Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v. Roach 219 NJ 58 (2014

Supervising chemist can testify in rape case if they independently verified correctness of DNA results State v.  Roach 219 NJ 58 (2014)

State v. Reginald Roach (A-129-11) (068874)

[NOTE:  This is a companion case to State v. Julie L. Michaels

Decided August 6, 2014

LaVECCHIA, J., writing for a majority of the Court.

In this appeal, the Court considers whether defendant’s confrontation rights were violated by the testimony of an analyst who matched defendant’s DNA profile to DNA evidence left by the perpetrator at the scene of the offense, but who was not the analyst who performed the testing procedures that provided the basis for the DNA profile developed from the perpetrator’s evidence.

The police identified E.A. as a suspect and sent his buccal swap to the State Lab. On November 16, 2005, Linnea Schiffner, a forensic scientist with the DNA Department, received H.H.’s sexual assault kit and the buccal swabs taken from H.H. and E.A. Schiffner was able to create a full DNA profile for the perpetrator from samples taken from H.H., as well as profiles for H.H. and E.A. from their respective buccal swabs. She concluded that E.A.’s DNA profile did not match that of the male contributor to the samples taken from H.H. Schiffner prepared a report, dated December 7, 2005, listing the samples that she had tested, setting forth an allele table listing the DNA profiles, and stating her conclusion that E.A.’s DNA profile did not match that of the perpetrator.

Subsequently, defendant was identified as a suspect, and, when police officers stopped him, they found a pair of black gloves and a small sharpened stick. Defendant’s buccal swab was sent to the State Lab for analysis. Because Schiffner had relocated to Wisconsin for reasons the trial court found unrelated to job performance, the H.H. case file and defendant’s buccal swab were assigned to Jennifer Banaag, another forensic scientist in the DNA Department. Banaag analyzed defendant’s buccal swab and generated a full DNA profile for defendant. She then compared defendant’s DNA profile with the profiles generated from the specimens taken from H.H.’s inner thighs, and concluded that defendant was the source of the DNA on H.H.’s samples. As part of this process, Banaag reviewed Schiffner’s report and all the underlying data, as well as all files relating to the case. Banaag checked “everything” from the initials and dates on each page to the “data calls” Schiffner had made in generating the profiles. Banaag issued a signed report, dated February 24, 2006, stating her conclusion that defendant was the source of the DNA found in the samples taken from H.H., and containing an allele table with the DNA profile she had generated for defendant and the DNA profiles reported by Schiffner. Defendant was charged with aggravated sexual assault, burglary, and other offenses related to the attack on H.H.

The key issue at trial was identity, which turned on the DNA analysis. Williams and Banaag testified for the State, but Schiffner did not testify. Defendant objected to any testimony by Banaag about Schiffner’s analysis, arguing that it was hearsay and violated his right to confront the analyst who had performed the tests being used against him. The court overruled defendant’s objection. Banaag testified that she had made an “independent data analysis for the buccal swab that [she] received, went back and reviewed Miss Schiffner’s case and made [her] own independent conclusions.” Banaag went on to state her conclusion that “within a reasonable scientific certainty . . . Reginald Roach is identified as the source of the DNA profile” obtained from the samples taken from H.H.

The jury found defendant guilty of aggravated sexual assault, burglary, and other charges, and the court sentenced defendant to an aggregate forty-year prison term. The Appellate Division affirmed, and this Court granted defendant’s petition for certification. State v. Roach, 211 N.J. 607 (2012).

HELD: Defendant’s confrontation rights were not violated by the testimony of the analyst who matched his DNA profile to the profile left at the scene by the perpetrator. Defendant had the opportunity to confront the analyst who personally reviewed and verified the correctness of the two DNA profiles that resulted in a highly significant statistical match inculpating him as the perpetrator. In the context of testing for the purpose of establishing DNA profiles for use in an expert’s comparison of DNA samples, a defendant’s federal and state confrontation rights are satisfied so long as the testifying witness is qualified to perform, and did in fact perform, an independent review of testing data and processes, rather than merely read from or vouch for another analyst’s report or conclusions.

1. The Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides an accused the right “to be confronted with the witnesses against him.” The New Jersey Constitution provides a cognate guarantee to an accused in a criminal trial. See N.J. Const. art. I, ¶ 10. As modern United States Supreme Court confrontation case law has explicated, the right to confront witnesses guaranteed to an accused applies to all out-of-court statements that are “testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed.2d 177, 203 (2004). If testimonial, the statement is inadmissible unless the witness is unavailable to testify and the defendant had had a prior opportunity for cross-examination. New Jersey’s state confrontation jurisprudence has followed the federal approach.

