by Anthony W. Accurso

The Court of Appeals of New York reversed a case where the People failed to present evidence that the criminalist, who testified as to DNA analysis, had sufficient involvement in the final crucial step of the DNA testing process in which the DNA profile is generated to testify about the analysis.

Following a store robbery in Queens, police collected a cellphone that they believed belonged to the robber. They swabbed it for DNA and compared the resulting profile to the CODIS database. It matched the entry for Donna Jordan, who was arrested and charged with second degree robbery and petit larceny. The Office of the Chief Medical Examiner (“OCME”) team compared the profile created from the cellphone swab with a post-arrest buccal swab from Jordan and declared them a match.

At trial, the People presented the testimony of an OCME Level 4 criminalist who presented three relevant exhibits: “a forensic biology file containing all paperwork developed by OCME, including a DNA profile generated from the DNA swab from a cellphone; a similar forensic biology file that contained a DNA profile generated from the confirmatory swab taken from the defendant; and a demonstrative chart used to explain the matches to the jury.”

Defense counsel objected to this testimony “because the witness did not perform any of testimony himself,” thus depriving the defendant of her right to confront the analyst who actually created the DNA profiles from the two samples.

The trial court allowed the testimony, and Jordan was convicted by the jury on both counts. She appealed, arguing that the DNA testimony was allowed in error. The appellate division affirmed, ruling that the defendant’s Sixth Amendment confrontation right was not violated because the testifying criminalist performed his own analysis of the DNA profiles. Jordan timely appealed.

The Court of Appeals began its analysis by explaining that courts nationwide, including the U.S. Supreme Court, have struggled with identifying the precise point in the DNA testing process “when the mechanical processing of data becomes testimony.” This is a crucial distinction because the Sixth Amendment confrontation right applies to the latter. That is, “if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” Bullcoming v. New Mexico, 564 U.S. 647 (2011).

The Court advised that it has identified the point during the DNA testing process at which the processing of data becomes testimony, viz., “the editing stage at which ‘the generated DNA profile’ is created by the analyst exercising independent judgment.” People v. John, 52 N.E.3d 1114 (N.Y. 2016); People v. Austin, 86 N.E.3d 542 (N.Y. 2017); People v. Tsintzelis, 146 N.E.3d 1160 (N.Y. 2020). The Court of Appeals has instructed that some steps in the testing process are “mostly automated” and can be performed by anyone trained to prepare the sample and operate a machine to extract, quantitate, and amplify the genetic material present in a sample. Technicians involved at this stage are deemed unnecessary to produce at trial because they engaged in “essentially ministerial tasks.” John.

The Court summed up the framework it has adopted as follows: “In sum, the testifying analyst must have either participated in or directly supervised this ‘final’ step that generates the DNA profile, or must conduct an ‘independent analysis’ of the data used to do so in a manner that enables replication of the determinations made at that stage in order to verify the profile [citations omitted].”

The Court explained that the present case requires it to apply the foregoing framework to determine whether the record establishes that the appropriate criminalist testified regarding the creation of the DNA profiles introduced at Jordan’s trial.

The criminalist who testified at trial “testified about procedure at the [OCME] lab generally,” regarding how samples are obtained, analyzed, and used to create a profile, according to the Court. However, it stated that the testifying criminalist “did not explain who performed these tasks for the relevant profiles.”

“Without adequate testimony,” the Court explained, “the People could not establish whether the witness participated in or supervised this final step, or performed an independent analysis of the data through which he would have been able to replicate the determinations, identify any errors committed in the earlier stages of testing, and draw his own conclusions.” The Court stated that the criminalist’s “imprecise and conclusory statements” do not adequately establish that he “used his … independent analysis on the raw data’ and was not merely ‘functioning’ as a conduit for the conclusions of others.” John. Thus, the Court held that the admission of the criminalist’s testimony and exhibits was error.

The Court provided the following practical forward guidance: “The People should make a clear record of the stages of the DNA testing in which the testifying analyst was involved, or what manner of independent analysis the testifying analyst performed, ensuring that a witness’s testimony establishes his or her involvement at the necessary stage to avoid a Confrontation Clause error. Courts must be able to confirm that the testifying analyst participated in the critical portion of the testing process or reviewed the data in a meaningful way that enabled independent verification of the accuracy of the DNA profile.”

The Court also concluded that the trial court’s error in allowing the criminalist to testify was not harmless. The only eyewitness who identified Jordan as the robber initially provided a description of a suspect who did not match Jordan’s age or height, and Jordan “presented medical evidence that suggested she was physically incapable of committing the robbery.” For these reasons, without the DNA testimony, the outcome of the case would likely have been different, the Court concluded. See People v. Clyde, 961 N.E.2d 634 (N.Y. 2011).

Finally, the Court advised that its holding in the case “is made absent clear guidance from the U.S. Supreme Court … [so] we agree with other jurisdictions that have concluded that its force, as precedent, is at best unclear.” See Williams v. Illinois, 567 U.S. 50 (2012); see also Garlick v. Lee, 1 F.4th 122 (2d Cir. 2021).

Accordingly, the Court reversed Jordan’s conviction and remanded the case for a new trial. See: People v. Jordan, 223 N.E.3d 773 (N.Y. 2023).  

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