State v. Reginald Roach (068874) , 219 N.J. 58 ( 2014 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State v. Reginald Roach (A-129-11) (068874)
[NOTE: This is a companion case to State v. Julie L. Michaels, also filed today.]
Argued March 4, 2014 -- Decided August 6, 2014
LaVECCHIA, J., writing for a majority of the Court.
In this appeal, the Court considers whether defendant’s confrontation rights were violated by the testimony
of an analyst who matched defendant’s DNA profile to DNA evidence left by the perpetrator at the scene of the
offense, but who was not the analyst who performed the testing procedures that provided the basis for the DNA
profile developed from the perpetrator’s evidence.
On November 5, 2005, a masked man robbed and raped sixty-four-year-old H.H. while pointing a sharp
object at her neck. H.H. was taken to a Rape Crisis Center where a nurse performed a forensic examination and
prepared a sexual assault kit. Vaginal, anal, buccal, and fingernail swabs were taken from H.H., dry secretions were
collected from her inner thighs, and slides were prepared from the swabs. Those samples, along with H.H.’s clothes,
were sent to the State Police Forensic Laboratory (State Lab) for analysis. Charles Williams, a forensic scientist in
the Biochemistry Department, tested the items in the sexual assault kit for blood and sperm. The slides tested
positive. The specimens were sent to the State Lab’s DNA Department along with H.H.’s buccal swab.
The police identified E.A. as a suspect and sent his buccal swap to the State Lab. On November 16, 2005,
Linnea Schiffner, a forensic scientist with the DNA Department, received H.H.’s sexual assault kit and the buccal
swabs taken from H.H. and E.A. Schiffner was able to create a full DNA profile for the perpetrator from samples
taken from H.H., as well as profiles for H.H. and E.A. from their respective buccal swabs. She concluded that
E.A.’s DNA profile did not match that of the male contributor to the samples taken from H.H. Schiffner prepared a
report, dated December 7, 2005, listing the samples that she had tested, setting forth an allele table listing the DNA
profiles, and stating her conclusion that E.A.’s DNA profile did not match that of the perpetrator.
Subsequently, defendant was identified as a suspect, and, when police officers stopped him, they found a
pair of black gloves and a small sharpened stick. Defendant’s buccal swab was sent to the State Lab for analysis.
Because Schiffner had relocated to Wisconsin for reasons the trial court found unrelated to job performance, the
H.H. case file and defendant’s buccal swab were assigned to Jennifer Banaag, another forensic scientist in the DNA
Department. Banaag analyzed defendant’s buccal swab and generated a full DNA profile for defendant. She then
compared defendant’s DNA profile with the profiles generated from the specimens taken from H.H.’s inner thighs,
and concluded that defendant was the source of the DNA on H.H.’s samples. As part of this process, Banaag
reviewed Schiffner’s report and all the underlying data, as well as all files relating to the case. Banaag checked
“everything” from the initials and dates on each page to the “data calls” Schiffner had made in generating the
profiles. Banaag issued a signed report, dated February 24, 2006, stating her conclusion that defendant was the
source of the DNA found in the samples taken from H.H., and containing an allele table with the DNA profile she
had generated for defendant and the DNA profiles reported by Schiffner. Defendant was charged with aggravated
sexual assault, burglary, and other offenses related to the attack on H.H.
The key issue at trial was identity, which turned on the DNA analysis. Williams and Banaag testified for
the State, but Schiffner did not testify. Defendant objected to any testimony by Banaag about Schiffner’s analysis,
arguing that it was hearsay and violated his right to confront the analyst who had performed the tests being used
against him. The court overruled defendant’s objection. Banaag testified that she had made an “independent data
analysis for the buccal swab that [she] received, went back and reviewed Miss Schiffner’s case and made [her] own
independent conclusions.” Banaag went on to state her conclusion that “within a reasonable scientific certainty . . .
Reginald Roach is identified as the source of the DNA profile” obtained from the samples taken from H.H.
1
The jury found defendant guilty of aggravated sexual assault, burglary, and other charges, and the court
sentenced defendant to an aggregate forty-year prison term. The Appellate Division affirmed, and this Court
granted defendant’s petition for certification. State v. Roach, 211 N.J. 607 (2012).
HELD: Defendant’s confrontation rights were not violated by the testimony of the analyst who matched his DNA
profile to the profile left at the scene by the perpetrator. Defendant had the opportunity to confront the analyst who
personally reviewed and verified the correctness of the two DNA profiles that resulted in a highly significant
statistical match inculpating him as the perpetrator. In the context of testing for the purpose of establishing DNA
profiles for use in an expert’s comparison of DNA samples, a defendant’s federal and state confrontation rights are
satisfied so long as the testifying witness is qualified to perform, and did in fact perform, an independent review of
testing data and processes, rather than merely read from or vouch for another analyst’s report or conclusions.
1. The Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth
Amendment, provides an accused the right “to be confronted with the witnesses against him.” The New Jersey
Constitution provides a cognate guarantee to an accused in a criminal trial. See N.J. Const. art. I, ¶ 10. As modern
United States Supreme Court confrontation case law has explicated, the right to confront witnesses guaranteed to an
accused applies to all out-of-court statements that are “testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124
S. Ct. 1354, 1374, 158 L. Ed. 2d 177, 203 (2004). If testimonial, the statement is inadmissible unless the witness is
unavailable to testify and the defendant had had a prior opportunity for cross-examination. New Jersey’s state
confrontation jurisprudence has followed the federal approach. (pp. 22-23)
2. As explained in the Court’s companion case, State v. Michaels, __ N.J. __ (2014), also issued today, the Supreme
Court has considered Crawford’s application in three cases involving forensic reports: Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009); Bullcoming v. New Mexico, 564 U.S. __,
131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); and Williams v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L. Ed. 2d 89
(2011). In Michaels, supra, this Court examined those recent decisions and chronicled the development of
confrontation law through Williams, the most recent Supreme Court case, in which members of the Court authored
three opinions that espoused divergent analytic approaches. __ N.J. __ (slip op. at 17-37). Because a majority of the
Supreme Court failed to accept the analytic approach of the plurality opinion, this Court concluded that Williams’s
force as precedent was unclear. Id. at __ (slip op. at 43). Accordingly, in this matter, the Court determines to use
the pre-Williams Confrontation Clause holdings on forensic evidence, as it did in Michaels. (pp. 23-25)
3. In this matter, defendant modeled his challenge after Bullcoming, arguing that the opportunity to cross-examine
Banaag is an insufficient substitute for his right to confront the analyst who actually performed the testing on the
DNA evidence left by the perpetrator on the body of the victim. The Court notes at the outset that Schiffner’s report
was not introduced at trial, and thus finds that this matter differs from Bullcoming and Melendez-Diaz, where the
disputed reports were placed in evidence. That said, the Court considers defendant’s confrontation challenge with
the understanding that Schiffner’s report was integral to Banaag’s testimony, and that components of it were
incorporated in Banaag’s expert report. The Court notes, as it did in Michaels, supra, that neither Bullcoming’s
holding nor Melendez-Diaz’s requires that every analyst involved in a testing process must testify in order to satisfy
confrontation rights. __ N.J. at __ (slip op. at 44). Nor do they lead to the conclusion that in every case, no matter
the type of testing involved or the type of review conducted by the person who does testify, the primary analyst
involved in the original testing must testify to avoid a Confrontation Clause violation. Ibid. Against that backdrop,
the Court finds that defendant’s reliance on Bullcoming is unwarranted. Unlike Banaag, the testifying witness in
Bullcoming was a “surrogate” who had no connection to the report about which he testified other than being familiar
with the laboratory’s testing procedures. (pp. 25-28)
4. In reaching its conclusion, the Court draws from Justice Sotomayor’s separate opinion in Bullcoming, which
noted that the Supreme Court’s holding did not address and, therefore, did not reject, testimony by a supervisor or an
otherwise independent reviewer of data. Following that guidance, this Court held in Michaels, supra, that a
supervisor could testify about the results of the testing in a report that he authored, signed, and certified, based upon
his knowledge of the laboratory’s testing procedures and protocols generally and his training and knowledge of the
particular testing involved. __ N.J. __ (slip op. at 4, 67). The Court finds that its reasoning applies with
comparable force to the analogous circumstance of a non-supervisory co-worker or other independent reviewer, who
is trained in the testing and is knowledgeable about the laboratory’s processes and protocols, and who testifies based
2
on his or her independent review of raw data and the conclusions that he or she has drawn from that data. The Court
cautions, however, the testimony must be provided by a truly independent and qualified reviewer of the underlying
data and report, and the witness may not merely parrot the findings of another. The independent reviewer – just like
a supervisor who signs and certifies a report – must draw conclusions based on his or her own findings, and his or
her verification of the data and results must be explained on the record. (pp. 28-31).
