State v. Rodriguez

S
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            STATE v. RODRIGUEZ—CONCURRENCE

  KAHN, J., concurring. I agree with and join in full
the majority opinion. I write separately to clarify the
intersection of evidence based on DNA analysis and
the constitutional right to confrontation.
   During oral argument, each party was asked which
individuals involved in DNA analysis were required to
testify pursuant to the confrontation clause of the sixth
amendment to the United States constitution, especially
in light of State v. Walker, 

332 Conn. 678

, 

212 A.3d 1244

(2019). Each party gave a very different response. The
state read Walker to stand for the proposition that, to
satisfy the requirements of the confrontation clause,
the state was required to call only the person or persons
who conducted the critical, interpretive part of the DNA
analysis involving the calling of the alleles, which gives
rise to a numerical DNA profile. Furthermore, the state
argued that the technicians involved in the preliminary
stages including extraction, quantitation, and amplifica-
tion are not necessary witnesses. The defendant inter-
preted precedent, including Walker, to not only apply
to analysts as described by the state, but also to the
technician who put the DNA sample into the electropho-
resis machine1 and, potentially, any other person that
could have contaminated the sample at any stage.
Although it is certainly not uncommon for opposing
parties to interpret precedent differently, the wide gulf
between these responses illustrates a continuing uncer-
tainty in this critical area of constitutional rights,
despite recent decisions from this court. See, e.g., State
v. Lebrick, 

334 Conn. 492

, 

223 A.3d 333

 (2020); State v.
Walker, supra, 678; State v. Sinclair, 

332 Conn. 204

,

210 A.3d 509

 (2019); State v. Buckland, 

313 Conn. 205

,

96 A.3d 1163

 (2014), cert. denied, 

574 U.S. 1078

, 

135 S.
Ct. 992

, 

190 L. Ed. 2d 837

 (2015); State v. Smith, 

289
Conn. 598

, 

960 A.2d 993

 (2008).
   DNA analysis is a powerful tool that has become a
staple in both the scientific community and trial courts
since DNA fingerprinting was first invented in 1984. See
P. Gill et al., ‘‘Forensic Application of DNA ‘Finger-
prints,’ ’’ 318 Nature 577, 577 (1985). This methodology
allows us to determine—from blood, skin, sweat,
semen, hair, or other DNA-containing cells—the likeli-
hood that an individual is reasonably tied to a crime
scene, victim, weapon, or other object. A mere four
decades ago, the use of DNA sequencing and compari-
son as an evidentiary tool in the courtroom was not
even an option. Since it was first used to convict a
Florida defendant of a sexual offense in 1987; see A.
Adema, ‘‘DNA Fingerprinting Evidence: The Road to
Admissibility in California,’’ 26 San Diego L. Rev. 377,
385 and n.52 (1989); Andrews v. State, 

533 So. 2d 841

,
842, 850–51 (Fla. App. 1988), review denied, 

542 So. 2d
1332

 (Fla. 1989); DNA analysis has rapidly evolved to
include improved methodologies. It has not only been
used in contemporary trials to inculpate defendants,
but also to exonerate wrongly convicted individuals
who spent years, and even decades, incarcerated. See
generally Innocence Project, DNA’s Revolutionary Role
in Freeing the Innocent (April 18, 2018), available at
https://www.innocenceproject.org/dna-revolutionary-
role-freedom (last visited September 22, 2020).
   Although the last forty years have seen rapid evolu-
tion of DNA analysis in the field of science, the jurispru-
dence regarding constitutionally permissible use of
DNA evidence has evolved at a more staid pace. Scant
binding precedent from the United States Supreme
Court, combined with a lack of cohesion and clarity in
the available precedent, has resulted in uncertainty in
both state and federal jurisdictions. This lack of guid-
ance has not gone unnoticed by this court; see State v.
Walker, supra, 

332 Conn. 706

 (‘‘[d]ue to the fractured
nature of [Williams v. Illinois, 

567 U.S. 50

, 

132 S. Ct.
2221

, 

183 L. Ed. 2d 89

 (2012)], courts have struggled to
determine the effect of Williams, if any, on the legal
principles governing confrontation cause claims’’); by
federal courts of appeals; see Washington v. Griffin,

876 F.3d 395

, 409 (2d Cir. 2017) (‘‘[w]e have already
noted the difficulty in identifying a single holding of
principle from the several opinions of the fractured
Williams [c]ourt, using the analytic approach that the
Supreme Court recommends’’), cert. denied,             U.S.
    , 

