State v. Crager

[Cite as State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-6840.]
THE STATE OF OHIO, APPELLANT, v. CRAGER, APPELLEE.
[Cite as State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-6840.]
Criminal law – Evidence — Confrontation Clause – “Testimonial” evidence
requiring opportunity for cross-examination by accused – DNA analysis
conducted at request of prosecutor in anticipation of trial that identifies
victim’s blood on defendant’s clothing is not “testimonial” for purposes of
Confrontation Clause – DNA-analysis report admissible when preparer of
analysis does not testify at trial and qualified expert testifies in her place.
(Nos. 2006-0294 and 2006-0298 — Submitted January 24, 2007 — Decided
December 27, 2007.)
APPEAL from and CERTIFIED by the Court of Appeals for Marion County,
No. 9-04-54, 164 Ohio App.3d 816, 2005-Ohio-6868.
__________________
SYLLABUS OF THE COURT
1. Records of scientific tests are not “testimonial” under Crawford v.
Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177.
2. A criminal defendant’s constitutional right to confrontation is not violated
when a qualified expert DNA analyst testifies at trial in place of the DNA
analyst who actually conducted the testing.
__________________
O’CONNOR, J.
{¶ 1} This appeal requires us to examine issues concerning the extent
that the admission into evidence of records of scientific tests (such as DNA
reports) in a criminal trial implicates the Confrontation Clause of the Sixth
Amendment to the United States Constitution. Our precedent in State v. Craig,
110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, strongly supports the
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conclusion that the DNA reports in this case are not “testimonial” as that term is
defined in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177. Furthermore, although there is a split of authority among other
jurisdictions on the issues we resolve, the better-reasoned cases hold that records
of scientific tests like those involved here are not “testimonial.” We therefore
reverse the judgment of the court of appeals.
I
{¶ 2} On April 10, 2004, Esta Boyd’s body was found in the bedroom of
her home in Marion. The crime scene was bloody; the coroner found that Boyd
had suffered multiple blows to the head, which caused subarachnoid
hemorrhaging. He estimated that she had been dead for one to three days when
found. A witness testified that when he had talked to Boyd at around 7:30 or 8:00
on the evening of April 7, Boyd told him that she was “sitting there talking to
Lee.” Defendant-appellee, Lee Crager, was an acquaintance of Boyd; Crager’s
father and Boyd were close friends. The last person to hear from Boyd spoke to
her at around 8:45 on April 7.
{¶ 3} By the time Boyd’s body was discovered, Crager was already in
jail. He had been arrested on April 8, 2004, at around 8:30 p.m. for failing to pay
his bill at Mikey’s Pizza. The arresting officer reported that Crager was
intoxicated and had blood on his pants and on one of his knuckles. On April 10,
2004, officers went to the Multi-County Correctional Center to recover Crager’s
clothing and to photograph him. Crager had cuts on the knuckles of his right hand
and scratches on the inner portion of his right forearm.
{¶ 4} Laboratory testing on Crager’s shirt revealed that it contained
human blood stains, which contained Boyd’s DNA. Testing conducted on a ring
worn by Boyd revealed the presence of Crager’s DNA. Cigarette butts found in
an ashtray in Boyd’s bedroom contained Boyd’s and Crager’s DNA.
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{¶ 5} Other evidence pointed to Crager’s presence in Boyd’s home.
Two palm prints from Crager were found on a mirror in Boyd’s bedroom, and his
thumb print was found on a beer can recovered from her home. A witness
testified that he had seen Crager walking toward Boyd’s house at about 5:00 p.m.
on April 7. Detectives discovered that the last phone call made from Boyd’s
phone had been made to the Marion Area Counseling Center. The Marion Area
Counseling Center had received a call from Crager between 11:30 a.m. and 12:30
p.m. on April 8.
{¶ 6} Evidence established that the killer likely was in Boyd’s house for
a significant period of time. Phone records indicated that Boyd’s phone was used
to call phone sex-line numbers on April 8 at 3:54 a.m., 10:04 a.m., 1:04 p.m., 1:06
p.m., and 1:08 p.m. There were a number of empty beer cans and an empty
whiskey bottle found in the building, but testimony established that Boyd rarely
drank alcoholic beverages. There were 22 cigarette butts in an ashtray in Boyd’s
bedroom, but testimony revealed that Boyd generally did not permit smoking in
her house.
{¶ 7} The case proceeded to a jury trial. Based on the way this case
comes to us, the state’s presentation of DNA evidence at trial is the focal point for
resolving the issues presented. Therefore, we recount the way that evidence was
presented in considerable detail.
{¶ 8} The state introduced the DNA evidence in its case against Crager
through the testimony of DNA expert Steven M. Wiechman of the Bureau of
Criminal Identification and Investigation (“BCI”). Jennifer Duvall, the DNA
analyst who prepared the two DNA reports at issue, was on maternity leave at the
time of trial and did not testify.
{¶ 9} Shortly before the state called Wiechman to the witness stand,
Crager’s defense attorney moved, outside of the presence of the jury, to prevent
Wiechman from testifying regarding any DNA evidence. Counsel argued solely
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that Wiechman’s testimony was hearsay because “Mr. Wiechman did not conduct
the testing, he did not remove any samples to be tested, he did not do the actual
calculations. * * * I don’t see how he can testify to what someone else did.”
{¶ 10} As the record makes evident, defense counsel’s opposition to
Wiechman testifying was solely based on hearsay grounds, not on the
Confrontation Clause. Furthermore, counsel did not object to the admission into
evidence of the DNA reports themselves, but argued only that Wiechman should
not be permitted to testify because he was not the DNA analyst who actually
performed the tests and signed the report.
{¶ 11} In response, the prosecutor asserted that the DNA reports were
business records and that Wiechman did a “technical review” of Duvall’s work to
ensure “the integrity of the process.” The prosecutor further argued that, as with
any other business record, when “someone * * * makes a documentation, another
witness can testify to it because it’s done in the normal and ordinary course of
business.” The trial court denied defense counsel’s motion and allowed
Wiechman to testify, stating, “You can ask him – ask Mr. Wiechman anything
you want about ‘these aren’t your calculations’, I will give you plenty of leeway
on that.”1
{¶ 12} Wiechman testified as to his qualifications, education, training, and
experience as a DNA expert. He stated that Crager’s trial was the 36th time that
he had testified as an expert witness and that he had conducted DNA testing for
“hundreds of cases.” He testified about the history and fundamentals of DNA
testing and described safeguards in place to ensure the accuracy of all DNA tests
1. After the trial court’s ruling, but prior to Wiechman’s testimony, the state offered the testimony
of BCI analyst Mark Losko, a forensic scientist in the DNA/Serology section of BCI, who did the
serology work in this case. Losko testified that analysts in the serology section “examine the
evidence and try to identify the stain of interest, whether it be blood, semen, or saliva. We obtain
those samples for DNA testing.” Losko discussed some of the items upon which DNA testing was
conducted by Duvall and explained how he obtained the samples from the items for testing.
Losko’s serology reports were admitted into evidence as State’s Exhibits 54 and 55.
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done at BCI, including a requirement that each analyst must pass a “proficiency
test” twice a year, which involves analyzing a special test sample, drawing
conclusions, and then submitting the test sample results to be evaluated for
accuracy. Wiechman further testified that BCI is accredited by the American
Society of Crime Laboratory Directors, Laboratory Accreditation Board.
{¶ 13} Wiechman then explained the DNA testing review process that
BCI does in every case: “Once a case is completed by an analyst it is actually
gone through [sic] two review processes. One is a technical review process, and
the other is an administrative process. With regards to the technical review,
another qualified analyst would actually check the work of another analyst to
determine whether they followed all the correct procedures, whether they agree
with their case approach, anything that that analyst did, another analyst would
look at and would have to agree with, and then in turn sign off on that particular
case.
