In an unpublished opinion in United States v. Hinojos, No. 201300305 (N-M. Ct.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.