State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 75 The People &c., Respondent, v. Donna Jordan, Appellant.
Sarah B. Cohen, for appellant William H. Branigan, for respondent. The Legal Aid Society, amicus curiae.
GARCIA, J.:
Courts, including the U.S. Supreme Court (see Williams v Illinois, 567 US 50
[2012]), have struggled to identify the point at which forensic DNA science and the rights
provided by the Sixth Amendment’s Confrontation Clause intersect—that is, when the
mechanical processing of data becomes testimony. Recently this Court, in People v John,
-1- -2- No. 75
People v Austin, and People v Tsintzelis, identified as testimonial the editing stage at which
“the generated DNA profile” is created by the analyst exercising independent judgment (27
NY3d 294 [2016]; 30 NY3d 98 [2017]; 35 NY3d 925 [2020]). This case requires us to
apply this approach and, in so doing, decide whether the record here established that the
proper witness testified about the creation of the DNA profiles. Because the record was
insufficient, we now reverse.
A store in Queens was robbed, and an employee found a cellphone on the floor that
had been left behind when the robbers fled. Police officers swabbed the phone for DNA,
and analysts from the Office of the Chief Medical Examiner (OCME) created a DNA
profile from the swab and ran the profile through the Combined DNA Index System
(CODIS). After CODIS identified defendant as the source of the DNA based on a
preexisting DNA profile stored in the databank, she was arrested and charged with second
degree robbery and petit larceny. OCME analysts created a DNA profile from a post-arrest
buccal swab sample from defendant and confirmed the match.
At trial, the People called an OCME Level 4 criminalist to testify that defendant’s
DNA profile matched the profile developed from the crime scene swab. Three relevant
exhibits were entered into evidence: a forensic biology file containing all paperwork
developed by OCME, including a DNA profile generated from the DNA swabbed from the
cellphone; a similar forensic biology file that contained a DNA profile generated from the
confirmatory swab taken from defendant; and a demonstrative chart used to explain the
matches to the jury. Defense counsel objected, arguing that because the witness did not
perform any of the DNA testing himself, defendant’s right to confrontation would be
-2- -3- No. 75
violated by his testimony regarding the DNA profiles. The People responded that the
witness had performed an independent analysis of the profiles and so was the proper
witness. The Court allowed the testimony and admitted all three exhibits. The witness
testified about the process for developing DNA profiles and, as discussed in more detail
below, described his work on the profiles in this case. With the use of the comparison
chart, he testified that “the mixture found on the swab of the entire phone was
approximately 25.7 quadrillion [times] more probable if it originated from Donna Jordan
and from one unknown person rather than two unknown persons.” Defendant testified and
denied involvement in the robbery.
Following the prosecutor’s summation, defense counsel twice moved for a mistrial
on the grounds that the prosecutor’s statements amounted to misconduct. While
acknowledging that some of the prosecutor’s statements on summation were inappropriate,
the trial court held that the prosecutor’s comments did not rise to the level of prosecutorial
misconduct. The jury found defendant guilty on both counts.
The Appellate Division affirmed, holding that defendant’s right to confrontation
was not violated because the criminalist “performed his own analysis of the DNA profiles”
and that, “[t]o the extent that some of the prosecutor’s remarks were improper, those
remarks were not so flagrant or pervasive as to have deprived the defendant of a fair trial”
(201 AD3d 946, 948 [2d Dept 2022]). A Judge of this Court granted leave (38 NY3d 1134
[2022]), and we now reverse based on the violation of defendant’s rights under the
Confrontation Clause.
-3- -4- No. 75
It is well settled that “if an out-of-court statement is testimonial in nature, it may not
be introduced against the accused at trial unless the witness who made the statement is
unavailable and the accused has had a prior opportunity to confront that witness”
(Bullcoming v New Mexico, 564 US 647, 657 [2011]).1 In People v John, absent controlling
U.S. Supreme Court precedent addressing the interplay of the introduction of DNA forensic
evidence and the restraints posed by the Confrontation Clause, this Court sought to identify
the point at which the processes involved in DNA testing turn from ministerial to
testimonial.
We first made clear that the testifying criminalist need not have been involved in
each step of the procedures required to generate the DNA profiles (27 NY3d at 312-313).