{¶ 14} “Once that is completed there is what’s called an administrative
review which a Supervisor would look at a case and basically make sure there
[are] no mistakes, that pretty much everything has been followed. Then once
those two review processes have been done, then the case actually goes out the
door and is sent to a requesting agency. But on 100 percent of the cases that is
what is done.”
{¶ 15} Wiechman stated that the review process is in place to ensure
accuracy and reliability. “Mistakes can be made, typos can be made. But to have
those safeguards in place insures that there’s reliability within those results.”
Wiechman testified that in some circumstances DNA testing “can be quite lengthy
depending upon what you’re looking at.” He further stated that DNA testing is
not done on every item of evidence, “[b]ecause of the volume of cases that we
get, and because of so many requests. It’s virtually impossible to test every single
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stain on every piece of evidence. It’s just not only inefficient as far as case
approach goes, but it’s also very costly.”
{¶ 16} Wiechman testified that each case from the state includes a “case
synopsis,” which explains “what happened in the case and what questions does
the [Police] Department have, and what they’re trying to answer with regard to
the physical evidence that they have submitted.” BCI personnel also consult with
law enforcement and “sometimes the Prosecutor” to identify the information that
“will be of use to us to help guide us in determining what samples to look at, and
that’s what was done in this particular case.” Furthermore, there is “give and
take” between BCI and the requesting agency as to what is tested, and “ultimately
it’s the Prosecutor’s decision on what we’ll actually look at.”
{¶ 17} Wiechman informed the jury that in this case BCI conducted DNA
testing at law enforcement’s request. He stated that he was not the analyst who
did the testing, but that Duvall did the testing and he “technically reviewed it.”
{¶ 18} Wiechman testified that his technical review of Duvall’s work
involved reviewing her notes, the DNA profiles she generated, her conclusions,
and the final report, which consisted of “all the findings that she had within this
case. I actually technically reviewed that and made sure that the decisions or
conclusions that she came up with were consistent and were supported by her
work that she did.”
{¶ 19} Wiechman stated that when he did the technical review, he did not
know when the case would be tried or that he would be testifying. He explained
his review of the DNA “profiles” by stating:
{¶ 20} “The profiles that are generated on the knowns and unknowns are
basically what we call electrophrerograms, they're basically charts. From those
charts there's actually a sheet that [the analyst] determines what the profile is. I
will, in turn, once she has completed her analysis I will, in fact, independently
verify the correct calls that she made, or, she said ‘this is what the profile is’, I
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will actually go back and verify yes, in fact, she made the correct calls or correct
decision on what this profile was.”
{¶ 21} Wiechman stated that he had looked at the same data Duvall
looked at and that he had come to the same conclusions. In response to a question
regarding the procedure for resolving a possible discrepancy, Wiechman testified:
{¶ 22} “If there's a discrepancy between the technical reviewer and the
analyst, then they can get together and meet and say, ‘Okay, I think this’ or ‘I
think this’, and then if a consensus still isn't reached there then it can actually
either go to — what we have is a Forensic Science Coordinator, or another person
that can be consulted, or it can actually go to the supervisor who will in turn say,
‘Okay, yes, I believe that this person is correct or this interpretation is correct or
you're both right’ and you can come to a consensus that way.” Wiechman stated
that there were no discrepancies in this case.
{¶ 23} Wiechman’s testimony then focused on two “rounds” of DNA
testing, both of which were done by Duvall, which resulted in two separate DNA
reports. State’s Exhibit 56 was the first report, detailing the results of testing done
on a stain on Crager’s shirt that revealed Boyd’s DNA. Wiechman testified that
the frequency of occurrence of Boyd’s DNA profile was “1 in 1.028 quintillion
people.” State’s Exhibit 57 was the second, later, report, detailing the results of
testing done on Boyd’s ring and on cigarette butts taken from the victim's
bedroom. Testing of the ring revealed Crager’s DNA. Wiechman testified that
the frequency of occurrence of the DNA found on the ring was one in 7.8 million
people. Testing of the cigarette butts also revealed Crager’s DNA. Wiechman
testified that the frequency of occurrence of the DNA found on one of the
cigarette butts was one in 13.7 quadrillion people.
{¶ 24} On cross-examination, Wiechman stated that he “actually
technically reviewed the second [round of testing], but in preparation for court I
reviewed, unofficially to prepare for testimony, I reviewed the entire case file.”
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He agreed with defense counsel’s statements that DNA testing is limited to
revealing “what something is * * * and perhaps who it came from” and cannot
reveal “how it got there.” Wiechman further elaborated:
{¶ 25} “All I can say is that this particular DNA profile is on this
particular piece of evidence, and this person may or may not have contributed that
stain or that profile. * * * I guess in general terms you can’t really say ‘okay, this
DNA got on this particular item in this particular time’ or even within a certain
window. All you can say [is] ‘this is what I found, it’s consistent with these
people’ or ‘not consistent with these people. Here are my conclusions’, and that’s
what we report.”
{¶ 26} On redirect, Wiechman stated that the purpose of a DNA test is not
to match a particular individual: “The test is just to produce a profile. When you
actually do the comparison, that is when you determine whether or not a person
may or may not have contributed to that stain.” Further, “[y]ou have no idea
when you’re doing the analysis if you’re gonna get one person, if you’re gonna
get two, if you’re gonna get three. I’ve had cases where you get lots of people in
a particular stain. You just don’t know until you actually do the analysis. When
you sit down and do your interpretation of the data and then make the comparison
between the knowns and the unknowns. Then you can determine ‘yes, this came
from a person that’s consistent with this person, it’s not consistent with that
person’. That’s actually after you do the physical bench work. Then you sit
down and you interpret your data. * * * [T]he actual data is presented in the
report and then there’s paragraph form data that actually explains what that data
means.”
{¶ 27} On recross, Wiechman explained the extent of the DNA testing
that yielded the DNA of only two persons (Boyd and Crager) on the items tested.
In response to defense counsel’s questions, Wiechman explained that the
“synopsis” provided by whoever requests testing, which sets forth the details of
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the case, does not dictate the results: “I make that determination [that the DNA
was consistent with Boyd and Crager] based on the data that I have, that it
supports that conclusion that it’s consistent with these two people. So although
we take the synopsis into consideration, when we’re making our interpretation of
the data, that’s when the conclusion is drawn. * * * [A]ll of the profiles obtained
in this case could be explained with one interpretation, this interpretation in this
case consistent with these two people.” Wiechman also stated that some items
that could have been tested were not, because testing is done only on those items
that are “requested to be tested.”
{¶ 28} On final redirect, Wiechman clarified that the synopsis presented
to BCI by law-enforcement personnel when they request testing is not a factor
BCI’s experts rely on in reaching their determinations: “The interpretation is
made based upon the data that’s obtained in the case. The synopsis is only to
guide us and to help support the findings that we have.”
{¶ 29} The prosecutor then asked, “[I]f law enforcement said to you,
‘Hey, we are satisfied it’s Lee Crager, and that’s the only one person’s DNA we
want you to look for’, would you do the test that way?” Wiechman responded:
{¶ 30} “No. * * * [W]e’re an unbiased agency. So we’re not looking for
any one particular person. We’re saying ‘okay, these are the items that you’re
requesting us to perform DNA analysis on, these are what we’ll do’. I have no
idea what we have, we’ll present the evidence or the findings that we have, and if
that’s sufficient then perhaps no other request will be made. If it’s not sufficient
and they feel additional testing’s required, then they can request that. But at this
time once we based our conclusions on the data that we had, based on those two
rounds of testing, it was determined by [the prosecutor’s] office that that was
sufficient for him, and that’s what was done.”
{¶ 31} Finally, in response to a question regarding whether the amount of
DNA testing done in this case was “more or less than [is] typically done in similar
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cases,” Wiechman stated, “Depending on the complexity, this is probably about
average.”
