CAAF decied the certified Air Force case of United States v. Katso, 74 M.J. 273, No. 14-5008/AF (CAAFlog case page) (link to slip op.), on Tuesday, June 30, 2015. CAAF holds that the testimony of an expert witness did not violate the appellee’s constitutional right to confront the witnesses against him, reversing the published decision of the Air Force CCA and remanding the case for further proceedings.

Judge Ryan writes for the court, joined by all but Judge Ohlson, who dissents.

The published opinion of the Air Force CCA provides the following facts:

While celebrating her 21st birthday with several friends, Senior Airman (SrA) CA became intoxicated after consuming between 15 and 20 drinks over the course of the evening. At an off-base bar and unable to return to the base on her own, she was assisted back to her room and fell asleep on her bed. SrA CA testified that she woke up when she felt “someone having sex with [her].” She said she was attacked by someone wearing denim pants, glasses, a beanie cap, and a coat. After SrA CA struggled against him, her assailant left, and SrA CA ran into another room and told a friend she had been raped. SrA CA subsequently identified [appellee] as her attacker.

United States v. Katso, 73 M.J. 630, __, slip op. at 2 (A.F. Ct. Crim. App. Apr. 11, 2014). DNA samples were collected from both SrA CA and the appellee. The samples were sent to the United States Army Criminal Investigations Laboratory (USACIL) for analysis, where a forensic examiner named Mr. Fisher conducted an examination and produced a report that showed a match between the appellee’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was then reviewed by a second examiner, Mr. Davenport.

The Government intended to call Mr. Fisher to testify at trial about the DNA results, but he was unavailable due to a family emergency. So the Government offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, which objected on confrontation grounds. The military judge overruled the Defense objection, ruling that Mr. Davenport could testify about his independent findings. But a three-judge panel of the Air Force CCA unanimously concluded that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellee’s right to confrontation. The panel then split 2-1 to find that error prejudicial, reversed the convictions, and authorized a rehearing.

The Government certified the case to CAAF, with the following issue:

Whether the Air Force Court of Criminal Appeals erred when it found Appellee’s Sixth Amendment right to confrontation was violated when the military judge permitted, over Defense objection, the testimony of the Government’s DNA expert, and that the error was not harmless

CAAF now reinstates the appellee’s convictions of aggravated sexual assault, burglary, and unlawful entry. Judge Ryan’s majority opinion conducts a detailed Confrontation Clause analysis of the testimony of Mr. Davenport, however her ultimate conclusions are solidly based on CAAF’s own precedent. Specifically, as Judge Ryan explains:

In the absence of clear guidance from the Supreme Court, we are bound, within the constraints discernible from controlling precedent, to provide a clear rule for the military justice system. Fortunately, we already have a rule. This Court’s precedent makes clear that even when an expert relies in part upon “statements” by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion. Blazier II, 69 M.J. at 224-25.

Slip op. at 24. Applying this clear rule, Judge Ryan concludes:

Experts may “review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions.” Blazier II, 69 M.J. at 224. That is precisely what happened here.

Slip op. at 25.

Mr. Davenport’s testimony included conclusions that:

1. The evidence collected from SrA CA and Appellee was tested “per protocol,”

2. The evidence was received in a sealed condition,

3. The evidence was inventoried properly,

4. The known samples were analyzed properly,

5. DNA profiles were generated “from the known blood of [SrA CA] and [Appellee],”

6. The swabs collected from SrA CA contained semen,

7. DNA consistent with SrA CA and Appellee was found on the rectal swabs from SrA CA,

8. Unidentifiable male DNA was found on SrA CA’s vaginal swab, and

9. DNA consistent with SrA CA and Appellee was found on Appellee’s penile and scrotal swabs.

Mr. Davenport also testified to the likelihood that the recovered DNA profiles would match other individuals. On cross-examination, defense counsel clarified briefly that Mr. Davenport did not conduct the initial tests that produced the DNA profiles. Defense counsel successfully got Mr. Davenport to concede that the DNA analysis did not reveal anything about the nature of the sexual contact.

Slip op. at 11-12 (modifications in original). Judge Ryan considers these conclusions in two ways. First, she considers them as independently deriving from the data that supported the non-testifying expert’s (Mr. Fisher’s) final report. Then she considers the significance of Mr. Davenport’s reliance on Mr. Fisher’s final report in formulating his own conclusions.

