- DNA consistent with the alleged victim and the appellee was found on the appellee’s scrotal and penile swabs
The expert independently reviewed case files. He then concluded that the lab technician had taken the necessary quality control steps. Furthermore, the forensic expert witness determined that the findings were logically consistent. He re-analyzed the DNA profile data produced to check the samples and recalculated the frequency statistics.
The appellee argued that the testimony relied on an out-of-court declaration and was thus inadmissible.
The court noted it was necessary to ask questions to determine whether an expert witness had broken the Confrontation Clause. Firstly, did the expert’s testimony rely on out-of-court statements that were testimonials themselves? Secondly, if so, was the testimony still admissible because the expert drew his findings based on knowledge of the case facts? As such, would the expert himself, not the out-of-court declarant, be the witness against the appellee under the Sixth Amendment?
The court noted that many of the out-of-court data and statements the expert relied on were not testimonials. This included computer-generated data and the case file containing papers from the Air Force Office of Special Investigations. The expert also reviewed the handwritten notes from the employee responsible for the initial analysis of the sexual assault kits. The notes included a description of the samples upon arrival and quality control procedures. This testimony was, therefore, admissible.
The court noted that the U.S. Supreme Court judgments that discussed the defendant’s rights under the Confrontation Clause did not imply that every person who touches evidence or involved in analyzing it had to testify.
The court also noted that even if the expert relies in part on statements provided by an out-of-court declarant, the testimony’s admissibility depends on the extent of independent analysis conducted, citing United States v. Blazier (Blazier II).
The appellee had a Sixth Amendment right to question the laboratory technician about whether he followed the required protocols. Thus, the appellee also had a right to question whether the technician may have contaminated the evidentiary DNA sample with the known DNA sample. However, the appellee did not have this opportunity.
The court held that the military judge did not abuse his discretion in denying the appellee’s motion and then reversed the CCA decision.
Key Takeaways for Experts
It’s important for experts to rely on their own methodology rather than solely on the testimonials of others. In this case, the forensic expert based his testimony on notes, computer-generated data, and case files. Experts should conduct their own analysis and independently review all the documents pertaining to the case.