{¶ 32} At the conclusion of the jury trial, Crager was found guilty of
aggravated murder and aggravated burglary. Upon Crager’s appeal, the court of
appeals reversed the judgment of the trial court and remanded for further
proceedings, concluding that the DNA report was testimonial and that Crager’s
Sixth Amendment right to confrontation had been violated. Based on that
determination, the court of appeals found other assignments of error moot and did
not address them.
{¶ 33} This court accepted the court of appeals’ certification of a conflict
and ordered the parties to brief the issue as stated in the court of appeals’ journal
entry:
{¶ 34} “Are records of scientific tests, conducted by a government agency
at the request of the State for the specific purpose of being used as evidence in the
criminal prosecution of a specific individual, ‘testimonial’ under Crawford v.
Washington (2004), 541 U.S. 36, 124 S.Ct. 1354 [158 L.Ed.2d 177]?” 109 Ohio
St.3d 1421, 2006-Ohio-1967, 846 N.E.2d 532.
{¶ 35} In the case certified as being in conflict, State v. Cook, 6th Dist.
No. WD-04-029, 2005-Ohio-1550, ¶ 19-20, the Sixth District Court of Appeals
held that law-enforcement records of checks done on a breath-alcohol testing
machine and of the qualifications of the officer who was the custodian of those
records were not testimonial under Crawford, because they bore “no similarities
to the types of evidence the Supreme Court labeled as testimonial” and also
because the records qualified as business records under Evid.R. 803(6), “which, at
least according to dicta in Crawford, are not testimonial.”
{¶ 36} We also accepted a discretionary appeal, 109 Ohio St.3d 1423,
2006-Ohio-1967, 846 N.E.2d 533, on one of the state’s propositions of law, which
asserts:
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{¶ 37} “A criminal defendant’s constitutional right to confrontation is not
violated when a DNA analyst testifies at his trial in place of the DNA analyst who
conducted the DNA testing. Neither records which are admissible under the
business records exception to the rule against hearsay nor expert testimony, are
testimonial under Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354[158 L.Ed.2d 177].”
II
{¶ 38} The starting point for our analysis is that the DNA reports admitted
into evidence in this case were “business records,” under the hearsay exception of
Evid.R. 803(6). The reports were made “from information transmitted by, a
person with knowledge, [and are] kept in the course of a regularly conducted
business activity,” and it “was the regular practice of that business” (BCI) to make
the reports. Furthermore, the reports were introduced through the testimony of a
“qualified witness” (Wiechman) and nothing suggests that the “method or
circumstances of preparation indicate lack of trustworthiness.” See State v. Craig,
110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 81-82 (autopsy reports
are business records).
{¶ 39} This case presents the issue whether the DNA reports, even though
properly admissible as business records under the applicable exception to the
hearsay rule, might nevertheless violate the Sixth Amendment to the United States
Constitution, which provides that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to be confronted with the witnesses against him.”
{¶ 40} Prior to the United States Supreme Court’s Crawford decision, the
determination that the DNA reports were business records would have ended the
inquiry under the Confrontation Clause and resulted in the conclusion that
Crager’s right to confrontation was not violated. The Supreme Court had held in
Ohio v. Roberts (1980), 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597, that an
unavailable witness’s out-of-court statement against a criminal defendant was not
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barred by the Confrontation Clause if it bore adequate “indicia of reliability,” i.e.,
if it fell within a “firmly rooted hearsay exception,” or it bore “particularized
guarantees of trustworthiness.” The DNA reports in this case, as Evid.R. 803(6)
business records, satisfy the Roberts test.
{¶ 41} However, Crawford overruled Roberts by establishing in its place
a new and very different approach. In Crawford, 541 U.S. at 53-54, 124 S.Ct.
1354, 158 L.Ed.2d 177, the Supreme Court held that “testimonial” out-of-court
statements presented in a criminal trial violate the Confrontation Clause unless the
witness was unavailable to testify at trial and the defendant had a prior
opportunity to cross-examine the witness. After Crawford, the key inquiry for
Confrontation Clause purposes is whether a particular statement is testimonial or
nontestimonial.
{¶ 42} The Crawford court stated, “Where nontestimonial hearsay is at
issue, it is wholly consistent with the Framers’ design to afford the States
flexibility in their development of hearsay law—as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause scrutiny
altogether. Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Crawford at 68, 124 S.Ct. 1354, 158 L.Ed.2d
177; see also State v. Muttart, 116 Ohio St.3d 5, 2007-Ohio-5267, 875 N.E.2d
944, ¶ 59 (only testimonial statements implicate the Confrontation Clause).
{¶ 43} Crawford noted that “not all hearsay implicates the Sixth
Amendment’s core concerns,” id. at 51, 124 S.Ct. 1354, 158 L.Ed.2d 177, and
that its holding did not apply to all hearsay, because many statements entered into
evidence pursuant to hearsay exceptions are “not testimonial—for example,
business records or statements in furtherance of a conspiracy,” id. at 56, 124 S.Ct.
1354, 158 L.Ed.2d 177. See also Davis v. Washington (2006), 547 U.S. 813, ___,
126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (nontestimonial hearsay, “while subject to
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traditional limitations upon hearsay evidence, is not subject to the Confrontation
Clause”).
{¶ 44} The Crawford court, 541 U.S. at 51-52, 124 S.Ct. 1354, 158
L.Ed.2d 177, noted three “formulations” of a “core class” of testimonial
statements: “ ‘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,’ Brief for
Petitioner 23; ‘extrajudicial statements * * * contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confessions,’ White
v. Illinois, 502 U.S. 346, 365, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992) (Thomas, J.,
joined by Scalia, J., concurring in part and concurring in judgment); [and]
‘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,’ Brief for National Association of Criminal Defense Lawyers et al. as
Amici Curiae 3.”
{¶ 45} In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d
834, at paragraph one of the syllabus, this court adopted the third “formulation” to
hold that “[f]or Confrontation Clause purposes, a testimonial statement includes
one made ‘under circumstances which would lead an objective witness reasonably
to believe that the statement would be available for use at a later trial.’ ” Id.,quoting Crawford, id. Stahl has no application here because Stahl involved the
testimonial nature of actual oral “statements” of a declarant and did not involve
records of scientific tests or the business-records exception to the hearsay rule.2
Furthermore, as explained below, a statement is not “testimonial” merely because
2. Our recent decision in State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637, 876 N.E.2d 534,
2007 WL 3121283, involved statements made by a witness to a police officer during interrogation,
and therefore is distinguishable from the instant case.
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it may reasonably be expected to be introduced at a later trial, although that may
be a proper consideration in certain other situations involving specific oral
statements of a declarant.
{¶ 46} In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853
N.E.2d 621, we concluded that the defendant’s Confrontation Clause rights were
not violated when an autopsy report prepared by a doctor who did not testify at
trial was entered into evidence, and a different doctor provided expert testimony
about the autopsy after reviewing the report and supporting materials. As to the
testifying doctor in Craig, this court held that her expert testimony did not violate
the defendant’s right to confrontation, because the jury was fully aware that she
had not personally conducted or been present at the autopsy and because the
defense had the opportunity to question her “about the procedures that were
performed, the test results, and her expert opinion about the time and cause of
death.” Id. at ¶ 79. We further held that the autopsy report was properly admitted
as a business record under Evid.R. 803(6). Id. at ¶ 80.
{¶ 47} We based our decision in Craig in part on the Crawford court’s
statement that “business records are, ‘by their nature,’ not testimonial.” Craig, at
¶ 81, quoting Crawford, 541 U.S. at 56, 124 S.Ct. 1354, 158 L.Ed.2d 177. We
reasoned: “An autopsy report, prepared by a medical examiner and documenting
objective findings, is the ‘quintessential business record.’ Rollins v. State (2005),
161 Md.App. 34, 81, 866 A.2d 926. ‘The essence of the business record hearsay
exception contemplated in Crawford is that such records or statements are not
testimonial in nature because they are prepared in the ordinary course of regularly
conducted business and are ‘by their nature’ not prepared for litigation.’ People
v. Durio (2005), 7 Misc.3d 729, 734, 794 N.Y.S.2d 863.