138 S. Ct. 2578

, 

201 L. Ed. 2d 299

 (2018); and even
by ideologically distinct members of the United States
Supreme Court. See Stuart v. Alabama,            U.S.     ,

139 S. Ct. 36

, 37, 

202 L. Ed. 2d 414

 (2018) (Gorsuch, J.,
dissenting from the denial of certiorari) (‘‘Respectfully,
I believe we owe lower courts struggling to abide our
holdings more clarity than we have afforded them in
this area. Williams imposes on courts with crowded
dockets the job of trying to distill holdings on two
separate and important issues from four competing
opinions. The errors here may be manifest, but they
are understandable and they affect courts across the
country in cases that regularly recur.’’).2
  In an effort to provide comprehensive guidance, this
concurrence (1) illustrates the DNA analysis process
as described to the United States Supreme Court, (2)
details the requirements of the confrontation clause as
established by Crawford3 and how it applies to forensic
reports for non-DNA substances, and (3) explains which
stages of DNA analysis I believe are subject to the
requirements of the confrontation clause in light of this
court’s precedent.
                             I
                    DNA ANALYSIS
  When Williams was before the United States
Supreme Court in December, 2011, the New York
County District Attorney’s Office and the New York
City Office of the Chief Medical Examiner (OCME) sub-
mitted an amici curiae brief that, in part, described the
DNA testing process at the OCME. Williams v. Illinois
(No. 10-8505), United States Supreme Court Briefs,
October Term, 2011, Amicus Brief of the New York
County District Attorney’s Office et al., pp. 7–8. I find
their description of DNA analysis as it is performed at
the OCME to be informative and reiterate it here in
order to provide clear context for the remainder of this
concurrence.4
   ‘‘At the OCME, the testing of each item involves five
distinct stages, each of which is performed by one or
more different persons. The first stage is evidence
examination, in which a technician (technician 1)
examines the sample for biological fluids and takes
cuttings for DNA extraction. The second stage is extrac-
tion, in which a technician (technician 2) adds chemical
reagents to the sample that break open the cells and
free up the DNA so it is accessible for testing. The third
stage is quantitation, in which a technician (technician
3) measures the amount of DNA that is present in the
sample. If there is a sufficient amount of DNA, the
testing proceeds to stage four, amplification, in which
another technician (technician 4) uses a highly auto-
mated process to target, tag, and copy [sixteen] specific
locations (‘loci’), thereby raising them to a detectable
level. The fifth stage is electrophoresis, or DNA typing,
in which two more technicians (technicians 5 and 6)
run the amplified DNA through machines that illuminate
the tagged areas and separate, label, and display each
locus. The result—an electropherogram—is a genetic
DNA profile that is ready for comparison. Notably, each
technician in stages one through five prepares work-
sheets contemporaneously with each task that is per-
formed, which enable subsequent reviewers to verify
that each step was conducted in accordance with estab-
lished procedures.’’ (Emphasis added.) 

Id., p. 7

; see also
M. Chin et al., Forensic DNA Evidence: Science and the
Law (2019) § 3:4, pp. 3-20 through 3-35.
   The amici also highlighted that ‘‘each case involves
the separate testing of a minimum of two different sam-
ples (a crime scene sample and a suspect exemplar),
and each process requires the participation of at least
six different technicians. That means that each case
will involve at least [twelve] technicians. Only at the
end of these processes does an analyst, who routinely
will testify in court about the case, compare the two
electropherograms and prepare a report setting forth
her conclusions.’’ Williams v. Illinois (No. 10-8505),
United States Supreme Court Briefs, supra, pp. 7–8.5
  The first four stages described above are conducted
by technicians who each complete a discrete step of the
DNA sample preparation, following highly proscribed
methods. A technician then loads the sample into the
electrophoresis machine that, in step five, produces raw
data that describe the genotype of the DNA sample. It
is at this point that an analyst becomes involved. The
analyst uses her skilled judgment—either through man-
ual computation or computer software—to conduct an
interpretive analysis of the raw data to call the alleles
and generate a numerical DNA profile that is used for
comparison. See, e.g., People v. John, 