5. The Court considers Banaag’s testimony against that backdrop and determines that Banaag sufficiently explained
how she used her scientific expertise and knowledge to independently review and analyze the graphic raw data that
was the computer-generated product of Schiffner’s testing. Although the Court finds that Banaag’s independent
interpretation of the machine-generated data converted raw data into unmistakably testimonial material subject to
the Confrontation Clause, it holds that confrontation requirements were satisfied by defendant’s ability to cross-
examine Banaag. (pp. 32-34).
6. In response to the dissenting opinion, the Court notes, as it did in Michaels, that defendant’s confrontation rights
were not sacrificed because he had the opportunity to confront Banaag on her conclusions and on the facts that she
independently reviewed, verified, and relied on in reaching those conclusions. The Court emphasizes that this is not
a case where the testifying analyst merely read from another analyst’s report. Rather, Banaag carefully reviewed
and analyzed all the underlying machine-generated data and formed her own conclusions about the results to which
she testified. Accordingly, the Court holds that defendant’s confrontation rights were satisfied by his opportunity to
confront Banaag on the DNA evidence used at his trial. (pp. 34-36).
The judgment of the Appellate Division is AFFIRMED.
JUSTICE ALBIN, DISSENTING, expresses the view that Schiffner’s test results were testimonial
statements that incriminated defendant and thus the Confrontation Clause does not permit Banaag, an analyst who
did not perform, participate in, or observe underlying laboratory tests, to give surrogate testimony for Schiffner, the
absent analyst who did the testing and recorded the results.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-VINA, and JUDGES
RODRÍGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion. JUSTICE
ALBIN filed a separate, dissenting opinion.
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SUPREME COURT OF NEW JERSEY
A-129 September Term 2011
068874
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD ROACH a/k/a REGINALD
W. HOLMES,
Defendant-Appellant.
Argued March 4, 2014 – Decided August 6, 2014
On certification to the Superior Court,
Appellate Division.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney).
Frank J. Ducoat, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General of New
Jersey, attorney).
JUSTICE LAVECCHIA delivered the opinion of the Court.
Defendant, Reginald Roach, was convicted by a jury of
aggravated sexual assault, burglary, and other offenses related
to the home invasion and rape of a sixty-four-year-old woman.
The issue on appeal to this Court is whether defendant’s
confrontation rights were violated because the DNA analyst who
testified at trial, and who matched the DNA profile developed
1
from defendant’s buccal swab to DNA evidence left by the
perpetrator at the scene of the offense, did not perform the
testing procedures that provided the basis for the DNA profile
developed from the perpetrator’s evidence.
At trial, the evidence from the testifying analyst
demonstrated that she had conducted her own review of the DNA
testing results obtained from samples of the sperm and blood
found on the victim after the sexual assault. The analyst
explained how she had independently reviewed the data and file
materials produced through the lab’s processes by a non-
testifying analyst who had conducted DNA testing of the
perpetrator’s blood and sperm. The testifying analyst explained
that she engaged in that independent review to satisfy herself
that she had a correct DNA profile to rely on in order to
provide an expert comparison of DNA profiles. She then detailed
how she compared the profile obtained from the other analyst’s
testing of the perpetrator’s DNA, which she had reviewed and
verified, with the profile she had obtained from her own testing
of defendant’s buccal swab after he had become a suspect in the
investigation.
As we explained in the companion case of State v. Michaels,
__ N.J. __ (2014), issued today, current Confrontation Clause
jurisprudence does not hold that the testimony of the original
person to have performed forensic testing is required in all
2
instances, regardless of the type of testing and the knowledge
and independence of review and judgment of the testifying
witness. In the context of testing for the purpose of
establishing DNA profiles for use in an expert’s comparison of
DNA samples, we conclude that a defendant’s federal and state
confrontation rights are satisfied so long as the testifying
witness is qualified to perform, and did in fact perform, an
independent review of testing data and processes, rather than
merely read from or vouch for another analyst’s report or
conclusions.
Here, the testifying analyst engaged in an independent
review of DNA testing through which she personally verified the
correctness of a DNA profile generated from the perpetrator’s
sperm before she used it in making a comparison to defendant’s
buccal swab and forming her expert conclusions. In this
setting, we hold that defendant’s confrontation rights were not
violated by her testimony. Defendant had the opportunity to
confront the analyst who personally reviewed and verified the
correctness of the two DNA profiles that resulted in a highly
significant statistical match inculpating him as the
perpetrator. We therefore affirm the judgment of the Appellate
Division.
I.
We begin with a description of the incident that led to the
3
trial, and then focus on the Confrontation Clause challenge to
the forensic evidence presented in this case. The facts as set
forth are derived from the evidence admitted at defendant’s
trial.
A.
During the night of November 5, 2005, while sleeping in the
second-floor bedroom of her North Brunswick apartment, the
victim, H.H. was awoken by a masked man pointing a sharp object
at her neck and demanding money. She led him downstairs to a
drawer where she kept cash. He took the money and then, while
still holding the object to her neck, forced her to return to
the bedroom, where he raped her. H.H. called 9-1-1 after the
perpetrator fled the scene. H.H. later described her attacker
to the police as African American, slim, soft-spoken, and taller
than she. She was unable to identify him because she had not
seen his face. She also could not identify the sharp object he
had held to her neck.
H.H. was taken to a Rape Crisis Center where a nurse
performed a forensic examination and prepared a sexual assault
kit. Vaginal, anal, buccal, and fingernail swabs were taken
from H.H., dry secretions were collected from her inner thighs,
and slides were prepared from the swabs. Those samples, along
with H.H.’s nightgown and underpants, were sent to the State
Police Forensic Laboratory (State Lab) for analysis.
4
Charles Williams, a forensic scientist in the Biochemistry
Department of the State Lab, tested the items in the sexual
assault kit for the presence of blood and sperm. The vaginal
slide tested positive for sperm, the external genital specimen
and anal swab tested positive for blood, and the dried
secretions from H.H.’s thighs tested positive for both blood and
sperm. Those specimens were sent to the DNA Department of the
State Lab along with H.H.’s buccal swab.
Shortly after the assault, the police identified as a
suspect a person to whom we will refer as E.A. A buccal swab
was obtained from him and sent to the State Lab on November 14,
2005.
B.
We digress briefly to describe generally the standard
procedures used at the State Lab to generate a DNA profile from
a biological sample. The process was explained at trial by the
State’s expert witness, Jennifer Banaag, a forensic scientist
employed in the State Lab’s DNA department.
Banaag testified that the State Lab uses a four-step
process to generate a DNA profile from a sample: (1)
extraction, which involves placing a small piece of the sample
in a test tube with chemical reagents that liberate the DNA; (2)
quantification, which is done to determine the amount of DNA in
the sample; (3) polymerase chain reaction amplification, in
5
which the DNA from the extraction phase is placed with reagents
in test tubes and heated in a “thermocycler” machine so that
thirteen key sections, or loci, of the DNA are multiplied
“billions and billions of times”; and (4) detection, in which
the multiplied DNA, along with an “allele-like ladder,” is
placed in a Genetic Analyzer machine where it travels through a
capillary tube and past a laser that reads the length of the DNA
fragments.
The Genetic Analyzer produces a machine-generated graph
with peaks that identify the lengths of the DNA fragments at
each locus, and the machine labels or “calls” the peaks on the
graph by comparing them to the ladder. The analyst can check
that the machine is operating properly by confirming that the
ladder is labeled correctly. A full DNA profile contains two
sequences or alleles for each of the thirteen loci, while an
incomplete profile may lack values at some loci. In preparing a
DNA report, the analyst copies the values called for each locus
shown on the graph produced by the Genetic Analyzer into an
allele table. The allele table contains a column for each
sample tested, enabling a reader to easily compare the DNA
profiles generated from the different samples.
