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New York Appellate Court Orders New Trial in Case Involving Improper Admission of Hearsay Evidence Involving DNA Testing

DNA evidence swabKnowing which evidence can be used against you in a New York criminal trial or prosecution is critically important to ensuring that you receive fair treatment. At Tilem & Associates, our seasoned New York criminal defense lawyers have counseled numerous residents on their rights and assisted them with ensuring that the prosecution plays by the rules. A recent appellate opinion demonstrates the complexity that can often arise with evidentiary issues, especially when it comes to DNA evidence.

In the case, the appellate court was asked to consider whether a defendant’s constitutional right to confront persons who offer testimony against him was violated by the admission of DNA evidence by a witness who did not supervise or generate the DNA evidence. The defendant was charged with a number of offenses stemming from three burglaries. The first burglary involved a dry cleaning store and a number of other stores that were connected through a common basement. The defendant was seen on surveillance footage in the stores, and the police took swabs of streaks of blood that they identified on the rear door of the building. The swabs were sent to the Office of the Chief Medical Examiner (OCME) for DNA analysis.

The second incident involved a home furnishings store. The police located a receipt covered in blood near a check-out stand, which they also sent to OCME for DNA analysis. Eventually, the DNA evidence from the two burglaries was matched with the defendant’s DNA profile that was stored in the database. During trial, the prosecution called one witness from OCME to testify about the DNA evidence. The witness testified about the DNA evidence based on his review or reports that other lab technicians had prepared and about other test results that he did not run himself. The defendant objected at several points throughout the testimony, stating that the prosecution was actually eliciting evidence from witnesses who were not going to testify at trial, i.e., the technicians who performed the other tests and DNA analyses. Ultimately, the trial court allowed the witness to testify in a conclusory and general fashion regarding the evidence without personal knowledge of the tests and analyses, including the DNA profile generated from the swabbing of the defendant.

The jury convicted the defendant of two counts of burglary and criminal mischief, and the Appellate Division affirmed. The defendant appealed. On review, the defendant argued that the testimony from the lab technician violated his Sixth Amendment right to confront individuals who testify against him. The appellate court first stated the general rule that the Sixth Amendment prohibits the admission of testimonial statements offered by non-testifying witnesses unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Applied here, the appellate court concluded that the testimony regarding the swab and lab tests was generated for the sole purpose of proving the defendant’s guilt. As a result, the defendant should have been afforded a chance to cross-examine the technician who witnessed, created, or oversaw the creation of the DNA testing and profile of the defendant.

If you are involved in a criminal investigation or prosecution, it is critical that you have an experienced and tenacious criminal defense lawyer on your side. At Tilem & Associates, we have handled numerous types of criminal matters on behalf of New York residents, including matters involving DNA evidence and other evidentiary issues. We offer a free consultation to assist you with learning about your rights and how we can help you. Call us now at 1-877-377-8666 or contact us online to get started.

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