The New York Court of Appeals upheld the conviction of Michael J. Brown on sexual assault charges over claims that the admission of of a DNA report processed by a subcontractor laboratory to the Office of the Chief Medical Examiner (OCME) through the testimony of a forensic biologist from OCME violated the right of confrontation as discussed in Melendez-Diaz v Massachusetts.

At trial there was evidence that the defendant followed a nine year old girl into the apartment house of a friend in Queens and sexually assaulted her in 1993. She was unable to identify him. In 2002 OCME submitted the rape kit to a private licensed laboratory, Bode. It matched the DNA of Brown who had been arrested on unrelated charges in Maryland. An analyst from OCME then compared the two samples. At trial she introduced several reports and graphs developed by Bode in its comparison of the DNA.

The Supreme Court in Melendez-Diaz ruled that affidavits prepared by a forensic chemist were testimonial under Crawford. Citing Crawford, Melendez-Diaz stated

“Various formulations of this core class of testimonial statements exist: ex parte in-court testimony or its functional equivalent–that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements … contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

The Court in Melendez-Diaz had little trouble finding that the chemist’s affidavits were testimonial and that their admission violated the Confrontation Clause.

The New York Court of Appeals attempts to differentiate the DNA reports from the chemist’s reports in Melendez-Diaz by saying that the chemist in Melendez-Diaz drew the conclusion that the item tested was cocaine while the reports in Brown did not draw any conclusions. It was the analyst from OCME who testified who drew the conclusions that Brown’s DNA matched that taken from the victim. But the Supreme Court in Melendez-Diaz rejected the respondent’s claim that the chemist’s personal appearance was not necessary because it was the “result of neutral, scientific testing.” The New York Court is making the same claim and it should not hold up under the Supreme Court’s decision in Melendez-Diaz.

The affidavits in Melendez-Diaz are under oath whereas the reports in Brown are not under oath. Some might argue that this makes the Brown reports less testimonial. But it also makes them less reliable and more in need of cross examination. Furthermore they were made for the purpose of litigation and in expectation that they would be introduced into evidence. As such their testimonial nature should not be questioned.