According to Banaag’s trial testimony, the State Lab takes
a number of precautions when processing samples to protect the
quality and integrity of the samples and results. Specifically,
6
the lab tests its reagents before they are used; analysts wear
protective clothing such as hairnets, lab coats, and gloves; a
second analyst verifies labeling and paperwork any time a sample
is cut or transferred from one tube to another; bench tops and
equipment are cleaned with bleach and ethanol; and unknown
samples are processed separately from known samples.
C.
On November 16, 2005, Linnea Schiffner, a forensic
scientist with the DNA Department of the State Lab, received the
items from H.H.’s sexual assault kit that had tested positive
for blood or sperm, as well as the buccal swabs taken from H.H.
and E.A. Schiffner performed a differential extraction on each
specimen to separate the sperm cells from the skin cells,
creating separate “sperm-cell fraction” (SCF) and “non-sperm-
cell fraction” (NSCF) samples from each specimen. She then
analyzed the buccal swabs and the SCF and NSCF samples from each
specimen to generate DNA profiles.
Based on the analysis Schiffner performed, she was able to
create a full DNA profile for the individual who had contributed
the sperm cells to the specimens taken from H.H., as well as
profiles for H.H. and E.A. from their respective buccal swabs.
She concluded that E.A.’s DNA profile did not match that of the
male contributor to the samples taken from H.H. Schiffner
prepared a report, dated December 7, 2005. The report listed
7
the samples that Schiffner had tested, set forth an allele table
listing the DNA profiles generated for each sample by the
Genetic Analyzer, and stated Schiffner’s conclusion that E.A.
was excluded as a possible contributor to the DNA profiles from
the sperm cell fractions of the inner thigh samples taken from
H.H. Schiffner signed each page of the December 7, 2005,
report.
Several weeks after H.H.’s assault, defendant, an African
American man who lived in the apartment complex adjacent to
H.H.’s, was identified as a suspect. On December 22, 2005,
North Brunswick police officers stopped defendant in the parking
lot of his apartment complex and searched him, finding a pair of
black gloves, keys, a lighter, a crack pipe, and a small
sharpened stick in his pocket. The officers obtained
defendant’s fingerprints and a buccal swab, and sent the buccal
swab to the State Lab for analysis.
Because Schiffner had relocated to Wisconsin, the H.H. case
file and defendant’s buccal swab were assigned to Jennifer
Banaag, another forensic scientist in the DNA Department, who
issued a report dated February 24, 2006. Banaag analyzed the
DNA from defendant’s buccal swab using the lab’s standard
procedures and generated a full DNA profile for defendant.
Banaag compared the profile she had generated from defendant’s
buccal swab with the profiles generated from the specimens taken
8
from H.H.’s inner thighs, and concluded that, within a
reasonable degree of scientific certainty, defendant was the
source of the DNA in the samples taken from H.H. Based on her
statistical calculations, Banaag determined that the DNA profile
found in those samples occurs in only one in approximately 1.3
quintillion African Americans.
Banaag reviewed Schiffner’s report and all the underlying
data generated by Schiffner’s testing procedures, as well as all
files relating to the case. As part of this review, Banaag
testified that she checked “everything” from the initials and
dates on the pages to the “data calls” made by Schiffner in
generating the profiles that she reported. Thus, Banaag’s
review included reaching her own conclusions as to the
correctness of the value called for each locus used in creating
the allele table. Essentially, through her review she verified
the allele table for the sample that Schiffner had tested.
Banaag prepared a signed report containing an allele table with
the DNA profile she had generated from defendant’s buccal swab
and the DNA profiles reported by Schiffner for the samples taken
from H.H. The report stated Banaag’s conclusion that defendant
was the source of the DNA found in the samples taken from H.H.
after the assault.
D.
On March 2, 2006, defendant was charged with second-degree
9
burglary, N.J.S.A. 2C:18-2 (count one); third-degree criminal
restraint, N.J.S.A. 2C:13-2 (count two); first-degree robbery,
N.J.S.A. 2C:15-1 (count three); first-degree aggravated sexual
assault, N.J.S.A. 2C:14-2(a)(4) (count four); first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count five);
second-degree sexual assault, N.J.S.A. 2C:14-2(c) (count six);
third-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(d) (count seven); two counts of fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (counts
eight and nine); and fourth-degree resisting arrest, N.J.S.A.
2C:29-2 (count ten).
At defendant’s trial before a jury in January 2007, the key
issue was identity, which turned on the DNA analysis performed
at the State Lab because H.H. could not identify her attacker
and no fingerprints had been found at the crime scene.
In respect of the DNA evidence, the State presented the
testimony of two expert witnesses: Williams, who had tested the
samples from the sexual assault kit for blood and sperm, and
Banaag, who had created a DNA profile from defendant’s buccal
swab and compared it to the profiles generated by Schiffner from
the samples taken from H.H., which Banaag had verified based on
her independent review of that data. The State also presented
the testimony of the nurse who had examined H.H. at the sexual
assault crisis center and had collected the samples that were
10
sent to the State Lab. Schiffner did not testify.
It is Banaag’s testimony that gives rise to defendant’s
claim of a violation of his confrontation rights.
When the State called Banaag, defendant objected to any
testimony by Banaag about the analysis performed by Schiffner.
Defendant argued that testimony by Banaag about tests performed
by Schiffner was hearsay and violated defendant’s right to
confront the analyst who had performed the tests being used
against him. The State argued that Banaag, as an expert, had
properly relied on Schiffner’s work in performing her own
independent analysis, and that defendant had the opportunity to
subpoena Schiffner if he chose to do so. Accepting the State’s
representation that Schiffner’s departure from employment at the
State Lab had not been due to a termination for incompetence,
the court overruled defendant’s objection and allowed Banaag’s
testimony.
E.
Banaag began by describing her duties at the State Lab,
discussing the lab’s accreditation, explaining the basic
principles of DNA analysis, and describing the testing
methodologies used at the State Lab. Banaag stated that she had
followed those standard processes with defendant’s buccal swab
and explained the results of her analysis. She described the
profile she generated from defendant’s DNA sample, stating which
11
values pertained at each of the thirteen loci.
Banaag also identified Schiffner’s report when the
prosecutor showed it to her, and she discussed the work done by
Schiffner. Specifically, Banaag explained which samples
Schiffner had tested and how Schiffner had separated the sperm-
cell and non-sperm-cell fractions of those samples. Banaag
stated, “I [took] the data that I generate[d] from the buccal
swab, the DNA profile, and I compared it to any of the profiles
that were generated by Miss Schiffner when she did her analysis
of the specimens that were received for this case.” Banaag
testified, “I made [an] independent data analysis for the buccal
swab that I received, went back and reviewed Miss Schiffner’s
case and made my own independent conclusions.” Banaag then
stated that she had incorporated the DNA profile generated by
Schiffner into her report. She explained her comparison of the
profiles for the jury, stating in detail the values that she and
Schiffner had found at each locus from their respective samples.
Banaag described her review of Schiffner’s work as follows:
I would have taken Miss Schiffner’s entire
case file and gone through and reviewed
every single page in that case. I look for
anything from dating and initials and all
the pages. I also make sure all of the data
calls that she made are correct and that I
agree with them and that all of the
information that she reported out in her
report [is] accurate.
When the prosecutor asked Banaag whether she “agree[d] with
12
[Schiffner’s] results,” Banaag responded “Yes, I do.”
Banaag went on to state her conclusion that “within a
reasonable scientific certainty . . . Reginald Roach is
identified as the source of the DNA profile obtained from
specimens number 1-6-1 SCF and 1-6-2 SCF,” the sperm cell
fractions of the samples taken from H.H.’s inner thighs.
Quantifying that certainty, Banaag stated that, based on her
statistical calculations, she had determined that the DNA
profile obtained from those samples occurs in approximately one
in 1.3 quintillion African Americans.
