In an unpublished opinion in United States v. Hinojos, No. 201300305 (N-M. Ct. Crim. App. Jan. 27, 2015) (per curiam) (link to slip op.), a three-judge panel of the NMCCA reverses the appellant’s convictions for aggravated sexual assault of a child and abusive sexual contact of a child, both in violation of Article 120 (2006), after concluding that the Government’s DNA expert improperly testified that DNA contained on a buccal swab matched the DNA found in the victim’s underwear. The court concludes that this testimony was improper because:

The buccal swab itself was never offered as evidence and there was no evidence presented to establish that this buccal swab was actually obtained from the appellant.

Slip op. at 5. Further, the court finds:

In the appellant’s case, the Government failed to provide authenticity evidence for the buccal swab allegedly belonging to the appellant. The source and authenticity of the buccal swab was required before the expert could offer an opinion as to a DNA match involving that swab. Accordingly, we hold that the military judge, without such foundation evidence, abused his discretion in allowing the expert to testify that he tested the DNA found in HC’s underwear to the DNA from the buccal swab purportedly belonging to the appellant and that there was a match.

Slip op. at 6. The CCA then considers whether this error was prejudicial, concluding that it was prejudicial because appellant’s identity as the perpetrator was a hotly-contested issue in the case:

The record of trial depicts a case in which forensic evidence served as significant proof that a crime occurred and identified the appellant as the perpetrator. The Government has not met its burden of demonstrating that judicial error in admitting expert testimony without the underlying foundation did not have “a substantial influence on the findings.” McCollum, 58 M.J. at 342. Accordingly, the findings of guilty to the charge and two specifications are set aside.

Slip op. at 8. Notably, the appellant’s counsel objected to the expert’s testimony as lacking foundation. This objection preserved the issue and placed the burden on the Government to prove lack of prejudice. Had counsel failed to object, the appellant would have had the burden to prove prejudice under the plain error standard (as discussed here).

The CCA authorizes a rehearing.

15 Responses to “The NMCCA reverses convictions due to inadequate authentication”

  1. J.M. says:

    I’m assuming the lab was USACIL? Sounds like they’re still having problems.

  2. dyskolos says:

    Oh my!  Don’t Trial Counsel use checklists anymore? 

  3. Broken System says:

    Amateur hour.  That disturbing lack of expertise is more common in Army practice.

  4. Monday morning QB says:

    “The buccal swab itself was never offered as evidence and there was no evidence presented to establish that this buccal swab was actually obtained from the appellant.”  One wonders how the TC missed needing to call the person who took the swab from the accused and delivered it to the lab for testing. Breaks in the chain of custody typically go to weight, not admissibility, but in a case like this you just can’t have that.     

  5. stewie says:

    Really? Any evidence of this claim Broken System?  I think the Navy is right to have a crim law track, and the Army is wrong not to, so if you have evidence that the former system reduces errors, I would love to see it as justification for why the Army should create one.

  6. AnonymousJA says:

    A crim law track would be like combat training for infantry officers or platform specific training for aviators. Do not see the need, this is a one off case.

  7. stewie says:

    So your argument then is that attorneys just “know” solely from OBC and maybe ITAC (or equivalents) how to be good in criminal law thus no additional training is really needed?
    Then why the parade of gross errors and issues?  If it isn’t a training problem, or an experience problem (which would be solved by a crim law track), then what is the problem? Or do you see no problem?
    This is a “one-off” case suggests to me you don’t see much of an issue.

  8. LT Caffey says:

    I think AnonymousJA’s post would have benefited from a “Sarcasm Alert.” 
    Please let it be sarcasm.

  9. stewie says:

    Are you strenuously objecting?

  10. LT Caffey says:

    Yes I am, but at my age everything is strenuous. That’s why I stick to doing various administrative things.  I have no responsibility whatsoever.

  11. Broken System says:

    @ Stewie
    Sadly, no empirical evidence to support my point, just years of experience and a nearly worthless “expert criminal law practitioner” skill identifier.
    I agree with you that the Army needs a crim law track.  Maybe that would stop the endless parade of junior folks into and out of criminal law.  In the Army if you gain experience you are “putting yourself at risk” for promotion.  Sad when you think this is our job and the JAG Corps’ responsibility to the Army, ie running a judicial system.
    The closest evidence I can point you to to illustrate my point are US v. Muwwakkil, which has been the subject of a thread in this blog; and US v. Gray.  Those are not quite the same as the subject case of this thread but you can see a common theme.  US v Gray is linked below.

  12. stewie says:

    Certainly true, although it seems to me, if you gain experience primarily on the government side, the risk is significantly reduced compared to gaining it on the defense side.  I’m unclear why this seems to be the case.  I can only guess that the concern is “going native” but as someone with more defense time than government time, I’ve not seen it, nor do I think I exhibit it.  I do think the defense side gets better training, and ends up with a deeper understanding of criminal law (and I found that my time on the defense side made me better on the government side by far in understanding the law, the potential tactics/strats of the defense, and in identifying the “right result.”).

  13. Dew_Process says:

    The underlying issue in Hinojos was really an MRE 901(a), Authentication issue, which unfortunately the opinion really does not discuss.  One of the more common applications of the authentication issue occurs in the Crawford / Melendez-Diaz / Bullcoming types of cases where the government attempts to authenticate some type of evidence from a lab via hearsay testimony.  Now that may go to the “weight of the evidence,” but here, the TC didn’t even go that far, hence the issue and problem.
    HERE’s a good, basic primer on “Authentication” principles.  And if any of you have access to DA PAM 27-22 (1975), Military Criminal Law Evidence, that’s got a whole chapter on “authentication” principles under military law.

  14. anonymousJA says:

    LT Caffey, you are correct, there should have been a sarcasm alert. In addition to the training/experience problem, there is an accountability problem. In the civilian sector with elected DAs (maybe a different problem), the challenger would publicize, “Child predator walks free because of District Attorney.” In our system, what would be the effect of something similar on a fitness report? Currently, what system of accountability is in place for mishandling criminal cases?

  15. Advocaat says:

    (1) This was not a difficult evidence issue–a law student on a mock trial team would have connected these dots, (2) TC’s supervisory attorney should be held accountable for his/her subordinate’s substandard performance, (3) the “expert” also deserves a share of the booby prize if he did not educate TC about how to lay a proper foundation, (4) the DNA-shedding accused will be ready to deal after a 7-year sentence, but (5) the government will no doubt fail to leverage its position in a sensible manner and then promote all involved after it wastes my tax dollars securing a lesser sentence.