This rule is consistent with the view of other courts that the preliminary steps involved in
the creation of DNA samples are “essentially ministerial tasks” (see US v Robinson, 2023
WL 6066691, at *4 [WD Wash Sept. 18, 2023, 2:22-cr-00212-TL, Lin, J.]; see also
Williams, 567 US at 100 [Breyer, J., concurring] [categorizing preliminary stages of DNA
testing as “highly automated” and “mostly automated”). These preliminary stages are
processes that simply prepare the DNA samples for testing, during which “the analyst’s
role is to facilitate the operation of a machine” (State v Lui, 179 Wash 2d 457, 487 [2014
en banc]; see also John, 27 NY3d at 300 [describing these procedures as “extraction (to
release the DNA from any cells), quantitation (to determine how much DNA was present),
1 The People’s contention on appeal that the DNA profile from the cellphone swab was not testimonial because no suspect had been identified is unpreserved. -4- -5- No. 75
(and) amplification (to make millions of copies of the specific locations . . . to be tested)”]).
Errors made at this stage “may often be detected from the profile itself,” which provides
“an additional safeguard” (Williams, 567 US at 8).
Instead of imposing a rule that required production of every person who comes into
contact with the evidence at these preliminary stages of testing, we held instead that the
relevant witness is one directly involved in the critical final stage of testing, when an
analyst must exercise judgment to cull the data and generate the DNA profile. It is at this
later stage of the testing, only after the “output[ of] an electropherogram, or a plot of the
peaks and valleys in the DNA[, that] any element of human decision-making enter[s] the
process; an expert must translate the peaks and valleys of the electropherogram into a DNA
profile” (Lui, 179 Wash 2d at 487-488; see John, 27 NY3d at 298 [“Experienced analysts
convert these numeric identifiers into a DNA profile using . . . the analyst’s independent
manual examination (of the data) which involves an editing process”]). 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
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State of New York OPINION Court of Appeals This opinion is uncorrected and subject to revision before publication in the New York Reports.
No. 75 The People &c., Respondent, v. Donna Jordan, Appellant.
Sarah B. Cohen, for appellant William H. Branigan, for respondent. The Legal Aid Society, amicus curiae.
GARCIA, J.:
Courts, including the U.S. Supreme Court (see Williams v Illinois, 567 US 50
[2012]), have struggled to identify the point at which forensic DNA science and the rights
provided by the Sixth Amendment’s Confrontation Clause intersect—that is, when the
mechanical processing of data becomes testimony. Recently this Court, in People v John,
-1- -2- No. 75
People v Austin, and People v Tsintzelis, identified as testimonial the editing stage at which
“the generated DNA profile” is created by the analyst exercising independent judgment (27
NY3d 294 [2016]; 30 NY3d 98 [2017]; 35 NY3d 925 [2020]). This case requires us to
apply this approach and, in so doing, decide whether the record here established that the
proper witness testified about the creation of the DNA profiles. Because the record was
insufficient, we now reverse.
A store in Queens was robbed, and an employee found a cellphone on the floor that
had been left behind when the robbers fled. Police officers swabbed the phone for DNA,
and analysts from the Office of the Chief Medical Examiner (OCME) created a DNA
profile from the swab and ran the profile through the Combined DNA Index System
(CODIS). After CODIS identified defendant as the source of the DNA based on a
preexisting DNA profile stored in the databank, she was arrested and charged with second
degree robbery and petit larceny. OCME analysts created a DNA profile from a post-arrest
buccal swab sample from defendant and confirmed the match.
At trial, the People called an OCME Level 4 criminalist to testify that defendant’s
DNA profile matched the profile developed from the crime scene swab. Three relevant
exhibits were entered into evidence: a forensic biology file containing all paperwork
developed by OCME, including a DNA profile generated from the DNA swabbed from the
cellphone; a similar forensic biology file that contained a DNA profile generated from the
confirmatory swab taken from defendant; and a demonstrative chart used to explain the
matches to the jury. Defense counsel objected, arguing that because the witness did not
perform any of the DNA testing himself, defendant’s right to confrontation would be
-2- -3- No. 75
violated by his testimony regarding the DNA profiles. The People responded that the
witness had performed an independent analysis of the profiles and so was the proper
witness. The Court allowed the testimony and admitted all three exhibits. The witness
testified about the process for developing DNA profiles and, as discussed in more detail
below, described his work on the profiles in this case. With the use of the comparison
chart, he testified that “the mixture found on the swab of the entire phone was
approximately 25.7 quadrillion [times] more probable if it originated from Donna Jordan
and from one unknown person rather than two unknown persons.” Defendant testified and
denied involvement in the robbery.