When asked about the integrity of the samples and testing
in this case, Banaag testified that she “didn’t see any
indication that any of the samples were compromised” because “if
you just look at the data generated, the data is consistent with
either being from the victim or the suspect. There aren’t any
indications of there being a third individual in the DNA.”
Defendant’s cross-examination of Banaag focused on the
procedures used in DNA analysis generally and the possibility of
contamination of the sample during the amplification step, as
well as Banaag’s calculation of the frequency of occurrence of
the profile in the African American population and the meaning
of the ratio she had calculated. Banaag explained in detail the
process by which the profiles are generated from the data
produced by the analyzer machine:
13
[Banaag:] . . . [T]he data is then
generated with the peaks that you saw in
that one graph. [The analyzer] will
generate peaks [] based on the size of the
DNA fragments that pass through that window
. . . .
[Defense attorney:] With regard to those
peaks who determines what numbers to
attribute to any of the peaks with regard it
will be 12, 13 or, who determines that?
[Banaag:] Every run that we put through the
3100s,1 every run that’s put on the genetic
analysis has an al[l]ele like ladder that
runs with it. . . . The ladder is run with
every single 3100 run that we put on and the
ladder is sized and all of the samples that
are run through on that run are sized
compared to the ladder.
[Defense attorney:] Who does it?
[Banaag:] When we pull off the data from
the instrument we examine the ladder to make
sure all the peaks are labeled correctly and
in doing that we then look at the data that
is generated for each of the samples. That
automatically calls all of the peaks in each
of the samples as compared to the ladder so
we do make sure the ladder is called
correctly and we look at the data that’s
generated for the samples in comparison to
the ladder.
[Defense attorney:] The computer is the one
that analyzes everything and spits it out
for you?
[Banaag:] Basically it extrapolates the
sizes of the ladder and extrapolates the
sizes of the base calls for each of the
samples so we do get a printout with those
peaks on it. The al[l]ele calls are already
labeled and that’s what we use to analyze
1
3100 is the series number of the analyzer machines used by the
State Police Lab.
14
our data. Those are the peak heights and
peak calls that we use in our reports.
[Defense attorney:] If the computer is
wrong, can you fix it?
[Banaag:] Wrong in what sense?
[Defense attorney:] You say you’re
verifying the al[l]ele calls, is that
correct?
[Banaag:] That’s correct.
[Defense attorney:] So if the computer
isn’t wrong what is there to verify?
[Banaag:] Well, the only way we would be
able to tell if there was anything wrong is
if there’s something unusual with the
ladder. That’s kind of the standard that
we’re measuring all the samples by at this
point. If the ladders are correct we assume
that the calls that are made for each of the
samples is correct also and we do
performance checks on our instruments. We
have records of those performance checks.
Defense counsel did not ask Banaag any questions relating to the
specific details of how she conducted the tests on defendant’s
buccal swab or any errors she might have made while doing so.
Defendant chose not to testify on his own behalf and he
called no witnesses.
Following an eight-day trial, the jury found defendant
guilty of second-degree burglary, two counts of first-degree
aggravated sexual assault, second-degree sexual assault, and
third-degree possession of a weapon for an unlawful purpose.
Defendant was sentenced to an aggregate forty-year prison term
15
with an eighty-five percent parole disqualifier under the No
Early Release Act, N.J.S.A. 2C:43-7.2.
The Appellate Division affirmed defendant’s conviction and
sentence in an unpublished opinion dated August 1, 2011. On the
issue of whether Banaag’s testimony referencing Schiffner’s
results violated defendant’s confrontation rights, the panel
began by reviewing the United States Supreme Court’s decisions
in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305,
129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New
Mexico, 564 U.S. __, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011).2
Addressing hearsay issues first, the panel noted that
Banaag was qualified as an expert under N.J.R.E. 702 and that
under N.J.R.E. 703 she could properly rely on Schiffner’s work
as a basis for her expert opinion. Turning to confrontation
issues, the panel found that Banaag had independently reviewed
Schiffner’s work, that Banaag had determined that it was
appropriate for her to use the profile generated by Schiffner,
and that Banaag had compared that profile to the profile Banaag
herself generated from defendant’s buccal swab. The panel
concluded that Banaag was therefore not a “mere conduit” for
2
Will. v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L. Ed.
2d 89 (2012), the Supreme Court’s most recent case addressing
the Confrontation Clause in the context of testimony by
laboratory analysts, had not yet been decided at the time the
Appellate Division rendered its decision.
16
Schiffner’s analysis. The panel distinguished this case from
Melendez-Diaz and Bullcoming by noting that, even if Schiffner’s
report was testimonial, it was not entered into evidence by the
prosecution or provided to the jury during deliberations.
Quoting its decision in State v. Rehmann, 419 N.J. Super. 451,
457 (App. Div. 2011), the Appellate Division concluded that
“[a]nother expert may be called instead of the original analyst,
so long as the testifying witness ‘has made an independent
determination as to the results offered.’”
Finding no other trial error, the panel determined that the
trial court erred in sentencing by not merging defendant’s
convictions under N.J.S.A. 2C:14-2(a)(3) and N.J.S.A. 2C:14-
2(a)(4), but otherwise upheld defendant’s forty-year aggregate
sentence.
We granted defendant’s petition for certification, which
raised only Confrontation Clause issues. State v. Roach, 211
N.J. 607 (2012).
II.
A.
Before this Court, defendant argues that allowing Banaag to
testify to the results of Schiffner’s analysis violated his
confrontation rights under the Sixth Amendment.
Relying on Melendez-Diaz, supra, 557 U.S. at 311, 129 S.
Ct. at 2532, 174 L. Ed. 2d at 321-22, defendant asserts that
17
laboratory test results used to prove the elements of a crime
are testimonial and that their introduction violates the
Confrontation Clause if the scientist who performed the tests is
not subject to cross-examination. Defendant also notes that
Melendez-Diaz held that the Confrontation Clause places the
burden on the prosecution to present witnesses, and that the
ability of the defense to call a witness as part of its own case
is not an adequate substitute. Id. at 324, 129 S. Ct. at 2540,
174 L. Ed. 2d at 330.
Defendant contends that this case is substantially similar
to Bullcoming, in which the United States Supreme Court held
that introducing the results of lab tests conducted by a non-
testifying analyst through the testimony of another analyst
violated the defendant’s confrontation rights. Defendant
emphasizes that, in this case, the details of what Schiffner
said she did in creating defendant’s DNA profile were placed
before the jury through Banaag’s testimony, while Schiffner’s
absence denied defendant the opportunity to cross-examine her
methods.
Defendant asserts that none of the limitations to the
Bullcoming opinion discussed by Justice Sotomayor in her
concurrence are applicable in this case. See id. at __, 131 S.
Ct. at 2722, 180 L. Ed. 2d at 628-30 (Sotomayor, J.,
concurring). Defendant argues that Rehmann, which concerned a
18
testifying scientist who directly observed the testing
procedures, should not be extended to allow testimony by an
analyst who independently reviewed but did not observe the work
in question.
Although defendant states that Williams v. Illinois, 567
U.S. __, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012), may have
called into question the viability of the Crawford/Melendez-
Diaz/Bullcoming line of cases, he argues that the decision
should be confined to its facts. Although defendant
acknowledges the closeness of the facts in Williams to those in
his case, he notes that Williams was a bench trial while his
case was tried by a jury, and that in Williams the testifying
analyst only stated that the profiles matched whereas here
Banaag explained what Schiffner did in creating the profile and
described in detail the results that Schiffner reported.
In the alternative, defendant urges this Court to find that
Banaag’s testimony violated his confrontation rights under the
New Jersey Constitution. Citing State v. Basil, 202 N.J. 570
(2010), State ex rel. J.A., 195 N.J. 324 (2008), and State v.
Branch, 182 N.J. 338 (2005), defendant argues that this Court
has embraced a version of the “primary purpose” test that is
closer to that expressed in Justice Kagan’s dissent in Williams
than to that expressed in Justice Alito’s plurality opinion.
Defendant argues that, based on those cases, Schiffner’s
19
scientific “description of a perpetrator” should not be
admissible through Banaag’s testimony.
B.
