[Copyrighted Material Omitted]
Sarah Kalish and Josie Garton, Assistant Public Defenders, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Tamara E. de Lucia, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
The major question in this case is whether the superior court violated the defendant's right of confrontation under the Sixth Amendment to the United States Constitution when the superior court allowed a laboratory technician employed by the State Crime Lab to testify about the results of genetic testing performed by the Crime Lab, when a portion of that testing was conducted by another Crime Lab technician who did not testify.
In Meléndez-Díaz v. Massachusetts, __ U.S. __, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), a cocaine trafficking case, the United States Supreme Court held that the Sixth Amendment's confrontation clause barred the government from relying on hearsay evidence-in the form of " certificates of analysis" prepared by three laboratory technicians-to prove that certain substances in the defendant's possession were, in fact, cocaine. 129 S.Ct. at 2532.
The Supreme Court declared that the lab technicians' certificates were " testimonial hearsay" -that is, the certificates were the type of hearsay barred by the confrontation clause-because the certificates were " functionally identical to live, in-court testimony" : each certificate was " a solemn declaration or affirmation made for the purpose of establishing or proving some fact" in a court proceeding. Ibid. 
In the present case, the defendant John Lee Vann was charged with kidnapping and sexually assaulting a woman. At Vann's trial, the major disputed issue was the identity of the perpetrator. Vann claimed that he had never met the victim, that he was elsewhere on the night in question, and that if the victim was kidnapped and sexually assaulted, he was not the one who did it.
As part of the State's effort to establish that Vann was the culprit, the State presented the testimony of Cheryl Duda, a DNA analyst employed at the Alaska State Crime Detection Laboratory.
Duda testified that the Crime Lab received genetic samples from both Vann and the victim, and that these known samples were then compared to five samples of genetic material that were obtained from items associated with the crime. Duda tested three of these samples herself, but the other two samples were tested by Jessica Cohen, another DNA analyst working at the Crime Lab. Over Vann's objection, the superior court allowed Duda to describe and interpret the test results from all five samples.
The question is whether the superior court's ruling is incompatible with the Supreme Court's decision in Meléndez-Díaz. As we explain in more detail in this opinion, we conclude that Meléndez-Díaz does not bar the admission of the testimony that Vann challenges in this case. Here, in a nutshell, is our analysis:
Although Cheryl Duda's associate, Jessica Cohen, processed two of the samples (by running them through a machine that analyzes the genetic profile contained in DNA), Duda testified that (1) she herself interpreted the data read-outs produced by the machine from Cohen's two samples, and (2) the conclusions that Duda reached about the significance of the test results were her own. Thus, Duda was the " real" witness with respect to all five of the samples-much as a doctor would be the " real" witness regarding a diagnosis of illness, or a pathologist would be the " real" witness regarding a conclusion as to cause of death, even though the doctor or pathologist relied in substantial measure
on the results of testing conducted by laboratory technicians. Accordingly, Vann's right of confrontation under the Sixth Amendment was satisfied when he was afforded the opportunity to cross-examine Duda.
A more detailed description of the challenged testimony
As we explained above, two DNA analysts working at the Alaska State Crime Detection Laboratory-Cheryl Duda and Jessica Cohen-participated in the testing of the samples in Vann's case.
Duda personally tested and obtained DNA from three samples: two swabs that were taken from bottles connected to the crime, and a swab of blood taken from the front passenger window of the vehicle involved.
As described by Duda, the testing of genetic samples consists of four steps. First, strands of DNA are chemically extracted from the sample. This is followed by the second step: a measurement of how much DNA has been obtained from the extraction. Third, the extracted DNA is " amplified" -chemically copied-so that there is a sufficient quantity to perform an analysis. Finally, the strands of DNA are analyzed at 15 or 16 different locations to see what alleles ( i.e., genetic variants) are found at those locations.
This final stage of the testing-the actual analysis of the genetic contents of the amplified DNA-is performed by a machine. At the time of Vann's trial, the State Crime Lab was using an " ABI-310 Genetic Analyzer" for this purpose. The machine chemically " reads" the genetic profile of the DNA, and then the machine produces a graph that visually depicts that genetic profile. This graph can be printed out for later review and comparison with test results from other samples.
After Duda performed this described testing on her three samples (the swabs from the two bottles, plus the blood swab), she compared the genetic profiles of these three samples to the genetic profiles generated from the known DNA samples taken from the victim and from Vann. The first bottle sample (referred to as sample " 22-JFA" in the testimony) was a complete match of Vann's genetic profile. According to Duda, the chance that the genetic material found on the bottle came from someone other than Vann was less than one in 1 quintillion ( i.e., one in 1 billion billion, or 10 18).
The testing of the blood swab yielded identical results: the genetic profile of the DNA obtained from this blood was a complete match of Vann's genetic profile.
The sample obtained from the second bottle (referred to as sample " 25-JFA" in the testimony) yielded DNA from more than one source. Although Duda could not say for sure, it appeared that this sample contained DNA from both Vann and the victim: every DNA location that was testable in this sample yielded results that were consistent with either Vann's genetic profile or the victim's genetic profile.