27 N.Y.3d 294

,
300, 

52 N.E.3d 1114

, 

33 N.Y.S.3d 88

 (2016). At a mini-
mum, there are two DNA profiles: one generated from
an unknown sample—commonly collected from a crime
scene, weapon, or victim that potentially came from a
then unknown perpetrator—and another from a known
sample, commonly DNA collected from a suspect, often
via a buccal swab, pursuant to a warrant. The analyst
then compares these DNA profiles to determine if they
match, which is ‘‘measured by a statistic expressing the
rarity of that shared profile, known as the random
match probability statistic.’’ M. Chin et al., supra, p. 5-
1. Ultimately, the analyst states the probability that a
person chosen at random from a population of unre-
lated people will possess a DNA profile that matches
the DNA profile collected as evidence. Id.
                            II
             CONFRONTATION CLAUSE
   In 2004, the United States Supreme Court rejected the
then accepted view ‘‘that the [c]onfrontation [c]lause
applies of its own force only to in-court testimony, and
that its application to out-of-court statements intro-
duced at trial depends upon the law of [e]vidence
. . . .’’ (Internal quotation marks omitted.) Crawford
v. Washington, 

541 U.S. 36

, 50–51, 

124 S. Ct. 1354

, 

158
L. Ed. 2d 177

 (2004). Instead, the United States Supreme
Court determined that ‘‘[the confrontation clause]
applies to ‘witnesses’ against the accused—in other
words, those who ‘bear testimony.’ . . . ‘Testimony,’ in
turn, is typically ‘[a] solemn declaration or affirmation
made for the purpose of establishing or proving some
fact.’ . . . An accuser who makes a formal statement
to government officers bears testimony in a sense that
a person who makes a casual remark to an acquaintance
does not.’’ (Citations omitted.) 

Id., 51

; see also State v.
Walker, supra, 

332 Conn. 690

.
  This was a sea change in confrontation clause juris-
prudence. Out-of-court statements that were typically
admitted under hearsay exceptions; see, e.g., Ohio v.
Roberts, 

448 U.S. 56

, 66, 

100 S. Ct. 2531

, 

65 L. Ed. 2d
597

 (1980); were now constitutionally inadmissible if
they were testimonial. Put another way, even if a state-
ment falls under a valid hearsay exception under the
rules of evidence, it will nonetheless be inadmissible
under the confrontation clause if that statement is testi-
monial in nature and the defendant’s right to cross-
examination remains unsatisfied;6 hearsay safeguards
are not adequate to protect confrontation clause rights.
   When assessing whether a statement is admissible
under the confrontation clause, the first, most basic
question is whether the witness is available. If the wit-
ness is available, then the defendant has an opportunity
to cross-examine, thereby satisfying the requirements
of the confrontation clause. In addition, if the witness
is unavailable but the defendant had a prior opportunity
to cross-examine that witness, then the confrontation
clause is also satisfied. In those instances, the admissi-
bility of the witness’ individual statements, whether
testimonial or not, is governed by the rules of evidence.
However, if the witness is unavailable and there was
no prior opportunity to cross-examine that witness,
then the court must determine whether the statement
is testimonial. If the statement is not testimonial, then
admission of the statement does not violate the confron-
tation clause and its admissibility is, once again, deter-
mined by the rules of evidence. If the statement is testi-
monial, then its admission violates the confrontation
clause and the statement is inadmissible, even if it
would otherwise be admissible under the rules of evi-
dence. The entire analysis to determine if the protec-
tions offered by the confrontation clause apply turns
on what it means for a statement to be testimonial.
   The United States Supreme Court has described vari-
ous formulations of this core class of ‘‘testimonial’’
statements, including ‘‘[1] ex parte in-court testimony
or its functional equivalent—that is, material such as
affidavits, custodial examinations, prior testimony that
the defendant was unable to cross-examine, or similar
pretrial statements that declarants would reasonably
expect to be used prosecutorially . . . [2] extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testi-
mony, or confessions . . . [3] statements that were
made under circumstances which would lead an objec-
tive witness reasonably to believe that the statement
would be available for use at a later trial . . . .’’ (Cita-
tion omitted; internal quotation marks omitted.) Craw-
ford v. Washington, 

supra,

 

541 U.S. 51

–52. The United
States Supreme Court has held, for example, that inter-
rogations by law enforcement officers solely directed
at establishing the facts of a past crime, in order to
identify or provide evidence to convict the perpetrator,
fall squarely within the class of testimonial hearsay.
See Davis v. Washington, 

547 U.S. 813

, 826, 

126 S. Ct.
2266

, 

165 L. Ed. 2d 224

 (2006); Crawford v. Washington,
supra, 53. Crawford, however, ‘‘[left] for another day
any effort to spell out a comprehensive definition of
‘testimonial.’ ’’ Crawford v. Washington, supra, 68.
  Subsequent United States Supreme Court decisions
began to clarify what qualified as ‘‘testimonial’’ state-
ments in a piecemeal fashion, each focusing on whether
the specific statement at issue was testimonial rather
than attempting to provide a comprehensive definition
of ‘‘testimonial’’ that could be applied in any type of
case. Statements made in the course of a police interro-
gation, for example, ‘‘are nontestimonial when made
. . . under circumstances objectively indicating that
the primary purpose of the interrogation is to enable
police assistance to meet an ongoing emergency. They
are testimonial when the circumstances objectively
indicate that there is no such ongoing emergency, and
that the primary purpose of the interrogation is to estab-
lish or prove past events potentially relevant to later
criminal prosecution.’’ Davis v. Washington, supra, 