The State argues that Banaag’s testimony did not violate
defendant’s constitutional confrontation rights. The State
first asserts that Banaag, as an expert witness, properly
considered Schiffner’s results when making her independent
determination that there was a match between the two profiles.
The State argues that neither N.J.R.E. 703 nor the Confrontation
Clause as explained by Crawford and its progeny prohibit an
expert from testifying to her own opinion, even when that
opinion is based in part on inadmissible facts or data, so long
as the underlying information is not admitted into evidence.
The State cites cases from California, Massachusetts, North
Carolina, Tennessee, Texas, and Wisconsin to support its claim
that the majority of jurisdictions have interpreted Crawford to
allow the admission of expert opinions that rely on hearsay
information, including analyses performed by other scientists.
Reviewing Melendez-Diaz and Bullcoming, the State argues
that neither requires a finding that Banaag’s testimony violated
defendant’s confrontation rights. The State points out that the
Court in Melendez-Diaz, supra, expressly stated that the
Confrontation Clause does not require testimony by everyone
“relevant in establishing the chain of custody, authenticity of
20
the sample, or accuracy of the testing device.” 557 U.S. at 311
n.1, 129 S. Ct. at 2532 n.1, 174 L. Ed. 2d at 322 n.1. The
State further notes that, unlike this case, Melendez-Diaz
involved sworn affidavits admitted into evidence without
supporting expert testimony. Id. at 308-09, 129 S. Ct. at 2531,
174 L. Ed. 2d at 320. The State cites cases from Alaska,
Arizona, Florida, Georgia, and Ohio to support its argument that
most jurisdictions have not found Confrontation Clause
violations when, as in this case, an expert testified to his or
her own conclusions based on the results of tests performed by
another analyst.
The State argues that this case is more comparable to one
of the situations Justice Sotomayor described in her concurrence
as not covered by Bullcoming, supra -- namely, a case in which
“an expert witness was asked for his independent opinion about
underlying testimonial reports that were not themselves admitted
into evidence.” 564 U.S. at __, 131 S. Ct. at 2722, 180 L. Ed.
2d at 629 (Sotomayor, J., concurring). The State also asserts
that the allele table generated by Schiffner is machine-
generated raw data, and therefore not testimonial under
Bullcoming.
The State contends that the facts of this case are
analogous to the facts of Williams, and Williams should be
controlling here. The State asserts that the distinctions
21
identified by defendant are not of constitutional significance
because the risk of jury confusion is non-existent and the
amount of detail about Schiffner’s work that was testified to is
not dispositive.
Finally, the State urges this Court to reject defendant’s
argument that the case be decided in his favor on state
constitutional grounds. The State emphasizes that we have never
interpreted Article I, Paragraph 10 more expansively than its
essentially identical federal counterpart, and that the Hunt3
factors, which outline certain considerations for determining
when to rely on the State Constitution as an independent source
of individual rights, provide no basis for doing so here.
III.
We have before us defendant’s claim of a violation of his
confrontation rights. The Sixth Amendment to the United States
Constitution, made applicable to the States through the
Fourteenth Amendment, provides an accused the right “to be
confronted with the witnesses against him.” The New Jersey
Constitution provides a cognate guarantee to an accused in a
criminal trial. See N.J. Const. art. I, ¶ 10. Our state
confrontation case law traditionally has relied on federal case
law to ensure that the two provisions provide equivalent
3
State v. Hunt, 91 N.J. 338, 364-68 (1982) (Handler, J.,
concurring).
22
protection. See State v. Miller, 170 N.J. 417, 425-26 (2002);
see also State v. Cabbell, 207 N.J. 311, 328 & n.11 (2011)
(noting interchangeability of clauses’ protections).
As modern United States Supreme Court confrontation case
law has explicated, the right to confront witnesses guaranteed
to an accused applies to all out-of-court statements that are
“testimonial.” Crawford, supra, 541 U.S. at 68, 124 S. Ct. at
1374, 158 L. Ed. 2d at 203. Our state confrontation
jurisprudence has followed the federal approach, focusing on
whether a statement is testimonial. See State v. Michaels, __
N.J. __, __ (2014) (slip op. at 41-43) (citing our adoption of
and adherence to federal “primary purpose” test for determining
whether statement is testimonial). If a statement is
testimonial, then Crawford, supra, holds that “the Sixth
Amendment demands what the common law required: unavailability
and a prior opportunity for cross-examination.” 541 U.S. at 68,
124 S. Ct. at 1374, 158 L. Ed. 2d at 203. Our decisions have
followed that analysis in confrontation cases arising post-
Crawford. See, e.g., Cabbell, supra, 207 N.J. at 328-30; J.A.,
supra, 195 N.J. at 348-51; State v. Buda, 195 N.J. 278, 304-08
(2008).
Since 2004, the Supreme Court has considered in three cases
how to apply Crawford’s holding in the context of forensic
reports: Melendez-Diaz, supra, 557 U.S. 305, 129 S. Ct. 2527,
23
174 L. Ed. 2d 314; Bullcoming, supra, 564 U.S. __, 131 S. Ct.
2705, 180 L. Ed. 2d 610; and Williams, supra, 567 U.S. __, 132
S. Ct. 2221, 183 L. Ed. 2d 89. In Michaels, supra, __ N.J. __,
a companion case issued today with this one, we examined those
recent decisions.
In Michaels, we chronicled the development of confrontation
law in United States Supreme Court decisions through the most
recent case of Williams, in which members of the Court espoused
divergent analytic approaches, even for addressing the threshold
question of whether the DNA forensic report in issue contained
testimonial statements. Id. at __ (slip op. at 17-37). We
concluded that the three opinions that were issued in Williams
took such differing approaches to determining whether the use of
forensic evidence violates the Confrontation Clause that we
could not identify a narrow rule that would have the support of
a majority of the Supreme Court. Id. at __ (slip op. at 37-43).
Moreover, four members of the Williams majority advanced a new
approach to assessing whether a forensic document should be
deemed testimonial -- an approach that deviated from the
previously established primary purpose test, which had been
adopted by our Court. Id. at __ (slip op. at 41-42). In
Michaels, we concluded that Williams’s force as precedent was
unclear due to the failure of a majority of the Court to accept
the analytic approach of the plurality opinion author, Justice
24
Alito. Id. at __ (slip op. at 43). Accordingly, Williams was
viewed as an unreliable guide for determining whether, in
respect of forensic evidence, a defendant’s confrontation rights
were violated. Ibid.
Similarly, in this matter we will apply the pre-Williams
Confrontation Clause holdings on forensic evidence, as we did in
Michaels.
IV.
Defendant argues that his confrontation rights were
violated by the forensic evidence introduced through Banaag’s
testimony. His objection is based on the premise that his
rights can only be satisfied by having the opportunity to
confront Schiffner, the analyst who conducted the DNA testing of
the semen and blood found on the body of the assaulted victim
and who was no longer working at the State Lab when testing was
required on defendant’s buccal swab or when the case came to
trial. In that respect, defendant models his argument on
Bullcoming. The opportunity to cross-examine Banaag, he
contends, is an insufficient substitute for his right to
confront the analyst who actually performed the testing on the
DNA evidence left by the perpetrator on the body of the victim.
At the outset, we note that the report prepared by Ms.
Schiffner was not introduced at trial. In that respect, this
case differs initially from Bullcoming and Melendez-Diaz, where
25
the disputed reports were placed in evidence. In Melendez-Diaz,
supra, a confrontation violation was discerned where no witness
was offered to support and be cross-examined in respect of the
statements contained in the forensic document that was admitted
into evidence. 557 U.S. at 308-09, 329, 129 S. Ct. at 2530-31,
2542, 174 L. Ed. 2d at 320, 332-33. In Bullcoming, supra, a
forensic report also was admitted into evidence, but through the
live testimony of a co-worker who did not observe or review the
work set forth in a report that he did not sign or certify. 564
U.S. at __, 131 S. Ct. at 2709-10, 180 L. Ed. 2d at 615-16.