{¶ 48} “Most jurisdictions that have addressed the issue under Crawford
have found that autopsy reports are admissible as nontestimonial business or
public records. See Moreno Denoso v. State (Tex.App.2005), 156 S.W.3d 166,
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180-182 (autopsy report was not testimonial and was admissible without the
deceased pathologist’s testimony); Durio, 7 Misc.3d at 734-737, 794 N.Y.S.2d
863 (autopsy report was nontestimonial and its admission without the testimony
of the medical examiner who performed the autopsy did not violate Crawford);
State v. Cutro (2005), 365 S.C. 366, 378, 618 S.E.2d 890 (autopsy report was
nontestimonial).
{¶ 49} “* * *
{¶ 50} “We agree with the majority view under Crawford and conclude
that autopsy records are admissible as nontestimonial business records.” Craig,
110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶ 82-83 and 88.
{¶ 51} The autopsy report at issue in Craig is not distinguishable from the
DNA reports in this case. Like that autopsy report, the DNA reports here are
nontestimonial. We reject the position that these DNA reports are different
because the lab work that produced them was done at the request of the
prosecution or because it was reasonably expected that the reports would be used
in a criminal trial.
{¶ 52} Although BCI’s statutory mission under R.C. 109.52 is to “aid”
law enforcement in solving crimes, BCI is not itself an “arm” of law enforcement
in the sense that the word implies a specific purpose to obtain incriminating
results. As the testimony of Wiechman detailed above demonstrates, although
BCI conducts tests at the request of law-enforcement personnel or other entities
affiliated with the state, BCI maintains its independence to objectively test and
analyze the samples it receives.
{¶ 53} Furthermore, BCI’s analysis and testing are not intended to arrive
at a predetermined result. If that were the case, then BCI would have no
credibility and would be unable to maintain its accreditation. Rather, BCI’s
testing can both include and exclude suspected potential donors from the DNA
pool, as Wiechman’s testimony recounts. Therefore, there is nothing inherently
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untrustworthy about the tests conducted by BCI. We decline to create standards
that would evaluate scientific tests conducted by BCI differently than we would
evaluate similar tests conducted by a private laboratory. The same standards also
should apply when the state wishes to use scientific tests conducted at the request
of a criminal defendant against that defendant.
{¶ 54} Although it could have been reasonably expected that the DNA
reports would be used in a criminal trial, that consideration was also present with
the autopsy report in Craig. As in Craig, the scientific-test reports in this case
were prepared in the ordinary course of regularly conducted business and so were
not testimonial.
{¶ 55} We fully agree with those courts that have rejected arguments
regarding the “testimonial” nature of scientific-test reports such as the DNA
reports involved in this case.
{¶ 56} In holding that serology reports were properly admitted even
though the analyst who prepared the reports did not testify, the Supreme Court of
North Carolina stated in State v. Forte (2006), 360 N.C. 427, 435, 629 S.E.2d
137: “Under the Supreme Court’s analysis [in Crawford], the reports at issue here
are not testimonial. They do not fall into any of the categories that the Supreme
Court defined as unquestionably testimonial. These unsworn reports, containing
the results of [the preparer’s] objective analysis of the evidence, along with
routine chain of custody information, do not bear witness against defendant. * * *
Instead, they are neutral, having the power to exonerate as well as convict.
Although we acknowledge that the reports were prepared with the understanding
that eventual use in court was possible or even probable, they were not prepared
exclusively for trial and [the preparer] has no interest in the outcome of any trial
in which the records might be used.”
{¶ 57} In People v. Brown (2005), 9 Misc.3d 420, 424, 801 N.Y.S.2d 709,
the court reasoned:
16
January Term, 2007
{¶ 58} “The notes and records of the laboratory technicians who tested the
DNA samples in this case were not made for investigative or prosecutorial
purposes but rather were made for the routine purpose of ensuring the accuracy of
the testing done in the laboratory and as a foundation for formulating the DNA
profile.
{¶ 59} “* * * [T]he notes of the many laboratory personnel who
conducted the four steps of DNA profiling over several days were made during a
routine, non-adversarial process meant to ensure accurate analysis and not
specifically prepared for trial. Because DNA testing requires multiple steps done
by multiple technicians over multiple days, all of the steps in the process must be
documented for the benefit of supervisors and technicians who perform
subsequent testing functions.”
{¶ 60} This case is very similar to People v. Geier (2007), 41 Cal.4th 555,
61 Cal.Rptr.3d 580, 161 P.3d 104, a recent decision of the Supreme Court of
California. In a thorough and well-reasoned opinion, the Geier court specifically
held that the DNA report at issue in that case was not testimonial for
Confrontation Clause purposes and so the defendant’s Sixth Amendment rights
were not violated by its admission into evidence. Id. at 607, 61 Cal.Rptr.3d 580,
161 P.3d 104.
{¶ 61} In Geier, the prosecution contracted with a private laboratory to
conduct DNA testing. The prosecution’s DNA expert—who did not personally
conduct the testing but did sign the report as the supervisor of the biologist who
did the actual testing—testified that in her opinion DNA extracted from vaginal
swabs taken from the victim matched a sample of the defendant’s DNA. The
defendant argued that the DNA expert’s testimony violated his Sixth Amendment
confrontation right pursuant to Crawford because the expert’s opinion was based
on testing that the expert did not personally conduct. Id. at 593-594, 61
Cal.Rptr.3d 580, 161 P.3d 104.
17
SUPREME COURT OF OHIO
{¶ 62} The defendant in Geier further argued that under Crawford, the
DNA report that was the basis of the expert’s testimony was testimonial “because
it was a statement ‘made under circumstances that would lead an objective
witness reasonably to believe that the statement would be available for use at a
later trial.’ ” Geier, 41 Cal.4th at 598, 61 Cal.Rptr.3d 580, 161 P.3d 104, quoting
Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. The Geier court
stated the issue as “whether the admission of scientific evidence, like laboratory
reports, constitutes a testimonial statement that is inadmissible unless the person
who prepared the report testifies or Crawford’s conditions—unavailability and a
prior opportunity for cross-examination—are met,” and then observed that courts
disagree as to the answer. Id.{¶ 63} The court noted that some courts adopt a bright-line test
concluding that because scientific-test evidence (whether it be fingerprint
analysis, autopsy reports, serology reports, drug-analysis reports, or DNA reports)
is prepared for possible use in a criminal trial, it is “testimonial” under Crawford.
As typical examples of this position, the court cited State v. Caulfield
(Minn.2006), 722 N.W.2d 304, and Las Vegas v. Walsh (2005), 121 Nev. 899,
124 P.3d 203; and also the decision of the court of appeals below in this case:
State v. Crager, 164 Ohio App.3d 816, 2005-Ohio-6868, 844 N.E.2d 390. Geier,
41 Cal.4th at 599, 61 Cal.Rptr.3d 580, 161 P.3d 104.
{¶ 64} The Geier court then noted that other courts have held that
scientific evidence is not testimonial, even if it was prepared for possible use at
trial. Some courts base this conclusion on indications within Crawford that such
evidence does not implicate the abuses the Confrontation Clause is meant to
prevent, and other courts rely on Crawford’s comments that “business records”
generally are not within the scope of Confrontation Clause concerns. Id.{¶ 65} The Geier court concluded that “[t]hese more nuanced readings of
Crawford reject those readings that ‘focus too narrowly on the question of
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January Term, 2007
whether a document may be used in litigation. This was but one of the several
considerations that Crawford identified as bearing on whether evidence is
testimonial [and] [n]one of these factors was deemed dispositive.’ (People v. So
Young Kim (2006), 368 Ill.App.3d 717 [720], 307 Ill.Dec. 92, 859 N.E.2d 92, 94
[certification of Breathalyzer machine used to determine blood-alcohol content
not testimonial].)” Geier, 41 Cal.4th at 600, 61 Cal.Rptr.3d 580, 161 P.3d 104.