2. As explained in the Court’s companion case, State v. Michaels, __ N.J. __ (2014), also issued today, the Supreme Court has considered Crawford’s application in three cases involving forensic reports: Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed.2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed.2d 610 (2011); and Williams v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L. Ed.2d 89 (2011). In Michaels, supra, this Court examined those recent decisions and chronicled the development of confrontation law through Williams, the most recent Supreme Court case, in which members of the Court authored three opinions that espoused divergent analytic approaches. __ N.J. __ (slip op. at 17-37). Because a majority of the Supreme Court failed to accept the analytic approach of the plurality opinion, this Court concluded that Williams’s force as precedent was unclear. Id. at __ (slip op. at 43). Accordingly, in this matter, the Court determines to use the pre-Williams Confrontation Clause holdings on forensic evidence, as it did in Michaels. (

3. In this matter, defendant modeled his challenge after Bullcoming, arguing that the opportunity to cross-examine Banaag is an insufficient substitute for his right to confront the analyst who actually performed the testing on the DNA evidence left by the perpetrator on the body of the victim. The Court notes at the outset that Schiffner’s report was not introduced at trial, and thus finds that this matter differs from Bullcoming and Melendez-Diaz, where the disputed reports were placed in evidence. That said, the Court considers defendant’s confrontation challenge with the understanding that Schiffner’s report was integral to Banaag’s testimony, and that components of it were incorporated in Banaag’s expert report. The Court notes, as it did in Michaels, supra, that neither Bullcoming’s holding nor Melendez-Diaz’s requires that every analyst involved in a testing process must testify in order to satisfy confrontation rights. __ N.J. at __ (slip op. at 44). Nor do they lead to the conclusion that in every case, no matter the type of testing involved or the type of review conducted by the person who does testify, the primary analyst involved in the original testing must testify to avoid a Confrontation Clause violation. Ibid. Against that backdrop, the Court finds that defendant’s reliance on Bullcoming is unwarranted. Unlike Banaag, the testifying witness in Bullcoming was a “surrogate” who had no connection to the report about which he testified other than being familiar with the laboratory’s testing procedures.

4. In reaching its conclusion, the Court draws from Justice Sotomayor’s separate opinion in Bullcoming, which noted that the Supreme Court’s holding did not address and, therefore, did not reject, testimony by a supervisor or an otherwise independent reviewer of data. Following that guidance, this Court held in Michaels, supra, that a supervisor could testify about the results of the testing in a report that he authored, signed, and certified, based upon his knowledge of the laboratory’s testing procedures and protocols generally and his training and knowledge of the particular testing involved. __ N.J. __ (slip op. at 4, 67). The Court finds that its reasoning applies with comparable force to the analogous circumstance of a non-supervisory co-worker or other independent reviewer, who is trained in the testing and is knowledgeable about the laboratory’s processes and protocols, and who testifies based on his or her independent review of raw data and the conclusions that he or she has drawn from that data. The Court cautions, however, the testimony must be provided by a truly independent and qualified reviewer of the underlying data and report, and the witness may not merely parrot the findings of another. The independent reviewer – just like a supervisor who signs and certifies a report – must draw conclusions based on his or her own findings, and his or her verification of the data and results must be explained on the record.

5. The Court considers Banaag’s testimony against that backdrop and determines that Banaag sufficiently explained how she used her scientific expertise and knowledge to independently review and analyze the graphic raw data that was the computer-generated product of Schiffner’s testing. Although the Court finds that Banaag’s independent interpretation of the machine-generated data converted raw data into unmistakably testimonial material subject to the Confrontation Clause, it holds that confrontation requirements were satisfied by defendant’s ability to cross-examine Banaag.

6. In response to the dissenting opinion, the Court notes, as it did in Michaels, that defendant’s confrontation rights were not sacrificed because he had the opportunity to confront Banaag on her conclusions and on the facts that she independently reviewed, verified, and relied on in reaching those conclusions. The Court emphasizes that this is not a case where the testifying analyst merely read from another analyst’s report. Rather, Banaag carefully reviewed and analyzed all the underlying machine-generated data and formed her own conclusions about the results to which she testified. Accordingly, the Court holds that defendant’s confrontation rights were satisfied by his opportunity to confront Banaag on the DNA evidence used at his trial.

The judgment of the Appellate Division is AFFIRMED. CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a separate, dissenting opinion.

JUSTICE ALBIN, DISSENTING, expresses the view that Schiffner’s test results were testimonial statements that incriminated defendant and thus the Confrontation Clause does not permit Banaag, an analyst who did not perform, participate in, or observe underlying laboratory tests, to give surrogate testimony for Schiffner, the absent analyst who did the testing and recorded the results.