That said, although Schiffner’s report was not introduced
into evidence, Banaag referred to that report repeatedly in her
testimony. She also incorporated allele readings contained in
the report into her own February 2006 report comparing results
for thirteen locations from defendant’s buccal swab to results
that were in the Schiffner report. Moreover, at one point in
her direct examination, Banaag was asked whether she “agreed
with” results recorded in Schiffner’s report, and she answered
in the affirmative. Thus, although Schiffner’s report was not
introduced into evidence, it was integral to Banaag’s testimony,
and components of it were incorporated in Banaag’s expert
report. Therefore, we must address whether the trial court
erred in overruling defendant’s objection to Banaag’s testimony
in light of the State’s failure to call Schiffner to testify to
26
her testing results and the report in which she summarized those
findings.
In considering this confrontation objection to Banaag’s
expert testimony, we note first, as we did in Michaels, supra,
that neither Bullcoming’s holding nor Melendez-Diaz’s requires
that every analyst involved in a testing process must testify in
order to satisfy confrontation rights. __ N.J. at __ (slip op.
at 44). Justice Sotomayor’s observations on Melendez-Diaz in
Bullcoming, supra, highlighted that point. See 564 U.S. at __
n.2, 131 S. Ct. at 2721 n.2, 180 L. Ed. 2d at 627 n.2
(Sotomayor, J., concurring); see also Williams, supra, 567 U.S.
at __ n.4, 132 S. Ct. at 2273 n.4, 183 L. Ed. 2d at 148 n.4
(Kagan, J., dissenting) (drawing same conclusion). We also
noted in Michaels, supra,
that no member of the Court except Justice
Scalia joined Section IV of Bullcoming
further suggests that all of the other
justices harbor some level of disquiet over
the necessity and practicality of rigidly
interpreting the Confrontation Clause to
compel the testimony of all persons who
handled or were involved in the forensic
testing of a sample.
[__ N.J. at __ (slip op. at 44).]
Our Michaels analysis led us to conclude further that
“neither Melendez-Diaz nor Bullcoming lead to the conclusion
that in every case, no matter the type of testing involved or
the type of review conducted by the person who does testify, the
27
primary analyst involved in the original testing must testify to
avoid a Confrontation Clause violation.” Ibid. Melendez-Diaz,
supra, addressed the circumstance of a self-admitting document.
557 U.S. at 308-09, 129 S. Ct. at 2531, 174 L. Ed. 2d at 320.
In Bullcoming, supra, the analyst, dubbed a “surrogate,” merely
recited the findings of another analyst and did not engage in
any independent assessment of the testing himself. 564 U.S. at
__, 131 S. Ct. at 2709-10, 180 L. Ed. 2d at 616. In essence,
the Bullcoming witness had no connection to the report about
which he testified other than being familiar with the
laboratory’s testing procedures. Defendant’s reliance on
Bullcoming therefore is unwarranted.
Justice Sotomayor’s noteworthy separate opinion in
Bullcoming commented on what the Court’s holding did not address
and, therefore, was not rejecting. In doing so, she referenced
both a supervisor and an otherwise independent reviewer of data:
[T]his is not a case in which the
person testifying is a supervisor, reviewer,
or someone else with a personal, albeit
limited, connection to the scientific test
at issue. . . . It would be a different
case if, for example, a supervisor who
observed an analyst conducting a test
testified about the results or a report
about such results. We need not address
what degree of involvement is sufficient
because here [the surrogate who testified]
had no involvement whatsoever in the
relevant test and report.
[Id. at __, 131 S. Ct. at 2722, 180 L. Ed.
28
 2d at 629 (Sotomayor, J., concurring).]
In Michaels, supra, drawing from that comment, we held that
a supervisor could perform his supervisory job and be the
assigned independent reviewer of lab analysts’ work, and then
testify about the results of the testing in a report that he
authored, signed, and certified. __ N.J. __ (slip op. at 4).
Our holding did not rest on any obligation of the supervisor to
have observed the testing, but it did rely on the supervisor’s
knowledge of the laboratory’s testing procedures and protocols
generally and his training and knowledge of the particular
testing involved. Id. at __ (slip op. at 4, 67). We
specifically noted that other courts have found no confrontation
violation when a supervisor, who has conducted his or her own
independent review of the data generated by other analysts,
testifies to conclusions he or she has drawn from that
independent analysis. Id. at __ (slip op. at 63-64) (citing
Marshall v. People, 309 P.3d 943, 947-48 (Colo. 2013), cert.
denied, __ U.S. __, __ S. Ct. __, 189 L. Ed. 2d 212 (2014);
Jenkins v. State, 102 So. 3d 1063, 1069 (Miss. 2012), cert.
denied, __ U.S. __, 133 S. Ct. 2856, 186 L. Ed. 2d 914 (2013);
Commonwealth v. Yohe, 79 A.3d 520, 540-41 (Pa. 2013), cert.
denied, __ U.S. __, __ S. Ct. __, 189 L. Ed. 2d 209 (2014)). In
sum, the cited examples demonstrate how numerous courts have
relied on the fact that the supervisor in question was qualified
29
and knowledgeable in the scientific testing involved, conducted
an independent review of the work done by another, and concluded
that it was reliable and correct.
Other cases specifically demonstrate that a supervisor’s
independent review of an analyst’s DNA testing results can
qualify the supervisor to testify about a report that
incorporates expert conclusions the supervisor has drawn from
comparing analysts’ results without transgressing a defendant’s
confrontation rights. See, e.g., Ware v. State, __ So. 3d __
(slip op. at 17) (Ala. 2014), cert. denied, 82 U.S.L.W. 3732
(U.S. June 23, 2014); Commonwealth v. Greineder, 984 N.E.2d 804,
815-18 (Mass.), cert. denied, __ U.S. __, 134 S. Ct. 166, 187 L.
Ed. 2d 114 (2013); State v. Lopez, 45 A.3d 1, 13-20 (R.I. 2012);
State v. Eagle, 835 N.W.2d 886, 898-99 (S.D. 2013).
While our holding in Michaels, as well as the examples
cited therein and above, permits a supervisor to testify based
on his or her independent review of raw data and conclusions
that he or she reports based on that data, the reasoning applies
with comparable force to the analogous circumstance of a co-
worker or other independent reviewer. If an independent
reviewer, who is not a supervisor but who is trained in the
testing and is knowledgeable about the laboratory’s processes
and protocols, testifies based on his or her independent review
of raw data and the conclusions that he or she has drawn from
30
that data, then it is logical to apply the reasoning from
supervisor-testimony holdings to such a case. However, the
testimony must be provided by a truly independent and qualified
reviewer of the underlying data and report, and the witness may
not merely parrot the findings of another. See United States v.
Pablo, 696 F.3d 1280, 1290-91 (10th Cir. 2012) (observing
evidence of testifying analyst’s independent review of DNA
recorded data and analytic process followed by co-analyst);
Eagle, supra, 835 N.W.2d at 902 (permitting testimony by analyst
who participated in some testing and independently reviewed and
analyzed results of others). The anti-parroting caveat avoids
repetition of the flaw that was present in Bullcoming. The
independent reviewer -- just like a supervisor who signs and
certifies a report -- must draw conclusions based on his or her
own findings, and his or her verification of the data and
results must be explained on the record. See, e.g., Lopez,
supra, 45 A.3d at 13 (emphasizing that testifying analyst
“personally reviewed and independently analyzed all the raw
data, formulated the allele table, and then articulated his own
final conclusions concerning the DNA profiles and their
corresponding matches”); see also State v. Ortiz-Zape, 743
S.E.2d 156, 164-65 (N.C. 2013) (finding no confrontation
violation where testifying expert was co-analyst who performed
lab’s technical review and who reached independent conclusions
31
based on review of cocaine substance analysis report as well as
all raw data and calibration and maintenance documentation from
testing, but did not observe testing itself), cert. denied, __
U.S. __, __ S. Ct. __, 189 L. Ed. 2d 208 (2014).
Applying that standard, we return to Banaag’s testimony.
V.
Banaag testified that she personally reviewed all the raw
data and the calls made by Schiffner. As noted earlier, with
respect to the raw data, she explained how the machine generates
a ladder against which peaks are checked.
[Banaag:] . . . [T]he data is then
generated with the peaks that you saw in
that one graph. [The analyzer] will
generate peaks [] based on the size of the
DNA fragments that pass through that window
. . . .