See also People v. Johnson (2004), 121 Cal.App.4th 1409, 1412, 18 Cal.Rptr.3d
230 (“A laboratory report does not ‘bear testimony,’ or function as the equivalent
of in-court testimony. If the preparer had appeared to testify * * * he or she
would merely have authenticated the document”); Commonwealth v. Verde
(2005), 444 Mass. 279, 283-284, 827 N.E.2d 701 (certificates of chemical
analysis “merely state the results of a well-recognized scientific test determining
the composition and quantity of the substance” and have “very little kinship to the
type of hearsay the confrontation clause was intended to exclude * * * . [I]t is
akin to a business or official record, which the [Crawford] Court stated was not
testimonial in nature”).
{¶ 66} After reviewing the various cases from around the country
(including our decision in State v. Craig), the California Supreme Court in Geier
concluded, “While we have found no single analysis of the applicability of
Crawford and Davis to the kind of scientific evidence at issue in this case to be
entirely persuasive, we are nonetheless more persuaded by those cases concluding
that such evidence is not testimonial, based on our own interpretation of Crawford
and Davis.” Geier, 41 Cal.4th at 605, 61 Cal.Rptr.3d 580, 161 P.3d 104. The
Geier court determined that the key factor for determining that a scientific-test
report is “testimonial” is whether it “describes a past fact related to criminal
activity” even when the report was made at the request of law-enforcement
officers and was prepared for possible use at trial. Id.19
SUPREME COURT OF OHIO
{¶ 67} In answering this key question in the negative, the Geier court
stated that the report of the DNA analyst who did the actual testing “constitute[s]
a contemporaneous recordation of observable events rather than the
documentation of past events. That is, [the analyst] recorded her observations
regarding the receipt of the DNA samples, her preparation of the samples for
analysis, and the results of that analysis as she was actually performing those
tasks. ‘Therefore, when [she] made these observations, [she]—like the declarant
reporting an emergency in Davis—[was] “not acting as [a] witness[ ];” and [was]
“not testifying.” ’ ” Id., 41 Cal.4th at 605-606, 61 Cal.Rptr.3d 580, 161 P.3d 104,
quoting United States v. Ellis (C.A.7, 2006), 460 F.3d 920, 926-927.
{¶ 68} We agree with this analysis in Geier, which specifically rejects the
approach of those courts that hold that laboratory reports are testimonial “because
their primary purpose was to establish a fact at trial regarding the defendant’s
guilt,” id., including State v. March (Mo.2007), 216 S.W.3d 663. March and
decisions like it improperly read Davis to find any statement “testimonial”
whenever it might reasonably be expected to be used at trial, when the inquiry
actually should focus on “whether the statement represents the contemporaneous
recordation of observable events.” Geier, 41 Cal.4th at 606 and 607, 61
Cal.Rptr.3d 580, 161 P.3d 104.
{¶ 69} In ultimately determining that the DNA report at issue in that case
was nontestimonial, the Geier court observed that the report and notes of the
DNA analyst who did the testing “were generated as part of a standardized
scientific protocol that she conducted pursuant to her employment at [the lab].
While the prosecutor undoubtedly hired [the lab] in the hope of obtaining
evidence against defendant, [the testing analyst] conducted her analysis, and made
her notes and report, as part of her job, not in order to incriminate defendant.
Moreover, to the extent [the testing analyst’s] notes, forms and report merely
recount the procedures she used to analyze the DNA samples, they are not
20
January Term, 2007
themselves accusatory, as DNA analysis can lead to either incriminatory or
exculpatory results. Finally, the accusatory opinions in this case * * * were
reached and conveyed not through the nontestifying technician’s laboratory notes
and report, but by the testifying witness.
{¶ 70} “* * * In simply following [the lab’s] protocol of noting carefully
each step of the DNA analysis, recording what she did with each sample received,
[the testing analyst] did not ‘bear witness’ against defendant. (State v. Forte,
supra, [360 N.C. at 435] 629 S.E.2d at p. 143.) Records of laboratory protocols
followed and the resulting raw data acquired are not accusatory. ‘Instead, they
are neutral, having the power to exonerate as well as convict.’ (Ibid.)” Geier, 41
Cal.4th at 607, 61 Cal.Rptr.3d 580, 161 P.3d 104.
III
{¶ 71} Based on the Geier court’s broad generalized conclusion that DNA
and other scientific-testing reports are manifestly not testimonial, any factual
distinctions between the situation in that case and the situation in the case sub
judice are irrelevant for our purposes. Thus, it makes no difference that the DNA
testing in Geier was done by a private laboratory in contrast to the fact that BCI
did the testing in the present case. Furthermore, it makes no difference that the
analyst who testified in Geier personally signed the DNA report, in contrast to the
facts here that Wiechman did not sign either DNA report and specifically
participated only in the “second round” of DNA testing that produced State’s
Exhibit 57. Due to the nature of the Geier court’s fundamental reasoning, its
conclusion that DNA reports are nontestimonial is fully applicable to the
circumstances of this case as persuasive authority.
{¶ 72} The reasoning of Geier is also fully consistent with our reasoning
and result in Craig. See 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621.
The DNA reports at issue in this case are no different from the autopsy report at
issue in Craig for Confrontation Clause purposes. Under Evid.R. 803(6), the
21
SUPREME COURT OF OHIO
reports are business records of scientific tests that are nontestimonial under
Crawford and Davis. The reports fall well outside the “core class” of statements
identified in Crawford that may implicate the Confrontation Clause. Furthermore,
in this case, Wiechman was a qualified expert who was subject to cross-
examination, as was the testifying doctor in Craig. When DNA reports are
properly determined to be nontestimonial, it necessarily follows that Crager’s
Sixth Amendment Confrontation Clause rights were not violated.
{¶ 73} Although we acknowledge that the record shows that Wiechman
played no role in developing the DNA analysis that resulted in State’s Exhibit 56
in this case, that concern is irrelevant. As in Geier and in Craig, the testifying
witness, Wiechman, conveyed the “testimonial” aspects of the DNA results
against Crager, and Wiechman was subject to cross-examination. Just as in
Craig, the defense had the opportunity to question Wiechman “about the
procedures that were performed, the test results, and [his] expert opinion about”
the conclusions to be drawn from the DNA reports. Id., 110 Ohio St.3d 306,
2006-Ohio-4571, 853 N.E.2d 621, at ¶ 79. Wiechman had fully reviewed the
complete file, not just the DNA reports admitted into evidence and not just the
report he participated in preparing, and had reached his own conclusions about
both reports “to a reasonable degree of scientific certainty.” It is thus of no
import that he did not actively participate in both rounds of DNA testing.
{¶ 74} An examination of defense counsel’s cross-examination of
Wiechman reveals that this case does not implicate the types of abuses that
concerned the Crawford court. Crager did not challenge the specific testing
protocol or the accuracy of the raw data. There is no indication in the questions
or in Wiechman’s responses that there were any flaws in the testing itself. Rather,
defense counsel principally questioned Wiechman about general matters known to
any DNA expert, such as the limits of what DNA testing can establish. When
defense counsel did question the specifics of the DNA test results in this case,
22
January Term, 2007
Wiechman was fully qualified to, and did, answer any questions defense counsel
asked.
{¶ 75} Furthermore, for the most part, Wiechman responded with answers
that helped the defense make its points, such as that DNA testing cannot establish
how a particular stain came to be on a particular item or when a person’s DNA
might have appeared on an item. In addition, defense counsel was able to
establish through Wiechman’s testimony that some items that could have been
tested were not. As with the autopsy in Craig, Wiechman readily asserted that he
himself had not done the actual DNA testing, so the jury was well aware of that
fact.