On the first point, Judge Ryan concludes that there was no Confrontation Clause violation based on the well-settled principle that an expert may properly base his own opinions on machine-generated data and his own knowledge and experience. See slip op. at 25. Distinguishing the facts of this case from the surrogate expert case of Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011), Juge Ryan explains that in Bullcoming,

the Supreme Court reversed, holding that the “surrogate testimony” of the expert, “who had neither observed nor reviewed [the] analysis,” could not “convey what [the scientist] knew or observed about the events his certification concerned.” Id. at 2712, 2715. . . .

Here, by contrast, no certified report was introduced; Mr. Davenport described, based on his personal knowledge, the tests and testing processes used, and the means for discerning protocol lapses.

Slip op. at 21-22. Further, distinguishing the facts of this case from the third-party laboratory case of Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012), Judge Ryan explains that:

In this case, Mr. Davenport saw all of the calibrations and work underlying the tests, and his close scrutiny and analysis of the results, comparison of the DNA profiles, and rerunning of the statistical analysis differed remarkably from the Williams expert’s bald reliance on the [third party laboratory] report. . .

Slip op. at 23. These facts lead to Judge Ryan’s conclusion that Mr. Davenport properly “review[ed] and rel[ied] upon the work of others, including laboratory testing conducted by others, [and he] reach[ed] [his] own opinions in conformance with evidentiary rules regarding expert opinions.” Slip op. at 25 (quoting Blazier II, 69 M.J. at 224).

On the second point – the degree to which Mr. Davenport relied on the final report of Mr. Fisher – Judge Ryan finds no error in any reliance on Mr. Fisher’s final report:

Even if Mr. Davenport’s in-court statements that semen or DNA were found on the evidentiary swabs and that certain DNA samples matched each other were based in part on the Final Report [of Mr. Fisher], they were admissible. Mr. Davenport performed an extensive independent review of the case file, upon which the Final Report was based, during which he determined that Mr. Fisher took the prescribed quality control measures, that no accidents occurred, and that the results were logically consistent. He compared the ECD numbers on the Final Report to the numeric identifiers found elsewhere in the case file to check that Mr. Fisher had analyzed the correct samples. He reanalyzed the DNA profile data that Mr. Fisher generated to verify the matches that Mr. Fisher reported and recalculated the frequency statistics. This extensive review process, explored in full before the military judge during the hearing on the motion in limine, allowed Mr. Davenport to “satisfy [him]self of the reliability of the results.” See Roach, 95 A.3d at 697. In sum, Mr. Davenport presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions during the hearing on the motion in limine.

Slip op. at 28. She concludes this analysis with a crucial (and oft-invoked) caveat:

That Mr. Davenport did not himself perform aspects of the tests “goes to the weight, rather than to the admissibility” of his opinion. Blazier II, 69 M.J. at 225.

Slip op. at 29. And Judge Ryan also notes the “defense counsel’s limited cross-examination of Mr. Davenport at trial,” prompting CAAF to “decline to assume that [the defense] believed that there were grounds to attack the tests [Mr. Davenport] did not personally perform.” Slip op. at 29.

Ultimately, Judge Ryan and the majority conclude that the Confrontation Clause simply wasn’t violated in this case:

We conclude that this case does not implicate the concern described in Crawford, as Appellee was not deprived of the opportunity to question and confront an opposing witness. 541 U.S. at 50-51. Mr. Davenport’s conclusions regarding the presence of semen and identification of DNA were his own. Even if those conclusions may have derived in part from the Final Report, Mr. Davenport’s reliance on other, nontestimonial factual bases — which also served as the foundation for the Final Report — allowed him to render his own opinion. The witness against Appellee was not Mr. Fisher or the Final Report, but Mr. Davenport, who appeared in person at trial. Appellee had the opportunity to cross-examine Mr. Davenport about his review of the case file and his expert opinion, and, generally, to “subject [the testimony] to adversarial testing.” Id. at 43.

Slip op. at 29 (emphasis added).

Judge Ohlson dissents because he fundamentally disagrees with this ultimate conclusion:

I believe Appellee had a Sixth Amendment right to confront the initial laboratory technician, Mr. Fisher, regarding whether he precisely followed the required protocols for preparing the DNA samples, and thus whether he may have contaminated the evidentiary DNA sample with the known DNA sample.

