Massachusetts Supreme Court Demands a Witness from the Same DNA Laboratory -- But Not Because of the Confrontation Clause

The Sixth Amendment to the Constitution specifies that "in all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him." Does this mean that a prosecutor who wants to introduce evidence of a match between the defendant's DNA profile and a potentially incriminating sample (from a crime scene, for example) must produce a witness from the laboratory that ascertained the profile? After the factious opinions in Williams v. Illinois, 132 S.Ct. 2221 (2012), the law on whether and when a defendant has a Sixth Amendment right to confront the personnel at such a laboratory is a mess. 1/

In Williams, the U.S. Supreme Court upheld the state's reliance on the results of certain DNA testing even though the state failed to produce a single witness from the laboratory that did the crucial testing. But every theory put forth for skipping over a witness with some direct knowledge of the laboratory's work in the case was unacceptable to a majority of the Justices. This paradoxical result occurred because Justice Thomas -- using a theory that every other Justice repudiated -- reached the same result as did a plurality of four Justices, who relied on two different (and rather inventive) theories. Given these wildly disparate opinions, lower court decisions on who must testify about a laboratory report remain in disarray. 2/

Westlaw, the huge searchable legal database owned by the Thompson Reuters Corporation, reports that the Massachusetts Supreme Judicial Court recently held in Commonwealth v. Tassone, 3/ that the

trial court's admission of testimony from expert witness that deoxyribonucleic acid (DNA) profile generated from a known saliva sample of defendant matched a DNA profile obtained from a swab taken from eyeglasses that were left at scene of robbery violated defendant's Confrontation Clause rights. 4/

That's an amazing conclusion to draw from the opinion. What the Massachusetts court actually held is that the state's common law of evidence requires the prosecution to produce an expert from the laboratory that performed the DNA test to testify to a match to the defendant. The opinion could hardly be clearer. It states (with emphasis added):

The more challenging question, given the “significant confusion” that has been left in the wake of the Williams decision, 132 S.Ct. at 2277 (Kagan, J., dissenting), is whether the United States Supreme Court would conclude that evidence of this type, admitted under these circumstances, would violate the confrontation clause. Fortunately, we need not resolve that question because, regardless of the answer, we conclude that Roy's opinion was not admissible under our common law of evidence.

and

Because the defendant here had no meaningful opportunity for cross-examination, the admission of Roy's opinion violated the right to confrontation provided by our common law of evidence. ... The prosecution may not admit powerful evidence of a DNA match against a defendant and deny the defendant a meaningful opportunity to challenge the reliability of the facts or data on which the opinion rests by failing to call an expert witness affiliated with the laboratory that tested the sample connected to the crime scene.

and again

Regardless of whether the Supreme Court ultimately interprets the confrontation clause to permit the admission of such an opinion under circumstances that effectively deny the defendant any meaningful opportunity for cross-examination, its admission in our courts is barred by the right of confrontation in our common law of evidence. In other words, if the Commonwealth sends the crime scene DNA to Cellmark for analysis, and seeks to offer in evidence an opinion that the crime scene DNA matches the DNA of the defendant, it will need, at a minimum, to call an expert witness from Cellmark. (Note omitted)

In considering the impact of Tassone on other jurisdictions, one should keep in mind that the court relies partly on an unusual feature of Massachusetts law:

[A]lthough the Sixth Amendment's confrontation clause and Fed.R.Evid. 703 permit the prosecution to elicit on direct examination from an expert witness the underlying facts or data on which the expert's opinion is based for the limited purpose of explaining the basis for the expert's opinion, our common-law rules of evidence do not.

Federal Rule of Evidence 403 departed from the common law by allowing an expert to offer an opinion based on facts or data not admitted into evidence -- and that might be inadmissible -- as long as experts in the field reasonably rely on that type of information. The trial judge in Williams allowed a DNA analyst at the state police laboratory to refer to the testing at another laboratory (Cellmark) and to present her opinion of the probability that a randomly selected individual's DNA would have the incriminating profile that Cellmark reported to her.

The Illinois Supreme Court upheld the admission of this testimony despite the absence of any witness from Cellmark, on the theory that Illinois Rule of Evidence 703 allowed the police analyst to rely on data that, the analyst indicated, was likely to be accurate. Because the state never admitted Cellmark's report into evidence, the Illinois courts concluded that there was no requirement of confrontation.A plurality of four U.S. Supreme Court endorsed this loophole. This Rule 703 reasoning correctly supports the prosecution's dispensing with testimony from the laboratory that did the testing -- but only in rare cases (and probably not in Williams itself). 5/

In any event, Tassone neither applies nor departs from Williams. It avoids resolving the Confrontation Clause issue -- an entirely understandable approach considering (1) the usual judicial preference for not answering constitutional questions except when doing so is necessary, and (2) the post-Williams chaos.

Notes

1. David H. Kaye & Jennifer L. Mnookin, Confronting Science: Expert Evidence and the Confrontation Clause, 2012 Sup. Ct. Rev. 99 (2012).
2. David H. Kaye, David Bernstein & Jennifer  L. Mnookin, The New Wigmore on Evidence: Expert Evidence (Cum. Supp. 2016).
3. 468 Mass. 391, 11 N.E.3d 67 (2014).
4. That is the Westlaw summary of the holding in the case. The first West headnote on the case restates it:

   Admission of expert witness testimony that deoxyribonucleic acid (DNA) profile generated from a known saliva sample of defendant matched a DNA profile obtained from a swab taken from eyeglasses that were left at scene of robbery, where expert had no affiliation with laboratory that conducted DNA testing of eyeglasses swab, violated defendant's Confrontation Clause rights; defendant did not have a meaningful opportunity to cross-examine expert regarding the laboratory work, procedures, or protocols performed by testing laboratory or as to reliability of testing laboratory's data on which her opinion of a match with defendant's DNA profile rested. U.S.C.A. Const. Amend. 6.

5. See supra notes 1 & 2.