SJC Reverses Conviction Based on Improper DNA Evidence Testimony

August 20, 2014
By Parker Scheer LLP on August 20, 2014 4:06 PM |

The Massachusetts Supreme Judicial Court (SJC) recently reversed a defendant's conviction and remanded the case for a new trial due to the improper admission of expert testimony regarding DNA evidence. The SJC concluded that an opinion regarding the results of DNA testing is admissible only where the defendant has a meaningful opportunity to cross-examine the expert witness about the reliability of the underlying data produced by such testing.

In Commonwealth v. Tassone, a superior court jury convicted the defendant of unarmed robbery and assault and battery. The defendant had been arrested in connection with the robbery of a small variety store in Pittsfield, MA. The defendant was the allegedly the only customer in the store at the time of the robbery. It was alleged that the defendant went to the counter to purchase an item, and when the store manager opened the register door, the defendant reached into the register to take the money. A fight ensued, ending with the manager on the floor and the defendant fleeing with $350. When police arrived at the scene, they recovered a pair of eyeglasses on the floor that did not belong to the store manager.

After the defendant's arrest, a police officer used a buccal swab to obtain a saliva sample, which was sent to the State police crime laboratory. The eyeglasses that were found at the crime scene were also tested. A State police crime laboratory chemist swabbed areas of the eyeglasses that would likely come into contact with the wearer's skin and sent the swab to a Cellmark laboratory for further DNA testing. At the defendant's trial, no one from the Cellmark laboratory testified regarding the actual testing of that swab or the generation of a DNA profile from that swab. Instead, only a State police crime laboratory chemist testified that she performed an "independent review" of the DNA profile from the eyeglasses swab and the DNA profile of the defendant's saliva swab, concluding that the two profiles matched.

After a jury convicted him, the defendant appealed, arguing that the State chemist's expert opinion was improperly admitted into evidence. However, the Appeals Court rejected his argument, holding that the State chemist's testimony about the Cellmark chemist's testing on the eyeglasses was an assumption, and not hearsay. Additionally, the Appeals Court reasoned that even if the State chemist's testimony about the Cellmark chemist's testing had been admitted for its truth, the DNA report generated by Cellmark from the eyeglasses swab was not prepared for the primary purpose of accusing a targeted individual, and thus did not violate the defendant's right to confront his accuser.

The SJC disagreed with this justification, noting that, notwithstanding any constitutional issues, the testimony was not admissible under Massachusetts's common law rules of evidence. Under those rules, the defendant must have a meaningful opportunity to cross-examine the State chemist about her opinion and the reliability of the facts or data that underlie that opinion. The Court reasoned that "where a DNA expert offers an opinion regarding a DNA match, a meaningful opportunity for cross-examination means that a defendant must have the opportunity substantively to explore the risk of evidence being mishandled or mislabeled, or of data being fabricated or manipulated, and...whether the expert's opinion is vulnerable to these risks."

The SJC held that the defendant did not have a meaningful opportunity to cross-examine the State chemist regarding Cellmark's procedures and protocols, because the State chemist was not employed by Cellmark, and because the prosecution failed to call a Cellmark employee as an expert witness. Although the SJC recognized that the non-DNA evidence against the defendant was strong, the justices could not say with confidence that the admission of the State chemist's testimony did not have even a slight effect on the jury and its verdict. Accordingly, the SJC concluded that the admission of the State chemist's testimony regarding the DNA evidence was prejudicial error, and reversed the defendant's conviction.