Diss. op. at 1. The danger of contamination of the samples is a strong theme in Judge Ohlson’s dissent. He notes that:

Mr. Fisher handled and prepared for testing both the material that contained the evidentiary DNA samples and the material that contained the known DNA samples. As a result, there was a potential for contamination of the two samples. This potential was significantly increased if Mr. Fisher did not precisely follow the laboratory’s protocol when handling and preparing the samples, and such contamination would render meaningless any subsequent analysis.

Diss. op. at 2-3. Further:

[I]n motions practice, Appellee not only sought to require Mr. Fisher’s testimony at the court-martial, he also specifically cited as a basis for this demand his concern about potential contamination of the DNA samples.

Diss. op. at 3. And he concludes that:

[W]hen the military judge denied Appellee’s request to have Mr. Fisher testify, the military judge effectively rendered impervious to cross-examination and attack the issue of whether Mr. Fisher contaminated the evidentiary sample.

Diss. op. at 7.

While contamination is certainly a serious risk to the integrity of the DNA results, Judge Ohlson’s opinion doesn’t explain why that risk could not have been adequately exposed by the defense cross-examination of Mr. Davenport. For instance, the defense could have elicited all the ways that contamination could have occurred (and even gone unnoticed despite the most diligent efforts of the laboratory employees). Further, the defense could have introduced records of any past mistakes by Mr. Fisher (assuming such records exist). And, of course, as the proponent of the DNA evidence, it was the Government’s burden to prove its reliability and convince the finder of fact of its value.

Yet Judge Ohlson notes an additional factor that raises confrontation concerns:

Mr. Fisher knew from the outset that an accused had been identified, and thus he knew that when he wrote his notes and conducted his tests, he likely was “creat[ing] evidence for use at trial.” Id. at 2245. This fact places Mr. Fisher’s statements “squarely within the heartland of Confrontation Clause jurisprudence.” United States v. Turner, 709 F.3d 1187, 1193 (7th Cir. 2013).

Diss. op. at 9. Judge Ohlson further concludes that “the Government elicited testimonial hearsay from Mr. Davenport,” diss. op. at 9, and that this violated the Confrontation Clause because Mr. Fisher was not actually unavailable at the time of Mr. Davenport’s testimony:

[T]he military judge found as fact that Mr. Fisher would be “unable to travel to testify at the court-martial until 5 May 11 at the earliest.” Because the record reflects that Mr. Davenport, Mr. Fisher’s substitute, was not called to testify in this case until the evening of May 5, the military judge’s own findings indicate that Mr. Fisher likely was available to testify.

Diss. op. at 10. Judge Ohlson ends his dissent by finding that the Government has failed to meet its burden to prove harmlessness, and stating that “Appellee’s conviction must be reversed.” Diss. op. at 11.

CAAF’s decision is a significant victory for the Government, but the court’s decision is somewhat anti-climactic. Judge Ryan navigates an unsettled landscape by following settled precedent, and her majority opinion embodies a rather simple conclusion: An expert can properly testify about his own opinions of another person’s work, and the defense can challenge the limited nature of that opinion based on the fact that the expert did not actually perform the work at issue.

Case Links:
AFCCA opinion
Blog post: A significant confrontation clause decision from the AFCCA
Blog post: CAAF grants USACIL additional time to file an amicus brief in Katso
Appellant’s (Government) brief
Appellee’s brief
Amicus brief (Defense Forensic Science Center / U.S. Army Criminal Investigation)
Blog post: Argument preview
Oral argument audio
• CAAF opinion
Blog post: Opinion analysis

15 Responses to “Opinion Analysis: That the expert witness did not perform the forensic testing himself goes to the weight not the admissibility of the test result in United States v. Katso, No. 14-5008/AF”

  1. Seamus Collins says:

    Thank you for summarizing this case.  My colleagues and I have been awaiting CAAF’s decision on Katso for some time.  Basicallly, CAAF’s ruling simply confirms its previous Sixth Amendment case law rulings. That means it is business as usual for expert witnesses testifying at courts-martial.