. . . .
[E]very run that’s put on the genetic
analysis has an al[l]ele like ladder that
runs with it. . . . The ladder is run with
every single [genetic analyzer] run that we
put on and the ladder is sized and all of
the samples that are run through on that run
are sized compared to the ladder.
[Defense Attorney:] Who does it?
[Banaag:] When we pull off the data from
the instrument we examine the ladder to make
sure all the peaks are labeled correctly and
in doing that we then look at the data that
is generated for each of the samples. That
automatically calls all of the peaks in each
of the samples as compared to the ladder so
we do make sure the ladder is called
32
correctly and we look at the data that’s
generated for the samples in comparison to
the ladder.
[Defense attorney:] The computer is the one
that analyzes everything and spits it out
for you?
[Banaag:] Basically it extrapolates the
sizes of the ladder and extrapolates the
sizes of the base calls for each of the
samples so we do get a printout with those
peaks on it. The al[l]ele calls are already
labeled and that’s what we use to analyze
our data. Those are the peak heights and
peak calls that we use in our reports.
She explained how she satisfied herself that the testing
did not disclose contamination of the sample with other DNA.
She further explained how she examined in her own review the
same peaks that generated the DNA profile in Schiffner’s report
in order to determine whether she agreed with calls used to
develop a DNA profile for the perpetrator’s sample. She also
detailed how she used thirteen specific calls in evaluating the
DNA profiles to determine the mathematical probability of more
than one person possessing the specific profile generated from
the samples.
In our judgment, Banaag’s testimony explained how she used
her scientific expertise and knowledge to independently review
and analyze the graphic raw data that was the computer-generated
product of Schiffner’s testing. While she was also asked once
whether she “agreed with” Schiffner’s results, that one question
did not eviscerate the independence of Banaag’s review or
33
undermine the detailed explanation that she provided in her
testimony of how she determined that the previously generated
profile was accurate enough for her to use when forming her
expert opinion that the DNA from defendant’s buccal swab matched
that left behind by the perpetrator.
It bears noting that it is also our judgment that Banaag’s
independent interpretation of the machine-generated data
converted raw data into unmistakably testimonial material
subject to the Confrontation Clause. See Lopez, supra, 45 A.3d
at 17-20; United States v. Summers, 666 F.3d 192, 202-03 (4th
Cir. 2011), cert. denied, __ U.S. __, 133 S. Ct. 181, 184 L. Ed.
2d 91 (2012). The subjective analysis involved in creating the
DNA profile from the machine-generated graphs marks a clear
turning point, at which the raw data becomes testimonial
material compiled in the form of an allele table that exhibits
the DNA profiles of the tested samples. See Lopez, supra, 45
A.3d at 18-19 & n.33. However, confrontation requirements were
satisfied by defendant’s ability to cross-examine Banaag on the
numerical identifiers in the allele table that she verified and
then used in rendering her expert statistical comparison of the
likelihood that more than one individual possessed the DNA
profile obtained from those samples.
No doubt, the dissent takes a different and dim view of
Banaag’s ability to satisfy defendant’s confrontation rights.
34
But, as we explained in Michaels, we do not share the view that
an independent reviewer cannot verify a machine-generated
testing process and results, satisfy herself of the reliability
of the results, and reach a conclusion based on the testimonial
facts she has made her own through that independent review. Our
conclusion in this case applies the same principles as those in
Michaels. Hence our point of disagreement with the dissent
remains the same. The dissent’s view denigrates the validity
and legitimacy of independent review in forensic science.
In addition, we note that Banaag addressed in her testimony
many of the practical concerns raised by the dissent as reasons
that cross-examination of the analyst who performed the test is
necessary. See post at __ (slip op. at 5-8). For example,
Banaag stated that she was able to ensure that the genetic
analyzer was functioning properly by reviewing the allele-like
ladder and performance check records. Supra at __ (slip op. at
15). She also noted that, if the sample had been contaminated,
there would have been indications of a third person’s DNA on the
graphs produced by the machine. Supra at __ (slip op. at 13).
We reiterate that this is not a case where the testifying
analyst merely read from another analyst’s report. Rather,
Banaag carefully reviewed and analyzed all the underlying
machine-generated data and formed her own conclusions about the
results to which she testified. In sum, we do not agree that
35
defendant’s confrontation rights are sacrificed because he had
the opportunity to confront Banaag on her conclusions and on the
facts that she independently reviewed, verified, and relied on
in reaching those conclusions.
Accordingly, we hold that defendant’s confrontation rights
were satisfied by his opportunity to confront Banaag on the DNA
evidence used at his trial.
VI.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE RABNER, JUSTICES PATTERSON and FERNANDEZ-
VINA, and JUDGES RODRÍGUEZ and CUFF (both temporarily assigned)
join in JUSTICE LaVECCHIA’s opinion. JUSTICE ALBIN filed a
separate, dissenting opinion.
36
SUPREME COURT OF NEW JERSEY
A-129 September Term 2011
068874
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD ROACH, a/k/a
REGINALD W. HOLMES,
Defendant-Appellant.
JUSTICE ALBIN, dissenting.
In this companion case to State v. Michaels, ___ N.J. ___
(2014), the majority again announces that a defendant may be
denied the opportunity to confront and cross-examine a state-
employed scientist or analyst who conducts a laboratory test
that implicates him in a crime. The majority finds that the
Confrontation Clause is satisfied if a surrogate expert from the
same laboratory -- who has not performed, participated in, or
observed the tests -- reviews the test results of the actual
analyst and passes them through to the jury. This use of a
surrogate witness to bypass the confrontation rights of the
accused does not conform with the Sixth Amendment.
For the reasons expressed in my dissent in State v.
Michaels, and for the reasons I advance here, I believe that the
majority’s adoption of the substitute-witness rule in
1
scientific-testing cases is eviscerating the principles that
animate the Confrontation Clause and is in direct conflict with
Bullcoming v. New Mexico, 564 U.S. ___, ___, 131 S. Ct. 2705,
2713, 180 L. Ed. 2d 610, 619 (2011) (finding that State’s
reliance on substitute witness for analyst who performed blood
analysis violates Sixth Amendment’s Confrontation Clause). I
therefore respectfully dissent.
I.
Here, Linnea Schiffner, a forensic scientist employed by
the New Jersey State Police DNA Laboratory, prepared a DNA
profile of a suspect based on a complex series of tests on swabs
taken from the victim of an aggravated sexual assault. Jennifer
Banaag, another scientist from the same laboratory, prepared a
DNA profile based on a sample taken from defendant. At
defendant’s trial, the State did not call Schiffner as a
witness. Instead, the State presented Banaag, who testified
that the DNA profile of the rape suspect prepared by Schiffner
matched the profile she prepared from defendant’s DNA.
Significantly, Banaag did not participate in or observe any
of Schiffner’s tests. Although Banaag was familiar with the DNA
testing procedures in the laboratory, reviewed Schiffner’s
written notes, and analyzed the DNA sample taken from defendant,
she was a stranger to the tests actually performed by Schiffner.
2
Nevertheless, Banaag read to the jury what Schiffner had done
and the results she reached.
At trial, the State argued that defendant must be guilty
because Schiffner’s DNA profile matched the DNA sample taken
from defendant. Although Schiffner’s test results were
testimonial statements implicating defendant in a crime,
defendant was never given the opportunity to cross-examine
Schiffner -- to ask her how she performed each individual test;
what she observed during those tests; and whether there were any
errors, lapses, or malfunctions that may have corrupted the
integrity of the results.
The majority gives its blessing to a procedure that does an
end run around the Sixth Amendment. The opportunity to cross-
examine Banaag about Schiffner’s test report no more satisfies
the Confrontation Clause than would the opportunity to cross-
examine a police witness about an absent eyewitness’s
identification of an accused. The primary purpose of
Schiffner’s preparing a DNA profile from swabs taken from the
victim was to further a criminal prosecution. That DNA profile
was offered to the jury for its truth -- that the rapist is
defendant. That testimonial statement could not be offered to
the jury without making Schiffner available for cross-
examination.
3
II.
