Kenneth Washington was convicted based on DNA records created after his arrest. He did not have the opportunity to cross-examine the analysts who tested the DNA. Yesterday the Second Circuit rejected Washington’s habeas petition, which argued that the admission of these records violated clearly established law governing the Confrontation Clause. The holding of Washington v. Griffin (Katzmann, Kearse, Livingston) (affirming Block, J., EDNY), available here, is narrow. The opinion, however, includes inaccurate dicta concerning the test for whether hearsay evidence is testimonial and thus within the purview of the Confrontation Clause.
Washington was charged with multiple felony counts in connection with three separate home invasions. At each crime scene, investigators collected DNA matching that of Washington’s profile in the New York State DNA Index. He was arrested, and a detective collected a DNA sample from him using a buccal swab. At trial, an analyst from the New York City Office of the Chief Medical Examiner (“OCME”) testified as an expert to establish that the DNA from the crime scenes matched that obtained from the buccal swab. Through this OCME expert, the government introduced into evidence an OCME case file on the buccal swab testing. The expert testified that she was not personally involved in testing the buccal swab, but that she reviewed the raw data and concluded that it contained the same DNA as that obtained from the crime scenes.
Washington argued that the admission of the buccal swab case file violated the Confrontation Clause because he did not have the opportunity to cross-examine the analysts who actually tested the swab. (He did not challenge the admission of case files on the crime scene DNA.) According to Washington, the admission of the buccal swab case file contravened Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). The panel held, however, that these cases were sufficiently distinguishable to reject Washington’s argument under AEDPA. See 28 U.S.C. § 2254(d)(1) (providing that a habeas petition may only be granted if the state court decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”). In contrast to the lab reports in Melendez-Diaz and Bullcoming, the buccal case file did not include affidavits or formal certificates clarifying that the information was testimonial in nature. The panel thus concluded that “[t]he Supreme Court has never held that the Confrontation Clause requires an opportunity to cross examine each lab analyst involved in the process of generating a DNA profile and comparing it with another, nor has it held that uncertified, unsworn notations of the sort at issue here are testimonial.” Slip op. at 30.
In a separate concurrence, Judge Katzmann urges prosecutors to avoid protracted Confrontation Clause litigation over DNA reports by ordering that a defendant’s DNA sample be collected again and re-tested under the supervision of an analyst who is prepared to testify at trial.
The panel took pains to emphasize that its “conclusion . . . is narrow,” id. at 38. The decision does not resolve whether reports like the buccal swab are in fact testimonial in nature and thus subject to the Confrontation Clause. In pursuing such claims, practitioners should take care to contest some of the dicta in Washington as inaccurate. Two particularly egregious examples are worth highlighting:
First, the panel makes heavy use of Williams v. Illinois, 567 U.S. 50 (2012), to reject Washington’s argument that the buccal swab case file is testimonial under clearly established law. Peculiarly, the panel emphasizes Justice Thomas’s solo opinion in Williams arguing that evidence cannot be testimonial if lacks the formal “solemnity” of a sworn document. See Slip op. at 29 (quoting Williams, 567 U.S. at 111 (Thomas, J., concurring). Only Justice Thomas has subscribed to this conception of the Confrontation Clause, and a majority of the Court rejected it in Davis v. Washington, 547 U.S. 813 (2006) (holding that police questioning was testimonial over Justice Thomas’s dissent on the ground that the interrogation wasn’t sufficiently formal). Fortunately, the Second Circuit has already determined that “Williams does not . . . yield a single, useful holding” with respect to whether a forensic report is testimonial. United States v. James, 712 F.3d 79, 95 (2d Cir. 2013). The panel’s treatment of Williams thus seems to conflict with Second Circuit law.
Second, the panel characterizes the Supreme Court has having declared that the Confrontation Clause “does not ‘bar every statement that satisfies the ‘primary purpose’ test” for determining whether evidence is testimonial. Slip op. at 22 (quoting Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015). As Justice Scalia pointed out in a concurring opinion, this language from the majority opinion in Clark is dicta. What’s more, Justice Scalia challenged the accuracy of this dicta. See Clark, 135 S. Ct. at 2184-85 (Scalia, J., concurring in the judgment) (“Take, for example, the opinion’s statement that the primary-purpose test is merely one of several heretofore unmentioned conditions . . .that must be satisfied before the Clause’s protections apply. That is absolutely false, and has no support in our opinions.”).
These are only two aspects of Washington‘s analysis that are troubling and unnecessary to resolve the case. Practitioners should read the opinion with a skeptical eye when addressing similar Confrontation Clause claims on direct review.