In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned.
– NY DA’s amicus brief in Williams v. Illinois
Yes, we can see it now. Every prosecutor’s opening will be: “Ladies & Gentlemen, we couldn’t do DNA testing because it would mean calling too many witnesses. Therefore, we’re relying solely on eyewitness identification, the reliability of which is often questioned.”
Prosecutors have latched onto DNA as the infallible, omniscient crime-detector of detective stories. “Ah, Watson, this hair could only have come from a left-handed midget recently arrived from Borneo.”
No question DNA beats the cop-in-a-labcoat pseudo-sciences, like fingerprinting (“Based on my training and experience, I’m 100% certain that this smudgy mark is an exact match to the defendant”), or toolmark comparison (“Based on my lifetime of peering at bullets through a microscope, I can tell that this fragment lodged in the wall could only have come from the defendant’s gun”).
But just because DNA is objective science doesn’t mean you can take lab results on faith. Arithmetic is objective, but you’d better check your restaurant bill. The joint amicus brief of the DA and the supposedly independent NY Medical Examiner’s Office insists that their lab procedures should be immune from that pesky Confrontation Clause. Long after the U.S. Supreme Court decided otherwise, they still get away with having some smooth-talking P.R. type testify at trial instead of the actual analysts (downgraded to “technicians” in the brief, apparently to show how superfluous their testimony would be). Here’s a typical NY trial:
DA: The People proffer Little Miss Muffet from the NY Medical Examiner’s Office as an expert in Science.
Defense: No objection.
DA: Miss Muffet, please explain to the jury what DNA is.
LMM: You get one from your mother and one from your father and the chances of two people having the same DNA profile is one in a gazillion. There are 40 trillion bazillion planets in the Universe and if each one had the population of Earth –
Defense: Objection, she’s not an astronomer.
Court: Overruled. Facts relied on by experts are reliable, otherwise they wouldn’t rely on them. People’s experts, that is.
DA: Miss Muffet, explain how you matched the crime scene sample to the defendant’s DNA.
LMM: Everybody in our laboratory is highly trained, we have strict protocols that we follow perfectly. We never forget to change our gloves and never get anything mixed up.
DA: No further questions.
Defense: Were you the one who received the complainant’s clothing from the police?
LMM: No, that was Criminalist Glutbaum, but she’s highly trained, never forgets to change her gloves and never gets anything mixed up.
Defense: Are you the one who inspected the clothing for precious bodily fluids?
LMM: No, that was Criminalist Floo, but he’s highly trained, never forgets to change –
Defense: But you were the one who decided the spots were semen?
LMM: No, that was Igor from the cafeteria and he ought to know.
Defense: And how did you test for DNA?
LMM: Somebody or other generated an electronic diagram showing lots and lots of peaks and eliminated all the ones that didn’t match the defendant.
Defense: How did they decide which ones to eliminate?
LMM: By being highly trained and never forgetting –
Defense: You mean you had nothing to do with this test at all?
People: Objection! She’s familiar with the procedures, she can testify about what others did in the regular course of business.
Imagine if the cops could do that:
Detective Floo: We all go to the police academy and follow strict protocols and never make mistakes.
DA: We offer into evidence P.O. Glutbaum’s report of the defendant’s glassy breath and smelly eyes when he was stopped in his car.
Defense: Objection! You can’t offer it through Detective Floo. He wasn’t even there!
Court: Overruled. Detective Floo is familiar with police procedures.
DA: And we offer this machine-generated test result showing the defendant’s blood alcohol level.
Defense: Objection! Detective Floo didn’t perform the test! Says here it was done by Igor from the cafeteria.
Court: What do you want, the People should call every officer in the precinct?
And that’s the DA’s whole argument. Heavens to Betsy, if they have to call every lab analyst, who’s going to tend to the cyclotron? Well, there’s nothing about DNA testing that requires 12 analysts. But Igor may not testify so well – it needs a trained professional witness like Miss Muffet to keep the jury awake.
But the Confrontation Clause, as brought down from Mt. Sinai by Justice Scalia, says everybody performing a test for the purpose of a criminal prosecution is a witness against the defendant. The analyst who did the drug test, the cop who operated the Breathalyzer have to testify. How ironic that, because DNA is more complicated it should be confrontation-free.
Thanx and a tip o’ the hat to Professor Jeffrey L. Fisher’s NY Times Op Ed piece of 12/2.
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