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
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.
• 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