Following on the heels of the United States Supreme Court’s decision in Bullcoming v. New Mexico which this blog addressed in June, and adopting the reasoning of that case, the Maryland Court of Appeals has upheld a criminal defendant’s right to confront the testimonial witnesses against him, in a case that could have long-reaching ramifications for cases relying on DNA evidence.
Our Maryland criminal defense attorneys are experienced with the use of DNA evidence in criminal trials, and can protect your rights if you are charged with a crime where the State is relying on DNA evidence. DNA evidence is an extremely complex issue, and necessitates the assistance of an attorney who is comfortable handling the evidentiary issues involved.
In Derr v. State, the Maryland Court of Appeals addressed whether the reports created by DNA analysts, without those analysts’ in-court testimony supporting those reports, was admissible into evidence. At trial, Derr was found guilty of a December 1984 rape. The State submitted into evidence three reports showing DNA analyses (dated 1985, 2002, and 2004), supported only by the testimony of a supervisory DNA analyst who had not been personally involved in the performing the forensic tests or creating the reports.
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him[.]” Similar language is found in Article 21 of the Maryland Declaration of Rights. As the Court of Appeals noted in Derr, the purpose of the protected right is two-fold: to provide the defendant with the opportunity for cross-examination, and to also provide the judge and jury the opportunity to observe the witness’ demeanor.
This right of a defendant to confront the witnesses the State uses against him or her is broader than simply the right to cross-examine the human witnesses that take the stand. As the Court of Appeals found in this case, the right also extends to situations where the State is using an out-of-court statement, such as a DNA analysis created in a lab. Such a statement, if used as the functional equivalent of in-court testimony, is called a “testimonial statement.” The Court held that “any statement made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” is testimonial in nature. These DNA analysis reports were ruled to be testimonial statements. Under the Sixth Amendment, the defendant has the right to cross-examine the person who made the “testimonial” analysis. The Court ruled that the forensic evidence against Derr was inadmissible because the analysts who performed the tests of the evidence presented against him did not testify, and reversed his conviction.
The State’s necessity in criminal cases involving DNA evidence to have the analyst who performed the DNA testing present can create difficulties for the State, especially in light of the persistent problems that crime labs in Maryland have experienced. These problems include an extensive backlog of DNA samples, tainted analyses of DNA by the Baltimore Police Department, and a lack of funding for the crime labs in Maryland. As in the Derr case, sometimes these analysts performed their review of the evidence decades before the case comes to trial. Under those circumstances, the original analyst who performed the DNA testing and created the report that the State relies on may be unavailable, and as a result, those original reports might not be admissible. If you are charged with a crime and expect the State to use DNA evidence against you, an Annapolis attorney who is experienced in handling the admissibility of forensic evidence at trial is necessary to protect your rights.