{¶ 76} It is apparent that Crager’s right to confrontation was not at all
affected by Wiechman’s testifying. Moreover, if Duvall, who actually did the
DNA testing, had testified instead of Wiechman, her responses to defense
counsel’s questions likely would have been very similar, if not identical, to
Wiechman’s. There are no indications that Crager was not able to conduct a
meaningful cross-examination concerning State’s Exhibit 56.
{¶ 77} As a final matter, the practical results of affirming the judgment of
the court of appeals in this case would be problematical. If all the DNA analysts
who had actively participated in the testing and review process that generated the
DNA reports were unavailable to testify (for example, if all had died), should that
mean that no expert DNA witness, after reviewing the relevant materials, would
have been qualified to testify? If that were the situation, would the DNA tests
have to be redone, even though there are no questions about the accuracy of the
tests, and there are no indications of any discrepancies? These potential
consequences seem especially incongruous when viewed in light of the
considerations discussed above, i.e., that records of laboratory protocols that were
followed and of the resulting raw data are not accusatory and therefore are not
“testimonial.”
23
SUPREME COURT OF OHIO
{¶ 78} For all the foregoing reasons, we hold that records of scientific
tests are not “testimonial” under Crawford. This conclusion applies to include
those situations in which the tests are conducted by a government agency at the
request of the state for the specific purpose of potentially being used as evidence
in the criminal prosecution of a particular person.
{¶ 79} We further hold that a criminal defendant’s constitutional right to
confrontation is not violated when a qualified expert DNA analyst testifies at trial
in place of the DNA analyst who actually conducted the testing. In that situation,
the testifying expert analyst is the witness who is subject to cross-examination and
is the one who presents the true “testimonial” statements.
{¶ 80} Accordingly, we reverse the judgment of the court of appeals. We
remand the cause to that court to address the unresolved assignments of error that
it found moot and therefore did not address.
Judgment reversed
and cause remanded.
LUNDBERG STRATTON, O’DONNELL, and LANZINGER, JJ., concur.
KLINE, J., concurs separately.
MOYER, C.J., and PFEIFER, J., dissent.
ROGER L. KLINE, J., of the Fourth Appellate District, sitting for CUPP, J.
__________________
KLINE, J., concurring.
{¶ 81} I concur in the majority opinion and find that the DNA reports at
issue in this case are business records that are not “testimonial” under Crawford v.
Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177. I write
separately to explain why I respectfully disagree with the lower court’s holding
that “the fact that these [DNA] reports are prepared solely for prosecution makes
them testimonial.” (Emphasis added.) State v. Crager, 164 Ohio App.3d 816,
2005-Ohio-6868, 844 N.E.2d 390, ¶37. In my view, absent evidence to the
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January Term, 2007
contrary, it should be presumed that the primary purpose behind any county
prosecutor’s request for DNA analysis is to seek justice, not merely to prosecute
or convict a defendant.
{¶ 82} In Ohio, the county prosecutor is required to follow a code of
ethics. As in effect at the relevant time, Canon 7 of the Code of Professional
Responsibility, EC 7-13 provides:
{¶ 83} “The responsibility of a public prosecutor differs from that of the
usual advocate; his duty is to seek justice, not merely to convict. This special duty
exists because: (1) the prosecutor represents the sovereign and therefore should
use restraint in the discretionary exercise of governmental powers, such as in the
selection of cases to prosecute; (2) during trial the prosecutor is not only an
advocate but he also may make decisions normally made by an individual client,
and those affecting the public interest should be fair to all; and (3) in our system
of criminal justice the accused is to be given the benefit of all reasonable doubts.”
(Emphasis added.)
{¶ 84} Here, the prosecutor asked BCI for the DNA analysis through
glasses of justice, not glasses of conviction. Prosecutors' decisions are to "be fair
to all." Id. This includes Crager. When the prosecutor asked for the analysis, he
certainly did not know the results. At the precise time he asked, the future DNA
results could (1) exonerate Crager and eliminate the need for a trial or prosecution
or (2) implicate Crager and require a trial or prosecution. The record
demonstrates that the prosecutor's conduct in this area comports with this high
standard of professional responsibility.
{¶ 85} DNA expert Steven M. Wiechman testified to the guidelines BCI
follows when conducting its tests. He said, “[U]ltimately it’s the Prosecutor’s
decision on what we’ll actually look at.” However, he stated that the prosecutor
does not dictate the results and that BCI is “an unbiased agency.”
25
SUPREME COURT OF OHIO
{¶ 86} Therefore, in my view, when BCI followed its “unbiased”
guidelines and prepared the business records at the request and general direction
of the county prosecutor, it did so with the primary purpose of seeking justice.
Justice may, or may not, require prosecution.
{¶ 87} Accordingly, in the context of this explanation, I concur in the
majority opinion.
__________________
PFEIFER, J., dissenting.
{¶ 88} Because the majority opinion is contrary to the Supreme Court’s
holding in Crawford v. Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177, conflicts with syllabus law from this court’s recent decision in State
v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855 N.E.2d 834, and limits a
defendant’s ability to cross-examine the person who has produced a DNA report
that essentially identifies him as the perpetrator, I dissent.
{¶ 89} DNA evidence has become the “smoking gun” in criminal trials. It
can be a powerful tool for conviction or exoneration. DNA evidence is too
central to prosecution to allow the routine introduction of such evidence as a
business record. To do so would permit a records clerk to present the most
important piece of evidence against a defendant without allowing that defendant
to cross-examine the person responsible for preparing the report.
{¶ 90} The most important piece of evidence in this case is State’s Exhibit
56, the DNA report that identifies Esta Boyd’s blood on defendant Crager’s shirt.
Steve Wiechman testified regarding the contents of that report and to its ultimate
conclusion. Through Wiechman’s testimony, State’s Exhibit 56 was entered into
evidence. But one inescapable fact finally emerges well into the majority
opinion: Wiechman played no role in producing State’s Exhibit 56. The majority
opinion cites Wiechman’s testimony that he “technically reviewed” the work of
the DNA analyst, Jennifer Duvall, who did the actual testing on the blood samples
26
January Term, 2007
in State’s Exhibit 56. The majority opinion describes that technical review, and
states that “Wiechman stated that when he did the technical review, he did not
know when the case would be tried or that he would be testifying.” Majority
opinion at ¶ 19. The only problem is that Wiechman did not, in fact, technically
review State’s Exhibit 56. That fact emerges farther into the majority opinion,
though it is treated as unremarkable by the majority: “On cross-examination,
Wiechman stated that he ‘actually technically reviewed the second [round of
testing], but in preparation for court I reviewed, unofficially to prepare for
testimony, I reviewed the entire case file.’ ” Majority opinion at ¶ 24. So, despite
the majority’s citing Wiechman’s testimony that when he did his technical review,
“he did not know when the case would be tried or that he would be testifying,” the
truth is that Wiechman did not conduct the technical review of State’s Exhibit 56,
but instead “reviewed” Duvall’s file regarding State’s Exhibit 56 for the sole
purpose of preparing to testify.
{¶ 91} Though he had nothing to do with preparing the DNA report that
became State’s Exhibit 56, Wiechman testified about its contents. His testimony
regarding State’s Exhibit 56 was largely a recitation of Duvall’s report:
{¶ 92} “Q: And showing you what’s been marked as State’s Exhibit 56,
can you identify that for us?
{¶ 93} “A: Yes. This appears to be a copy of Jennifer Duvall’s report
regarding this case.
{¶ 94} “Q: And does that contain the findings and conclusions that you
have testified to thus far?
{¶ 95} “A: Yes, it does.