  2. anon says:

    Likely speaking to folks already aware, but Supreme Court issued a decision in Ohio v. Clark last week further delving into testimonial vs. nontestimonial when the questioner is not law enforcement.  Beyond the holding (which was not a surprise for me) and the tension among the justices regarding Crawford, the dicta concerning child witnesses was pretty much something all justices agreed with (i.e. young child statements will rarely implicate 6th amendment concerns).  Appears justices held short of saying ever, and did not define “young child” versus something-other-than-young-child; however, will likely change the tenor of decisions in the future.,d.aWw

  3. Dew_Process says:

    But, here’s the problem:

    The witness against Appellee was not Mr. Fisher or the Final Report, but Mr. Davenport, who appeared in person at trial. Appellee had the opportunity to cross-examine Mr. Davenport about his review of the case file and his expert opinion, and, generally, to “subject [the testimony] to adversarial testing.” Id. at 43.

    And as Judge Ohlson notes:

    [W]hen the military judge denied Appellee’s request to have Mr. Fisher testify, the military judge effectively rendered impervious to cross-examination and attack the issue of whether Mr. Fisher contaminated the evidentiary sample.

    Mr. Davenport was not present when the DNA was extracted nor tested. Sample “contamination” is indeed a problem as this recent article points OUT.
    As one source points out:

    Contamination is a major concern in any DNA analysis, especially in forensic science. Introduction of contaminant DNA from external sources can occur: 1) prior to collection by mixing with other sources of DNA, 2) during collection and storage, and/or 3) during laboratory analysis.

    Available HERE.  Another HERE, and HERE.
    It is even more troublesome when you consider what happened at trial:

    Defense attempted to ask Mr. Davenport if he would be aware of any contamination of the samples. J.A. 81. The government objected stating, “I think this has been asked and answered. . . . The witness, nevertheless answered the question, stating ‘Of course not.’” Id. The military judge sustained the objection. Id.  [Appellee/Accused’s CAAF Brief]

    Their Brief went on to argue:

    It is not, as the Government says, that the Defense chose not to attack the DNA testing, it was that the Defense was unable to attack the DNA testing for the simple fact that the proper witness was not at trial to be confronted by the appellee. [Appellee/Accused’s CAAF Brief].

    Strangely – imho – the Amicus Brief by USACIL in support of the Government, did not address the issue of contamination at all.  So, I think that in this context, Judge Ohlson hit the bulls-eye!

  4. Phil Cave says:

    @DP.  Agreed.
    The issue with USACIL and urinalysis labs should really be on the accession process– the arrival, inspection, etc.
    When a person says on a document, ” observed and checked the package on arrival, and it was not broken, etc., etc.,”  that’s testimonial, and that’s what’s relied on in Katso.  Same with the idea of how the initial worker prepared the samples and such.  That is the major flaw in the majority reasoning which Judge Ohlson captures well.  The majority has to ignore that else their argument doesn’t work.  It doesn’t matter how good the computer printouts look later if the accessioning wasn’t done correctly.  I would suggest it is at accessioning where the most likely contamination scenario can occur.
    We many of us remember the false positive of the AFIP blind negative sample–still unexplained.
    Oh, and who was that dude a USACIL faking test data, got caught, given retraining, got caught again, and then and only then did we start to get Brady letters.
    We still some of us remember the Mobley letter where it appears the SJA was trying to influence future expert testimony.  Mahoney, 38 M.J. 346 (C.A.A.F. 2003). 
    I remember my female client with male DNA in her sample–still unexplained how that happened, although the expert did admit the possibility of contamination by the accessioning male worker.

  5. Paco says:

    CAAF has green-lit USACIL, prosecutors, and SJA’s shielding testimony about integrity of samples, and the possibility of contamination with their opinion.  As DP pointed out, in this case the witness with true knowledge was shielded away and the additional witness was able to say: “It wasn’t me.”

  6. The Silver Fox says:

    I’ll just note that the flip side to the Confrontation Clause is the Compulsory Process Clause.  Defense counsel can request the witness if they deem it essential to their case. 

  7. Dew_Process says:

    @ SF – They tried, but the MJ ruled that he was “unavailable,” but Judge Ohlson blew that theory out of the water as well.

  8. The Silver Fox says:

    I don’t believe the defense requested the witness.  They only litigated the confrontation issue. 