Following the prosecutor’s summation, defense counsel twice moved for a mistrial
on the grounds that the prosecutor’s statements amounted to misconduct. While
acknowledging that some of the prosecutor’s statements on summation were inappropriate,
the trial court held that the prosecutor’s comments did not rise to the level of prosecutorial
misconduct. The jury found defendant guilty on both counts.
The Appellate Division affirmed, holding that defendant’s right to confrontation
was not violated because the criminalist “performed his own analysis of the DNA profiles”
and that, “[t]o the extent that some of the prosecutor’s remarks were improper, those
remarks were not so flagrant or pervasive as to have deprived the defendant of a fair trial”
(201 AD3d 946, 948 [2d Dept 2022]). A Judge of this Court granted leave (38 NY3d 1134
[2022]), and we now reverse based on the violation of defendant’s rights under the
Confrontation Clause.
-3- -4- No. 75
It is well settled that “if an out-of-court statement is testimonial in nature, it may not
be introduced against the accused at trial unless the witness who made the statement is
unavailable and the accused has had a prior opportunity to confront that witness”
(Bullcoming v New Mexico, 564 US 647, 657 [2011]).1 In People v John, absent controlling
U.S. Supreme Court precedent addressing the interplay of the introduction of DNA forensic
evidence and the restraints posed by the Confrontation Clause, this Court sought to identify
the point at which the processes involved in DNA testing turn from ministerial to
testimonial.
We first made clear that the testifying criminalist need not have been involved in
each step of the procedures required to generate the DNA profiles (27 NY3d at 312-313).
This rule is consistent with the view of other courts that the preliminary steps involved in
the creation of DNA samples are “essentially ministerial tasks” (see US v Robinson, 2023
WL 6066691, at *4 [WD Wash Sept. 18, 2023, 2:22-cr-00212-TL, Lin, J.]; see also
Williams, 567 US at 100 [Breyer, J., concurring] [categorizing preliminary stages of DNA
testing as “highly automated” and “mostly automated”). These preliminary stages are
processes that simply prepare the DNA samples for testing, during which “the analyst’s
role is to facilitate the operation of a machine” (State v Lui, 179 Wash 2d 457, 487 [2014
en banc]; see also John, 27 NY3d at 300 [describing these procedures as “extraction (to
release the DNA from any cells), quantitation (to determine how much DNA was present),
1 The People’s contention on appeal that the DNA profile from the cellphone swab was not testimonial because no suspect had been identified is unpreserved. -4- -5- No. 75
(and) amplification (to make millions of copies of the specific locations . . . to be tested)”]).
Errors made at this stage “may often be detected from the profile itself,” which provides
“an additional safeguard” (Williams, 567 US at 8).
Instead of imposing a rule that required production of every person who comes into
contact with the evidence at these preliminary stages of testing, we held instead that the
relevant witness is one directly involved in the critical final stage of testing, when an
analyst must exercise judgment to cull the data and generate the DNA profile. It is at this
later stage of the testing, only after the “output[ of] an electropherogram, or a plot of the
peaks and valleys in the DNA[, that] any element of human decision-making enter[s] the
process; an expert must translate the peaks and valleys of the electropherogram into a DNA
profile” (Lui, 179 Wash 2d at 487-488; see John, 27 NY3d at 298 [“Experienced analysts
convert these numeric identifiers into a DNA profile using . . . the analyst’s independent
manual examination (of the data) which involves an editing process”]). 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” (John, 27 NY3d at 312, 314-315). 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 (see Robinson, 2023 WL 6066691, at *4; US v Peshlakai, 2023 WL 4235671, at
*11-12 [D NM June 28, 2023, 21-cr-01501-JCH, Herrera, J.] [reviewing the stages of DNA
-5- -6- No. 75
testing and holding that no Confrontation Clause violation occurred because the testifying
examiner “performed the final analysis, reviewed the final laboratory notes and data, and
drew the relevant conclusions”]; State v Lopez, 45 A3d 1, 13 [RI 2012] [testifying
examiner’s testimony sufficient where, “(a)fter the first three stages of the DNA testing
were completed (by others), he then reviewed the entire case file and confirmed that all
protocols were followed properly by examining the other analysts’ notes, their affirmations
that protocols were followed, as well as their conclusions” and “personally reviewed and
independently analyzed” the data]).