{¶ 96} “Q: And are those findings and conclusions determinations you
would hold to a reasonable degree of scientific certainty?
{¶ 97} “A: Yes.”
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SUPREME COURT OF OHIO
{¶ 98} With this factual background established, the import of the
majority’s holding becomes clearer. The majority holds that a DNA report can be
admitted into evidence without the person who produced it having to testify about
it. Under the majority’s ruling, a defendant’s rights under the Confrontation
Clause are not affected when one DNA expert testifies as to the contents of
another DNA expert’s DNA report, even when the nontestifying DNA expert’s
report is admitted into evidence based upon the testifying witness’s testimony.
{¶ 99} In Crawford v. Washington, 541 U.S. at 53-54, 124 S.Ct. 1354,
158 L.Ed.2d 177, the Supreme Court of the United States stated that the
Confrontation Clause bars “admission of testimonial statements of a witness who
did not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.”
{¶ 100} The court in Crawford left “for another day any effort to spell
out a comprehensive definition of ‘testimonial.’ ” Crawford, 541 U.S. at 68, 124
S.Ct. 1354, 158 L.Ed.2d 177. That day has yet to arrive, but the court in
Crawford noted “various formulations” of the “core class” of testimonial
statements, without adopting one as definitive: (1) ex parte in-court testimony or
its equivalent, such as affidavits, custodial interrogations, prior testimony for
which the defendant had no opportunity to cross-examine, or other pretrial
statements that declarants would reasonably expect to be used in a prosecution,
(2) extrajudicial statements in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions, or (3) statements made under
circumstances that would lead an objective witness to a reasonable belief that the
statement could be used at a later trial. Crawford, 541 U.S. at 51-52, 124 S.Ct.
1354, 158 L.Ed.2d 177.
{¶ 101} In State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 855
N.E.2d 834, this court adopted as definitive the third of the formulations
discussed by the Crawford court:
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January Term, 2007
{¶ 102} “For Confrontation Clause purposes, a testimonial statement
includes one made ‘under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later trial.’
” Id. at paragraph one of the syllabus, quoting Crawford at 52, 124 S.Ct. 1354,
158 L.Ed.2d 177.
{¶ 103} The majority tries to ignore Stahl and its first syllabus paragraph,
adopting curious reasoning. The majority writes that “Stahl has no application
here because Stahl involved the testimonial nature of actual oral ‘statements’ of a
declarant and did not involve records of scientific tests or the business-records
exception to the hearsay rule.” Majority opinion at ¶ 95. The majority acts as if
non-oral statements are not “actual.” Are nonoral statements pretend? The Stahl
syllabus is not self-limiting to “actual oral statements” – it applies to
“statements.” Evid.R. 801(A) defines a “statement” as “(1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is intended by the person as an
assertion.” The written assertions in State’s Exhibit 56 are most certainly
statements, and Stahl most certainly applies to those statements. Stahl cannot be
ignored in this case.
{¶ 104} The majority instead attempts to rely on State v. Craig, 110 Ohio
St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, a case that predates Stahl. In Craig,
this court considered the admissibility of an autopsy report prepared by a doctor
who was no longer affiliated with the medical-examiner’s office. In Craig, Dr.
Lisa Kohler, the Summit County medical examiner at the time of the trial,
testified about a murder victim’s autopsy even though another doctor, who had
retired prior to the trial, had actually performed the autopsy. Dr. Kohler testified
that she had reviewed all the materials prepared in connection with the autopsy,
but the defense objected to her testimony, arguing that she lacked firsthand
knowledge of the autopsy. Id. at ¶ 73. Dr. Kohler provided her own expert
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SUPREME COURT OF OHIO
testimony on the cause and time of death, and the trial court admitted the autopsy
report into evidence.
{¶ 105} This court held in Craig that Kohler’s testimony and the
admission of the autopsy report into evidence did not violate the defendant’s
rights under the Confrontation Clause. The court adopted “the majority view
under Crawford * * * that autopsy records are admissible as nontestimonial
business records,” and held that “Dr. Kohler’s expert testimony about the autopsy
findings, the test results, and her opinion about the cause of death did not violate
Craig’s confrontation rights.” Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853
N.E.2d 621, ¶ 88.
{¶ 106} We called the autopsy report in Craig “the ‘quintessential
business record’ ” and found that “ ‘such records or statements are not testimonial
in nature because they are prepared in the ordinary course of regularly conducted
business and are “by their nature” not prepared for litigation.’ ” Id. at ¶ 82,
quoting People v. Durio (2005), 7 Misc.3d 729, 734, 794 N.Y.S.2d 863.
Although this court used the term “business records,” our determination that the
autopsy report was nontestimonial was the key holding in Craig.
{¶ 107} The Confrontation Clause “applies to ‘witnesses’ against the
accused.” (Emphasis added.) Crawford, 541 U.S. at 51, 124 S.Ct. 1354, 158
L.Ed.2d 177. A coroner is concerned with how the decedent died rather than who
may have killed him. Thus, the coroner is not a “witness” against a specific
person when he or she prepares a report from an autopsy. A coroner’s report is
not done at the behest of the prosecution in preparation for litigation; it is done
pursuant to statute. See R.C. 313.131(B).
{¶ 108} That is in contrast with the DNA reports in this case. BCI is an
arm of law enforcement, a statutorily created bureau within the office of the
attorney general. R.C. 109.51. BCI is called upon by the General Assembly to
“aid law enforcement officers in solving crimes and controlling criminal activity.”
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January Term, 2007
R.C. 109.52. The lab work in this case was performed at the behest of the
prosecutor. Lab personnel interacted with the prosecutor’s office regarding how
to proceed with the case. In performing the tests, lab personnel were attempting
to prove the involvement of Crager. Among the items tested were Crager’s
articles of clothing. The lab personnel objectively had to believe that their
findings would be used at trial against a known defendant. That they were
performing their normal business activities in producing the reports does not
make their reports nontestimonial. The reports were prepared in anticipation of
litigation and are thus testimonial under Stahl.
{¶ 109} Whether evidence fits or does not fit into a hearsay exception
such as the business-records exception is not relevant for Confrontation Clause
purposes. The key question is whether the evidence is testimonial, that is,
whether an objective witness would reasonably believe that a statement would be
used at trial. A business record from a telephone company does not require an
opportunity for cross-examination, because those records are not generated in
order to be used in criminal prosecutions. They do not implicate the
Confrontation Clause not because of the label “business records” but because of
their character. To label something a business record when it catalogues the
activity of an entity like BCI, whose business is analyzing evidence in pursuit of
convictions, does not remove that record from the purview of the Confrontation
Clause. “When a laboratory report is created for the purpose of prosecuting a
criminal defendant, * * * it is testimonial.” State v. March (Mo.2007), 216
S.W.3d 663, 667. In March, the court found that the Confrontation Clause was
violated when the analyst who identified a substance as cocaine in a drug case did
not testify regarding his report. The prosecution instead called a records
custodian to testify about the report. The court in State v. Caulfield (Minn.2006),
722 N.W.2d 304, similarly held that a drug report prepared by a bureau of
criminal investigations was testimonial. In Las Vegas v. Walsh (2005), 121 Nev.
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899, 124 P.3d 203, the court held that an affidavit prepared for use at trial is
testimonial. That case involved an affidavit from a nurse who drew blood from a
defendant for a blood-alcohol test.
{¶ 110} Finding that DNA reports are testimonial in this case would not
create an unnecessary practical hardship for the state in future cases. Although
the reports admitted into evidence in this case contained the signature of Duvall
alone, the practical reality of a DNA analysis is that it represents the work of more
than one person. As Wiechman testified, the protocol in place at BCI required
input from two analysts and a supervisor on every DNA report. One analyst
performs the tests, a second reviews the results, and a supervisor reviews them
again. Since more than one person is responsible for the production of a DNA
report, more than one person can testify as to the contents of a report.