  9. stewie says:

    I don’t think the issue of whether Fisher contaminated the samples was “impervious” to cross-examination.  For example, the subject of contamination could have been gotten into by DC with Davenport.  I’m sure he would have said contamination happens, it’s a problem, and he wasn’t there and does not know (what else can he say?).   If there were/are specific instances of poor practices by Fisher, or that lab, that could have been raised on cross of Davenport as well.
    Defense could have also called its own expert to talk about contamination, it’s frequency, and the fact that without knowing the specific testing done in this case, you cannot have full faith in the reliability of what Davenport relied on.
    I “strenuously” disagree that the defense was “unable” to attack the legitimacy of the sample or address the contamination issue.
    Having said all of that, I would agree that I would prefer Fisher to be there. Of the two, he would seem to be the more relevant and important witness since he did the initial testing that was the foundation for what followed. If I were government, I would have waited until he could be present…heck, I would have tried to get both experts to testify (although if Fisher testifies, the other doc is probably just bolstering/cumulative).
    I don’t agree with Phil that simply receiving it in a set condition is necessarily testimonial hearsay that requires appearance at court. Does that mean every person who touched the sample has to testify? I think it’s chain of custody evidence that goes to weight.  Certainly some folks who touch it are more key than others. I’d say the person who actually collected the sample should testify, and the person who did the testing should testify, but not necessarily the person who received it in the mail…the samples go through a lot of hands, and no court is ever going to say every hand that touches it (and could contaminate it) has to testify in person.

  10. Advocaat says:

    First, great summary and analysis, ZDS.  Second, I think CAAF’s rationale to permit Expert 2’s testimony was reasonable under the circumstances; such “lesser” witnesses favor the defense b/c of all the things they have to admit they do not know but they can still testify in their own right–scientific evidence by its nature is not limited to the views of the initial tester.  Third, given the DNA flying around (his in her rectum, hers on his penis and scrotum) combined with the victim’s ability to ID the accused right afterwards (according to the AFCCA opinion), does anyone really believe they got the wrong dude or that USACIL cross-contaminated all those swabs?  Fourth, that leaves a defense theory that “this is a case of a 21st birthday gone wild and an Airman who won’t admit she got what she wanted”–can’t blame the members for not buying that one based on the other evidence presented at trial according to the government’s brief, starting at page 24.  Ten years and a DD sounds right to me.

  11. stewie says:

    Advocaat, while I lean towards agreeing with CAAF, I’m cognizant of the counter, which is not that this case ended up being right, but what about the case where the only real evidence is the DNA, where identification boils down to that and without it the case is lost for the government?
    I think that scenario does give one a lot more pause given this ruling.

  12. k fischer says:

    The most troubling part of this opinion is this section regarding whether Fisher’s notes and lab results were testimonial:

    Nor is there any indication that Mr. Fisher’s notes or his other lab results that underlay the Final Report were signed, certified anything, bore indicia of formality, or that Mr. Fisher expected them to be used at trial.

    First, how is the Defense supposed to determine what Mr. Fisher “expected” at the time he made the notes?  Perhaps the Defense could have asked Mr. Davenport what Mr. Fisher expected when he drafted his report, but anybody who’s seen A Few Good Men would know that calls for speculation.  Thanks, Danny Kaffee.
    Second, is the majority actually positing with a straight face that a forensic DNA examiner does not expect his DNA results, notes, or lab results to be used in a rape case in today’s military, or that is a fact that the Defense is required to prove up?  I could have stomached an opinion affirming because the error was harmless BARD, but its like the majority is urinating on my leg while telling me that its raining, and although the rain is awfully warm, yellow, and smells of asparagus, I’m supposed to believe them. 

  13. stewie says:

    kf, I think it goes back to the idea that an expert can use whatever, including testimonial hearsay, when he comes up with his expert opinion, so long as that evidence doesn’t end up in front of the panel?
    I certainly disagree with the idea that Fisher didn’t expect his notes/lab results to be used at trial, he was on the witness list…but for something coming up, he was going to testify. Certainly in that situation, you would reasonably be expected to know your lab notes/results would/could come into play.
    I’m beginning to come around to the idea that this is a case with the right result, but the reasoning getting there is full of holes that could lead to bad results down the line.

  14. k fischer says:


     I’m beginning to come around to the idea that this is a case with the right result, but the reasoning getting there is full of holes that could lead to bad results down the line.

    Alas dear Friend; we agree again.

  15. Jay says:

    My personal opinion: I do not understand how Mr. Fisher did not reasonably foresee that his “notes or his other lab results” would be used at trial when he, as the Court states, is an employee of the United States Army Criminal Investigation Laboratory.