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TO COMPLY WITH THE CONFRONTATION CLAUSE, THE ANALYST WHO TESTIFIES ABOUT A DNA PROFILE MUST HAVE PARTICIPATED IN THE FINAL STAGE OF THE DNA ANALYSIS OR MUST HAVE CONDUCTED AN INDEPENDENT ANALYSIS USING ONLY THE RAW DATA; THE WITNESS HERE DID NOT MEET THAT CRITERIA (CT APP).

The Court of Appeals, in a full-fledged opinion by Judge Garcia, reversing the Appellate Division, determined the People did not demonstrate the witness through whom the DNA evidence was admitted had the necessary involvement in the DNA analysis:

We have held that “a single analyst” may testify so long as it is “an analyst who witnessed, performed or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others” … . Accordingly, testimony from an analyst is sufficient where the witness has engaged in ” ‘the final-level DNA analysis, reviewed the results of the preliminary evidence processing conducted by colleagues, produced the relevant DNA profiles, and expressed her expert opinion’ ” as to the DNA match … . …

… [T]he 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 …. The record here fails to establish that the testifying analyst had the requisite involvement with either of the DNA profiles. People v Jordan, 2023 NY Slip Op 05957, CtApp 11-21-23

Practice Point: Here the People did not demonstrate the witness testifying about defendant’s DNA profile participated in the final stage of the DNA analysis or conducted an independent analysis using only the raw data. Therefore the analysist’s testimony violated the Confrontation Clause.

 

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