547
U.S. 822

; see also 

id., 822 n.1

 (noting that this conclusion
does not imply ‘‘that statements made in the absence
of any interrogation are necessarily nontestimonial’’).
    The results of forensic analysis are testimonial when,
regardless of the official title on the document, ‘‘[t]hey
are incontrovertibly a solemn declaration or affirmation
made for the purpose of establishing or proving some
fact.’’ (Internal quotation marks omitted.) Melendez-
Diaz v. Massachusetts, 

557 U.S. 305

, 310, 

129 S. Ct. 2527

,

174 L. Ed. 2d 314

 (2009). Under these circumstances,
a forensic report provides ‘‘the precise testimony the
analysts would be expected to provide if called at trial’’
and is ‘‘functionally identical to live, in-court testimony,
doing ‘precisely what a witness does on direct examina-
tion.’ ’’ 

Id., 310

–11. The absence of an oath, however,
‘‘[i]s not dispositive in determining if a statement is
testimonial.’’ (Internal quotation marks omitted.) Bull-
coming v. New Mexico, 

564 U.S. 647

, 664, 

131 S. Ct.
2705

, 

180 L. Ed. 2d 610

 (2011). The formality of a foren-
sic report ‘‘suggests its evidentiary purpose,’’ but it is
‘‘not the sole touchstone of our primary purpose inquiry
. . . .’’ (Internal quotation marks omitted.) 

Id., 671

(Sotomayor, J., concurring in part).
   From the triumvirate of Davis, Melendez-Diaz, and
Bullcoming, we can glean one clear rule: a statement
is testimonial when it has the ‘‘primary purpose of estab-
lish[ing] or prov[ing] past events potentially relevant to
a later criminal prosecution.’’ (Internal quotation marks
omitted.) 

Id., 659 n.6

 (opinion announcing judgment);
State v. Sinclair, supra, 

332 Conn. 220

. This doctrine
may be applied in a relatively straightforward manner
when a single individual makes a statement or a single
expert conducts an analysis and issues a forensic
report. In such cases, the person who made the state-
ment or authored the report that had the primary pur-
pose of establishing a fact to be used in a criminal
prosecution would need to be present at the trial and
subject to cross-examination, or, if unavailable for trial,
the defendant must have had a previous opportunity to
cross-examine the witness regarding the statement. See
Crawford v. Washington, supra, 

541 U.S. 68

 (‘‘Where
testimonial evidence is at issue . . . the [s]ixth
[a]mendment demands what the common law required:
unavailability and a prior opportunity for cross-exami-
nation’’). This doctrine, on the other hand, becomes less
clear when it is applied to more complicated scientific
processes, such as DNA analysis, where multiple techni-
cians complete the procedural steps that produce an
amplified DNA sample, an electrophoresis machine gen-
erates raw data based on the sample, and analysts sub-
jectively apply their scientific expertise to interpret the
raw data and generate a DNA profile.
                             III
        IMPLICATIONS FOR DNA EVIDENCE
   The United States Supreme Court addressed forensic
analyses, i.e., analysis of seized substances and analysis
of blood alcohol content, in Melendez-Diaz and Bull-
coming, and DNA analysis came into the limelight soon
after. See, e.g., Williams v. Illinois, 

supra,

 

567 U.S. 50

.
The complexity of DNA analysis and the uncertainty of
how the primary purpose test applied to its myriad
discrete analytical steps resulted in severely fractured
opinions in Williams, a plurality opinion with concur-
rences and a dissent, and ‘‘no clear consensus as to what
constitute[s] a testimonial statement in this context.’’
(Internal quotation marks omitted.) Washington v.
Griffin, supra, 

876 F.3d 406

; see also Young v. United
States, 

63 A.3d 1033

, 1042–43 (D.C. 2013). Ordinarily,
‘‘[w]hen a fragmented [c]ourt decides a case and no
single rationale explaining the result enjoys the assent
of five [j]ustices, the holding of the [c]ourt may be
viewed as the position taken by those members who
concurred in the judgments on the narrowest grounds.’’
(Internal quotation marks omitted.) United States v.
James, 