{¶ 111} In State v. Williams (2002), 253 Wis.2d 99, 644 N.W.2d 919, the
Wisconsin Supreme Court considered the trial court’s admission of testimony
regarding lab-test results indicating that a substance the defendant possessed was
cocaine. The analyst who conducted the tests determining that the substance was
cocaine did not testify, but a unit leader in the drug-identification section of the
crime lab who had performed the peer review of those tests did testify. The court
held that “the presence and availability for cross-examination of a highly qualified
witness, who is familiar with the procedures at hand, supervises or reviews the
work of the testing analyst, and renders her own expert opinion is sufficient to
protect a defendant’s right to confrontation, despite the fact that the expert was
not the person who performed the mechanics of the original tests.” Williams at
114, 644 N.W.2d 919.
{¶ 112} To satisfy the defendant’s confrontation rights, the testifying
witness must be actively involved in the preparation of the report he is testifying
about:
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{¶ 113} “The right to confrontation is not satisfied when the government
produces a witness who does nothing but summarize out-of-court statements and
opinions made by others. [United States v. Lawson (C.A.7, 1981), 653 F.2d 299,
302].
{¶ 114} “The critical point illustrated by Lawson is the distinction
between an expert who forms an opinion based in part on the work of others and
an expert who merely summarizes the work of others. In short, one expert cannot
act as a mere conduit for the opinion of another.” Williams, 253 Wis.2d at 113,
644 N.W.2d 919.
{¶ 115} Here, Wiechman played no role in the development of the DNA
analysis introduced as State’s Exhibit 56. He was not the lead analyst, he did not
perform the technical review, and he did not perform a supervisory role. Had he
filled any of those roles for State’s Exhibit 56, he could have testified and not
affected Crager’s rights under the Confrontation Clause.
{¶ 116} The majority states that had Duvall testified instead of
Wiechman, her testimony would have been “very similar, if not identical, to
Wiechman’s.” Certainly, Wiechman was very familiar with reports like State’s
Exhibit 56, which are routinely produced by respected laboratories every day.
But courts must take care not to assume reliability, and thus admissibility, based
upon the source of the report: “Dispensing with confrontation because testimony
is obviously reliable is akin to dispensing with jury trial because a defendant is
obviously guilty. This is not what the Sixth Amendment prescribes.” Crawford,
541 U.S. at 62, 124 S.Ct. 1354, 158 L.Ed.2d 177. A focus on presumed reliability
of reports is a remnant of Roberts. As the court said in Crawford:
{¶ 117} “To be sure, the Clause’s ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands,
not that evidence be reliable, but that reliability be assessed in a particular
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manner: by testing in the crucible of cross-examination.” Id. at 61, 124 S.Ct.
1354, 158 L.Ed.2d 177.
{¶ 118} The lab report conclusively identified Boyd’s blood on Crager’s
shirt. That report was admitted into evidence. That report was not Wiechman’s
work, and the report does not become admissible simply because Wiechman read
from it: “[W]e do not think it conceivable that the protections of the
Confrontation Clause can readily be evaded by having a note-taking policeman
recite the unsworn hearsay testimony of the declarant, instead of having the
declarant sign a deposition.” (Emphasis sic.) Davis v. Washington (2006), 547
U.S. 813, ___, 126 S.Ct. 2266, 2276, 165 L.Ed.2d 224.
{¶ 119} The majority makes much of the California Supreme Court’s
holding in People v. Geier (2007), 41 Cal.4th 555, 61 Cal.Rptr.3d 580, 161 P.3d
104. Geier differs from this case in important aspects. First, the California
Supreme Court is not duty-bound to follow this court’s precedent, specifically this
court’s recent syllabus holding in Stahl that “[f]or Confrontation Clause purposes,
a testimonial statement includes one made ‘under circumstances which would
lead an objective witness reasonably to believe that the statement would be
available for use at a later trial.’ ” Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482,
855 N.E.2d 834, at paragraph one of the syllabus, quoting Crawford, 541 U.S. at
52, 124 S.Ct. 1354, 158 L.Ed.2d 177.
{¶ 120} Second, Geier is the result of an entirely different factual
scenario. In Geier, Dr. Cotton, the testifying witness, was a laboratory director
for Cellmark, “a private, for-profit company that performs DNA testing in
paternity and criminal cases.” Id. at 594, 61 Cal.Rptr.3d 580, 161 P.3d 104.
Cotton did not conduct the DNA analysis herself, but was the supervisor of the
person who analyzed the DNA samples, and Cotton cosigned the DNA report as
well as two follow-up letters to the law-enforcement agency involved in the case.
Id. at 596, 61 Cal.Rptr.3d 580, 161 P.3d 104. Further, the Geier court relied on
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January Term, 2007
the fact that the match found between the defendant’s DNA and DNA taken from
the victim – that is, the core accusation against the defendant — was the work of
Cotton, not the analyst:
{¶ 121} “[T]o the extent [that the analyst’s] notes, forms and report
merely recount the procedures she used to analyze the DNA samples, they are not
themselves accusatory, as DNA analysis can lead to either incriminatory or
exculpatory results. * * * [T]he accusatory opinions in this case – that defendant’s
DNA matched that taken from the victim’s vagina and that such a result was very
unlikely unless defendant was the donor – were reached and conveyed not
through the nontestifying technician’s laboratory notes and report, but by the
testifying witness, Dr. Cotton.” Id. at 607, 61 Cal.Rptr.3d 580, 161 P.3d 104.
{¶ 122} In contrast, the trial court here admitted the DNA report prepared
by the nontestifying witness, Duvall, and that report contained the damning
accusatory opinion that Boyd’s blood was on Crager’s shirt. This case is thus
entirely factually distinguishable from Geier.
{¶ 123} This case also differs from another case cited by the majority,
State v. Forte (2006), 360 N.C. 427, 629 S.E.2d 137, which presents a “cold case”
scenario not present in this case. In Forte, DNA from victims of an unknown
assailant was collected and analyzed in 1990 by a State Bureau of Investigation
agent, D.J. Spittle. In 2001, the defendant’s DNA, recorded in a database during
the 1990s, was matched with the DNA Spittle had analyzed in 1990. Spittle was
unavailable to testify at the defendant’s trial, but his supervisor introduced
Spittle’s reports into evidence. The Forte court found that the reports, containing
the results of Spittle's objective analysis of the evidence, along with routine chain
of custody information, “[did] not bear witness against [the] defendant.” Forte,
360 N.C. at 435, 629 S.E.2d 137. The court found that “[a]lthough * * * the
reports were prepared with the understanding that eventual use in court was
possible or even probable, they were not prepared exclusively for trial and Agent
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Spittle had no interest in the outcome of any trial in which the records might be
used.” Id. Here, unlike in Forte, the DNA report was created for the purpose of
prosecuting a known defendant.
{¶ 124} Since Wiechman was involved in no way in the preparation of
State’s Exhibit 56, and since neither the actual preparer, nor the technical
reviewer, nor the supervisor testified, Crager was not able to conduct a
meaningful cross-examination of a person responsible for the preparation of the
report that was ultimately admitted into evidence. Thus, Crager’s rights under the
Confrontation Clause were violated.
MOYER, C.J., concurs in the foregoing opinion.
__________________
Jim Slagle, Marion County Prosecuting Attorney, for appellant.
Collins & Lowther, L.P.A., and Kevin P. Collins, for appellee.
Marc Dann, Attorney General, Elise Porter, Acting State Solicitor, and
Stephen P. Carney, Deputy Solicitor, urging reversal for amicus curiae Attorney
General of Ohio.
William F. Schenck and Elizabeth A. Ellis, urging reversal for amicus
curiae Ohio Prosecuting Attorneys Association.
Eric J. Allen, urging affirmance for amicus curiae Ohio Association of
Criminal Defense Lawyers.
______________________
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