U.S. v. Katso, 74 M.J. 273

First Principles: Constitutional Matters: Confrontation

1. in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion
2. the Sixth Amendment prohibits the admission of testimonial statements of a witness who did not appear at trial, unless the witness is unavailable to testify, and the accused had had a prior opportunity for cross-examination
3. the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused; the Confrontation Clause thus protects an accused by excluding the introduction of hearsay that is testimonial, the equivalent of an ex parte examination
4. determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment
5. for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant
6. even when an expert relies in part upon statements by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion; on the one hand, experts may not act as a conduit for repeating testimonial hearsay, circumventing the Sixth Amendment by acting as a transmitter instead of communicating an independent judgment; on the other hand, an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; experts may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions

Military Justice Personnel: Military Judge: Duties and Responsibilities

1. for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant

Military Justice Personnel: Military Judge: Discretion

1. in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion

Core Criminal Law Subjects: Evidence: Expert / Scientific Testimony

1. in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion
2. determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment
3. even when an expert relies in part upon statements by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion; on the one hand, experts may not act as a conduit for repeating testimonial hearsay, circumventing the Sixth Amendment by acting as a transmitter instead of communicating an independent judgment; on the other hand, an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; experts may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions

Core Criminal Law Subjects: Witnesses: Confrontation

1. in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion
2. the Sixth Amendment prohibits the admission of testimonial statements of a witness who did not appear at trial, unless the witness is unavailable to testify, and the accused had had a prior opportunity for cross-examination
3. the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused; the Confrontation Clause thus protects an accused by excluding the introduction of hearsay that is testimonial, the equivalent of an ex parte examination
4. determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment
5. for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant
6. even when an expert relies in part upon statements by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion; on the one hand, experts may not act as a conduit for repeating testimonial hearsay, circumventing the Sixth Amendment by acting as a transmitter instead of communicating an independent judgment; on the other hand, an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; experts may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions

Core Criminal Law Subjects: Witnesses: Experts

1. in this case, the testimony of the government’s forensic DNA expert witness who did not conduct the DNA analysis of the sexual assault kits, but rather performed a technical review of the analysis performed by another expert, did not violate the accused’s right to confrontation, and the military judge’s denial of the accused’s motion to exclude the expert’s testimony was not an abuse of discretion, where the expert’s personal knowledge regarding the derivation of the evidence at issue made him neither a surrogate expert, nor a mere conduit for the testimonial statements of another; here, the expert conducted a thorough review of the entire case file, including the documents submitted with the evidence, the tests performed on the evidentiary samples, and the quality control measures; he personally compared the DNA profiles from the evidentiary samples to the DNA profiles from the known samples, reran the statistical analysis, and formulated his own carefully considered conclusions; much of the data underlying his opinion was not testimonial, and, assuming arguendo that the report prepared for his technical review was testimonial, the expert did not act as a mere conduit for the report; in sum, the expert presented his own expert opinion at trial, which he formed as a result of his independent review, and clearly conveyed the basis for his conclusions; that he did not himself perform aspects of the tests goes to the weight, rather than to the admissibility of his opinion
2. determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment
3. even when an expert relies in part upon statements by an out-of-court declarant, the admissibility of the expert’s opinion hinges on the degree of independent analysis the expert undertook in order to arrive at that opinion; on the one hand, experts may not act as a conduit for repeating testimonial hearsay, circumventing the Sixth Amendment by acting as a transmitter instead of communicating an independent judgment; on the other hand, an expert witness need not necessarily have personally performed a forensic test in order to review and interpret the results and data of that test; experts may review and rely upon the work of others, including laboratory testing conducted by others, so long as they reach their own opinions in conformance with evidentiary rules regarding expert opinions

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. whether evidence is testimonial hearsay is a question of law reviewed by an appellate court de novo
2. an appellate court reviews a military judge’s ruling on a motion to exclude evidence for an abuse of discretion, considering the evidence in the light most favorable to the prevailing party; also, an appellate court will not overturn factual findings unless they are clearly erroneous or unsupported by the record
3. determining whether an expert witness’s testimony has violated the Confrontation Clause requires asking two questions: first, did the expert’s testimony rely in some way on out-of-court statements that were themselves testimonial; second, if so, was the expert’s testimony nonetheless admissible because he reached his own conclusions based on knowledge of the underlying data and facts, such that the expert himself, not the out-of-court declarant, was the witness against the accused under the Sixth Amendment
4. for the purposes of the Confrontation Clause, a statement is testimonial if made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial; in making this determination, a court asks whether it would be reasonably foreseeable to an objective person that the purpose of any individual statement is evidentiary, considering the formality of the statement as well as the knowledge of the declarant