In addition to testing these three samples, Duda also reviewed the report of the testing conducted by her associate, Cohen, on two other samples. One of these samples came from the victim's body, while the other came from the victim's panty liner.
However, Duda did not simply " review" Cohen's report in the sense of reading it and noting its conclusions. Rather, Duda independently re-analyzed the significance of the test data that Cohen obtained from running the two samples through the ABI-310 Genetic Analyzer. Here is Duda's testimony on this point:
Duda: [Jessica Cohen was] the person who went into the laboratory and actually put scalpel to swab and cut it [to prepare it for testing], but I did go through all of her electronic data. In other words, Jessica ... ran these [samples] through the genetic analyzer, and then the genetic analyzer produced [the test] data. [My participation] began at the process of looking at the data she printed out [from the genetic analyzer].
I made sure that, according to her bench notes, she followed the protocols that are standard for our laboratory. [In addition,] I [confirmed] that I came to the same [genetic] typing results that she did. And I also looked at those [genetic] typing results to form conclusions [about whether the DNA in those samples matched the
genetic profiles of the people involved in this case]. [I] made sure that [Jessica and I] came to the same conclusions [from] these tests.
Prosecutor: Once [the samples were] analyzed, did you review the [test data] that was obtained?
Duda: Yes, I did.
Prosecutor: Okay. And that was ... to see if you drew the same conclusions?
Duda: That's right. To make sure that, from the point where the [ABI-310 Genetic Analyzer] spits out the data for us, ... that the data [presented in Cohen's] report is consistent with [the machine's reading], and that the conclusions [she] reached [from that data] are correct.
Duda then testified that she " concurred with all the information in [Cohen's] report."
In particular, with regard to the sample obtained from the victim's panty liner, Duda testified that this sample did contain at least some male DNA, but the DNA obtained from this sample was insufficient for the genetic analyzer to produce data from many of the DNA strand locations that are used as test sites. The machine was able to identify the alleles at a few DNA locations, and all of these identified alleles were consistent with either Vann's genetic profile or the victim's genetic profile, but Duda testified that she " [couldn't] come to any more conclusions than that, because there just isn't enough information there." She then added, " I'm not calling this a match."
With regard to the sample obtained from the victim's body, the genetic analyzer was able to fully analyze the DNA from this sample. The testing yielded two genetic profiles-an " epithelial" profile obtained from outer body cells and a separate profile obtained from sperm cells.
Not surprisingly, the epithelial profile matched the victim's genetic profile. The sperm profile, Duda testified, was a complete match of Vann's genetic profile. Again, the chance that the genetic material found in the sperm sample came from someone other than Vann was less than one in 1 quintillion.
The trial judge's ruling in response to Vann's confrontation clause objection
Before Cheryl Duda took the stand, Vann's attorney objected to having Duda " testify to what [Jessica] Cohen did, and what [testing] results she turned in." The trial judge, Superior Court Judge Charles T. Huguelet, concluded that this issue was governed by Alaska Evidence Rule 703.
Evidence Rule 703 governs expert testimony: it allows a witness to offer an expert opinion based on underlying information or data that was " made known" to the expert, even if this information or data would not be independently admissible under the rules of evidence, so long as the information or data is " of a type reasonably relied upon by experts in [that] particular field [when] forming opinions or inferences upon the subject" .
In other words, under Evidence Rule 703, the proponent of expert testimony need not show that the information or data that the expert is relying on could survive a hearsay objection or an objection based on the expert witness's lack of first-hand knowledge. See the fifth and sixth paragraphs of the Commentary to Alaska Evidence Rule 703; Guerre-Chaley v. State, 88 P.3d 539, 542 (Alaska App.2004).
Responding to the defense attorney's objection, Judge Huguelet stated that the determinative issue was whether Cohen's test results were " something that someone in [Duda's] field of expertise [would rely] on, routinely, to base their opinions" . The judge then explained:
The Court: If this is the type of fact or data that is reasonably relied upon by experts in Ms. Duda's field, then she should be able to testify to it. If it isn't, then she shouldn't.... I mean, if [this information is offered] as a basis for her opinion, the facts or data that she has relied on, then it would probably be admissible. [But] I'd have to hear it, you know. I can't predetermine [this question].
Vann's attorney argued that a normal Rule 703 analysis did not apply, because the State was not simply trying to introduce the facts or data underlying Duda's opinion. Rather, the defense attorney argued, the State was
really attempting to introduce one expert witness's findings (Cohen's findings) through the testimony of another expert witness (Duda):
Defense Attorney: The problem is [that] the State is trying to [have] Ms. Duda testify [about] Ms. Cohen's work.... [T]he State wants ... Ms. Duda to be able to testify to what Ms. Cohen did, and then testify to what Ms. Cohen's results were. [Ms. Cohen's test was] a totally different test. That's [inadmissible] hearsay, and in violation of [Vann's] right to confront [his accusers]....
There [were] two different tests, is what I'm saying. Two different tests were done by two different people.
Judge Huguelet reiterated his view that the issue was governed by Evidence Rule 703: " [Duda's testimony] needs to fit into [Rule] 703.... [If] her opinion ... [is] based on someone else's work, and that's what experts in [her] field rely on, then she should be ...