Albany High Court Unanimously Finds Confrontation Clause Violation & Reverses Conviction
Following a robbery at a Queens store, an employee found a cellphone on the floor that had been left behind when the perpetrators fled. The phone was swabbed and tested for DNA, and Ms. Jordan was allegedly a source. At trial, the prosecution called a criminalist to testify that Ms. Jordan’s DNA profile matched the crime scene swab. Defense counsel objected, arguing, inter alia, that because the criminalist had not performed any of the DNA testing himself, Ms. Jordan’s right to confrontation would be violated. The court permitted the testimony and related exhibits.
In a 7-0 decision, the Court of Appeals reversed. The Court ruled that the record failed to establish that the testifying criminalist had the requisite involvement with the DNA profiles. The criminalist’s level of involvement in the generation of the DNA profiles, the crucial final stage of testing, was unclear. His testimony that he reviewed reports for one profile, and both “received” the raw data for the other profile but that someone else “ran” the raw data and provided it to him, failed to demonstrate that he was the proper witness. “The witness did not recount any involvement in the stages of testing that require the exercise of judgment and the opportunity to identify error” and “[c]ourts 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 confrontation clause error was not harmless, since only one witness identified Ms. Jordan, that witness’s physical descriptions did not match Ms. Jordan’s age or height, and Ms. Jordan presented medical evidence suggesting she was physically incapable of committing the robbery. The conviction was reversed and a new trial ordered.
Sarah B. Cohen represented Ms. Jordan