In sum, the 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 (see Tzintzelis, 35 NY3d at 926; Austin, 30 NY3d
at 105). The record here fails to establish that the testifying analyst had the requisite
involvement with either of the DNA profiles.2
First, the criminalist testified about procedures at the laboratory generally,
explaining that “the results and conclusions are entered into a computer by a reporting
analyst and then only the technical reviewer comes into their own conclusions if those
conclusions agree,” while a “reporting analyst is the first person to go through the
completed data and draw their own independent conclusions as to the results,” after which
2 Defense counsel’s detailed objection to the entirety of the criminalist’s testimony on confrontation grounds sufficiently preserved a challenge to the admission of all relevant DNA evidence. -6- -7- No. 75
they “draft [an] electronic report that summarizes their conclusions and findings, and they
assemble the paper case file that accompanies that report.” He later explained that “[t]here
is an analyst who will go through that data using a piece of software . . . [that] removes
noise along the graph that we know empirically not to be true data,” and any determination
that “a piece of information is likely noise . . . is documented within the data and case file
as well,” and “after that is complete, that visual determination and recordkeeping, that’s
when the interpreting analyst gets the final data for their interpretation, and the technical
reviewer then looks at the same data and makes their interpretation.” He did not explain
who performed these tasks for the relevant profiles.
The witness next testified that, for the profile from the cellphone swab, he was the
technical reviewer, that he did not prepare the reports and was not present when the reports
were made, and that he “review[ed] the data and reports” and conducted his “independent
interpretation of the testing data contained in” the paper file he received. He testified that
he was the reporting analyst for the post-arrest confirmatory swab and, when asked if he
“actually ran the raw data and remanded it to the final data,” he explained that a different
analyst performed that task and that, “[a]s the reporting analyst, I receive that data and went
through the data, . . . received the raw data and I go through it to make sure . . .
interpretations are being drawn, and then I draw my own interpretations based on that
data.” He responded affirmatively when asked if “someone else ran the raw data, and did
the work on it and provided it to you and you reviewed it.”
This record was insufficient. We cannot discern from these statements the witness’s
level of involvement in the generation of the DNA profiles at the crucial final stage of
-7- -8- No. 75
testing. Testimony that, for one profile, he received reports and reviewed them, and that,
for the other, he “received” the raw data and went through it, but that someone else “ran”
the raw data and provided it to him, did not 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. This witness’s imprecise and
conclusory statements failed to establish adequately that he “used his . . . independent
analysis on the raw data” and was not merely “functioning as a conduit for the conclusions
of others” (John, 27 NY3d at 315).
Without adequate testimony, the People could not establish whether the witness
participated in or supervised this final step, or performed an independent analysis of the
data through which he would have been able to replicate the determinations, identify any
errors committed in the earlier stages of testing, and draw his own conclusions. The People
should make a clear record of the stages of the DNA testing in which the testifying analyst
was involved, or what manner of independent analysis the testifying analyst performed,
ensuring that a witness’s testimony establishes his or her involvement at the necessary stage
to avoid a Confrontation Clause error. Courts 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.
Here no such record was made, and accordingly, admission of the criminalist’s testimony
and the underlying exhibits was error.
This error was not harmless. The constitutional harmless error standard applies
here, requiring a showing that the evidence was overwhelming and that there is no
-8- -9- No. 75
reasonable possibility that the error might have contributed to defendant’s conviction
(People v Clyde, 18 NY3d 145, 153-154 [2011]). The People produced only one witness
who identified defendant; that witness’s initial physical descriptions of the perpetrator did
not match defendant’s age or height; and defendant presented medical evidence that
suggested she was physically incapable of committing the robbery. Accordingly,
defendant is entitled to a new trial. As a result, we do not reach defendant’s remaining
arguments.
We note that our holding today is made absent clear guidance from the U.S.
Supreme Court (see e.g. State v Watson, 170 NH 720, 733 [2018] [“Because each of the
opinions in Williams embraces a different approach to determining whether the use of
forensic evidence violates the Confrontation Clause, and there is no narrow rule that would
have the support of a majority of the Supreme Court, we agree with other jurisdictions that
have concluded that its force, as precedent, is at best unclear”] [internal quotation marks
and citation omitted] [citing cases]; see also Garlick v Lee, 1 F4th 122, 133 [2d Cir. 2021]).
The Supreme Court may revisit the issues in Williams in a manner that affects today’s
holding. Technology may also develop in a way that affects confrontation rights and our
holding is limited to the process for forensic DNA analysis as currently conducted.
The order of the Appellate Division should be reversed and a new trial ordered.
Order reversed and a new trial ordered. Opinion by Judge Garcia. Chief Judge Wilson and Judges Rivera, Singas, Cannataro, Troutman and Halligan concur.
Decided November 20, 2023
-9-