The Confrontation Clause generally prohibits the use of
out-of-court testimonial statements by an absent witness who has
not been subject to cross-examination. Crawford v. Washington,
541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 192
(2004). The admission of testimonial hearsay evidence is
conditioned on the presence of the witness at trial or on the
“unavailability [of the witness] and a prior opportunity for
cross-examination” of that witness. Id. at 68, 124 S. Ct. at
1374, 158 L. Ed. 2d at 203. The United States Supreme Court,
“relying on Crawford’s rationale, refused to create a ‘forensic
evidence’ exception to this rule.” Bullcoming, supra, 564 U.S.
at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 620 (citing
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527,
174 L. Ed. 2d 314 (2009)).
The majority claims to follow “the pre-Williams
Confrontation Clause holdings on forensic evidence,” ante at ___
(slip op. at 25), Bullcoming and Melendez-Diaz, but those cases
give no support to the majority.
The United States Supreme Court held in Bullcoming, supra,
that a laboratory analyst who did not perform, participate in,
or observe a blood test cannot give surrogate testimony for the
absent analyst who did the testing and recorded the results
without offending the Sixth Amendment’s Confrontation Clause.
4
564 U.S. at ___, 131 S. Ct. at 2713, 180 L. Ed. 2d at 619. The
Court reached that result because the surrogate expert cannot
give firsthand testimony about what the analyst did and observed
during a “particular test” or during the “testing process.” Id.
at ___, 131 S. Ct. at 2715, 180 L. Ed. 2d at 622. The Court
also recognized that cross-examination of a surrogate witness
cannot “expose any lapses or lies on” the part of the analyst.
Ibid. The Court understood that without the analyst on the
stand, the defense is deprived of the ability to ask questions
that might reveal whether the analyst failed to comply with
protocols, id. at ___ n.8, 131 S. Ct. at 2715 n.8, 180 L. Ed. 2d
at 622 n.8, or that might reveal whether “incompetence” accounts
for the analyst’s test results, id. at ___, 131 S. Ct. at 2715,
180 L. Ed. 2d at 622. See also Melendez-Diaz, supra, 557 U.S.
at 310-11, 129 S. Ct. at 2532, 174 L. Ed. 2d at 321 (holding
that admission of laboratory report identifying substance was
testimonial evidence and therefore accused had Sixth Amendment
right to confront analyst who prepared it).
Beside the constitutional significance of requiring the
analyst to explain the test, there is a very practical reason
for demanding testimony from the person who conducted the test:
errors in the testing process may not be disclosed absent cross-
examination of the analyst. “Confrontation is one means of
5
assuring accurate forensic analysis.” Melendez-Diaz, supra, 557
U.S. at 318, 129 S. Ct. at 2536, 174 L. Ed. 2d at 326.
Mistakes occur in laboratories conducting DNA tests. In a
DNA analysis, technical “[e]rrors as small and unintentional as
an analyst accidentally squeezing a pipette into the wrong tube,
or forgetting to change gloves after an extraction, can
compromise critical evidence.” Erin Murphy, The New Forensics:
Criminal Justice, False Certainty, and the Second Generation of
Scientific Evidence, 95 Cal. L. Rev. 721, 754–55 (2007). In
addition, there is always the potential of an analyst making a
transcription error. For example, “an audit of a Massachusetts
crime lab revealed ‘instances in which laboratory officials
entered the same genetic profile under two different ID numbers
in the database,’ and in which an analyst reported ‘DNA results
in four cases matched the genetic material from old rape kits
when they had not.’” Id. at 773 (quoting Jonathan Saltzman, US
Audit Found More Problems at Crime Lab, Boston Globe, Feb. 1,
2007, at A1). Justice Alito has noted that forensic DNA testing
may be “‘plagued by issues of suboptimal samples, equipment
malfunctions and human error.’” Dist. Attorney’s Office for the
Third Judicial Dist. v. Osborne, 557 U.S. 52, 81, 129 S. Ct.
2308, 2327, 174 L. Ed. 2d 38, 60 (2009) (Alito, J., concurring)
(quoting R. Michaelis et al., A Litigator’s Guide to DNA 341
(2008)).
6
Those errors may never come to light unless the analyst is
on the stand and subject to examination. Justice Kagan in her
dissent in Williams described a reported rape case in which an
analyst at first testified that DNA evidence implicated the
defendant, only to retract her testimony when she realized that
she had inadvertently switched the labels on the victim’s and
defendant’s samples. Williams v. Illinois, 567 U.S. ___, ___,
132 S. Ct. 2221, 2264, 183 L. Ed. 2d 89, 138 (2012).
It thus becomes clear that “exposing lab analyst
incompetency, inexperience, bias, or dishonesty through cross-
examination is one of the defendant’s few tools for undermining
such damning evidence.” Lucie Bernheim, Student Scholarship,
Getting Back to Our “Roots”: Why the Use of Cutting Edge
Forensic Technology in the Courtroom Should (and Can) Still Be
Constrained by the Plain Language of the Confrontation Clause,
10 Seattle J. Soc. Just. 887, 890-91 (2012). “DNA testing is
only as reliable as are the people overseeing each of [the]
processes . . . .” Sheldon Krimsky & Tania Simoncelli, Genetic
Justice: DNA Data Banks, Criminal Investigations, & Civil
Liberties 280 (2011). Cross-examination of the analyst gives
defense counsel the tool to expose mistakes due to cross
contamination of test samples, an “inaccurate interpretation” of
test results, “completely fabricated results,” and other forms
of human error. Bernheim, supra, at 891.
7
Allowing a surrogate expert witness to testify for the
analyst, however well informed the witness may be about
laboratory procedures and about the analyst’s notes, is not an
adequate substitute for what the Sixth Amendment guarantees --
confrontation. Cross-examination of a surrogate witness is a
useless exercise because the surrogate cannot answer what
precise tests the actual analyst performed; the surrogate can
only repeat what the analyst recorded.
III.
The State offered the DNA profile prepared by Schiffner as
an accurate and truthful scientific analysis. Schiffner’s test
results were testimonial statements that incriminated defendant
and were powerful evidence presented to convict defendant.
Schiffner’s results were read to the jury by Banaag, the
surrogate witness. The majority contends that Banaag, who read
to the jury Schiffner’s notes and machine-generated data but who
did not conduct, participate in, or observe the actual testing,
could testify about what Schiffner did and observed. But this
is precisely what the Confrontation Clause prohibits. See
Bullcoming, supra, 564 U.S. at ___, 131 S. Ct. at 2715, 180 L.
Ed. 2d at 621.
The majority does not dispute that Schiffner’s test results
were testimonial or that the DNA profile she prepared was
8
offered for its truth. That the surrogate witness checked
Schiffner’s work product or came to her own conclusions does not
alter the fact that Schiffner’s testimonial statements were
passed through to the jury without affording defendant his right
of confrontation.
The core principal that has animated Confrontation Clause
jurisprudence since Crawford is that a testimonial statement may
not be presented to the jury unless the witness making that
statement is subject to cross-examination at trial or was
previously available for cross-examination. Crawford, supra,
541 U.S. at 68, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203.
IV.
Cross-examination has been described as one of the greatest
devices ever conceived for the exposition of truth and
disclosure of error. See California v. Green, 399 U.S. 149,
158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489, 497 (1970).
Cross-examination is rendered a useless weapon in the truth-
seeking process when the person bearing testimonial statements
against the accused does not have to be called as a witness and
when that absent witness’s damning testimonial statements can be
introduced through a surrogate. The Confrontation Clause was
intended to interdict the testimony that the majority now
allows. The protections afforded by the Confrontation Clause
9
are lost when the testimony of the person with firsthand
knowledge -- whether a scientist or an eyewitness -- is not
tested in the crucible of cross-examination.
Because I do not believe that defendant was accorded the
rights guaranteed to him by the Sixth Amendment, I respectfully
dissent.
10
SUPREME COURT OF NEW JERSEY
NO. A-129 SEPTEMBER TERM 2011
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
REGINALD ROACH a/k/a REGINALD
W. HOLMES,
Defendant-Appellant.
DECIDED August 6, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY Justice Albin
CHECKLIST AFFIRM REVERSE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6 1
1