In a published opinion in United States v. Katso, __ M.J. __, No. 38005 (A.F.Ct.Crim.App. Apr. 11, 2014) (link to slip op.), the AFCCA reverses convictions of aggravated sexual assault, burglary, and unlawful entry, for which the appellant was sentenced to confinement for ten years, total forfeitures, and a dishonorable discharge. A three-judge panel of the court lead by Chief Judge Roan finds that a DNA expert who testified for the Prosecution improperly repeated testimonial hearsay, depriving the appellant of his constitutional right to confrontation, and the panel split 2-1 to find that error prejudicial.
The fact of the case are that:
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 the appellant as her attacker.
Slip op. at 2. DNA samples were collected from both SrA CA and the appellant. 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 appellant’s DNA profile and semen found in the samples taken from CA. In accordance with USACIL procedure, Mr. Fisher’s report was reviewed by a second examiner, named Mr. Davenport.
The Prosecution intended to call Mr. Fisher to testify at trial, but he was unavailable due to a family emergency. So the Prosecution offered the expert testimony of Mr. Davenport instead. Mr. Davenport testified over the objection of the Defense, with the Defense “arguing [that] the appellant’s right to confront Mr. Fisher, the witness who had performed key steps in the DNA analysis that was to be used against him at trial, would be violated.” Slip op. at 2. During a pretrial hearing, Mr. Davenport explained that:
during his technical review of Mr. Fisher’s report, he examined the case file and reviewed the documents submitted by AFOSI to ensure the tag numbers were properly reflected on the report confirming that evidence in fact came into the laboratory and was properly documented. He also examined the report to ensure all steps of the testing process were conducted and recorded, the positive and negative controls were tested, and the lot numbers were written down. As part of the technical review, Mr. Davenport testified that although he did not reconstruct the DNA profiles previously developed by Mr. Fisher (as described in steps 1 through 7 above), he did examine the raw data that was created during the generation of the DNA profile by running the information through a computer program to produce a statistical frequency determination. He personally interpreted the data to determine whether the DNA profiles matched and then compared his findings with those of the original analyst to verify the results. This same process was repeated for all known samples and submitted items of evidence. Following this, Mr. Davenport concluded the semen found on the swabs taken from the victim in this case contained the appellant’s DNA profile.
Slip op. at 5. The military judge denied the Defense motion, concluding that “Mr. Davenport could testify concerning his independent findings without violating the Confrontation Clause. This included providing his independent opinion about the reliability of the testing procedures used, the findings and results, and the frequency statistics related to those findings and results.” Slip op. at 5. Mr. Davenport then testified along these lines at trial. Mr. Fisher’s report was not admitted into evidence.
The three-judge panel of the CCA unanimously concludes that Mr. Davenport improperly repeated testimonial hearsay from Mr. Fisher during his trial testimony, and that this violated the appellant’s right to confrontation. Slip op. at 6; slip op. at 18 (Orr, S.J. concurring in part and dissenting in part).