712 F.3d 79

, 95 (2d Cir. 2013), cert. denied, 

572
U.S. 1134

, 

134 S. Ct. 2660

, 

189 L. Ed. 2d 208

 (2014). ‘‘As
we recently observed, the court in Williams made it
impossible to identify the narrowest ground [on which
the justices agreed] because the analyses of the various
opinions are irreconcilable. . . . Consequently . . .
we must rely on Supreme Court precedent before Wil-
liams to the effect that a statement triggers the protec-
tions of the [c]onfrontation [c]lause when it is made
with the primary purpose of creating a record for use
at a later criminal trial.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Walker, supra, 

332 Conn.
706

; see State v. Sinclair, supra, 

332 Conn. 225

; see
also United States v. James, supra, 95–96.
   Despite a lack of clear guidance from Williams as
to what aspects of DNA analysis trigger the protections
of the confrontation clause, one common theme has
risen to the surface: ‘‘neither Melendez-Diaz nor Bull-
coming require[s] every witness in the chain of custody
to testify.’’ State v. Buckland, supra, 

313 Conn. 214

; see
also Washington v. Griffin, supra, 

876 F.3d 407

 (‘‘the
Supreme Court has never held that the [c]onfrontation
[c]lause requires an opportunity to [cross-examine]
each lab analyst involved in the process of generating a
DNA profile and comparing it with another’’). Melendez-
Diaz made this explicitly clear, stating: ‘‘[W]e do not
hold, and it is not the case, that anyone whose testimony
may be relevant in establishing the chain of custody,
authenticity of the sample, or accuracy of the testing
device, must appear in person as part of the prosecu-
tion’s case. While . . . [i]t is the obligation of the prose-
cution to establish the chain of custody . . . this does
not mean that everyone who laid hands on the evidence
must be called. . . . [G]aps in the chain [of custody]
normally go to the weight of the evidence rather than
its admissibility.’’ (Citations omitted; internal quotation
marks omitted.) Melendez-Diaz v. Massachusetts,

supra,

 

557 U.S. 311

 n.1. This court has recently rein-
forced that view, observing that ‘‘[not] all analysts who
participate in the process of generating a DNA profile
necessarily must testify,’’ and concluding that ‘‘where
the generation of a DNA profile is testimonial, at least
one analyst with the requisite personal knowledge must
testify.’’ (Internal quotation marks omitted.) State v.
Walker, supra, 

332 Conn. 719

.
   Although trial courts have general guidance that not
every witness must testify, there remains a woeful pau-
city of specificity as to which technicians or analysts
are required to testify under the confrontation clause.
In order to provide some clarity as to when and how
the confrontation clause applies in such cases, I review
the following three types of ‘‘statements’’ that come
from the process of DNA analysis: (1) technicians who
are involved in the preliminary stages to prepare a sam-
ple for analysis, (2) electrophoresis machines that gen-
erate raw data, and (3) analysts who apply their exper-
tise to draw conclusions based on the raw data and
inculpate—or exculpate—suspects. Of these three cate-
gories, it is only the third category of analysts that
triggers the protections afforded by the confrontation
clause of the sixth amendment.
                             A
                       Technicians
   Technicians—whether referred to as technicians or
analysts in a specific laboratory—are the individuals
who start with a known or unknown DNA sample that
was collected outside of the laboratory and who there-
after prepare that sample to be placed into an electro-
phoresis machine. Sample preparation is often con-
ducted by several individuals, each of whom follows
detailed standard operating procedures to conduct a
discrete step of the process. In many instances, labora-
tory protocol requires that technicians document their
steps in writing for quality control and quality assurance
purposes. See, e.g., A.B.A., Standards for Criminal Jus-
tice: DNA Evidence (3d Ed. 2007) standard 16-3.2, p.
70. In conducting his or her individual step in the larger
sample preparation process, each individual technician
is making a narrow ‘‘statement,’’ e.g., ‘‘I received the
sample following the quantification stage conducted by
technician X, conducted amplification pursuant to the
standard operating procedure of this laboratory, and
then provided the amplified sample to technician Y in
order for her to load it into the electrophoresis
machine.’’ Even when considered together, the cumula-
tive ‘‘statement’’ of the technicians involved in the pre-
paratory stages is, at most, that the DNA sample loaded
into the electrophoresis machine was extracted from
the original sample delivered to the laboratory for analy-
sis.
   The United States Supreme Court, however, has not
concluded whether the confrontation clause applies to
‘‘statements’’ made by technicians. In the absence of
clear guidance, I am persuaded by the plurality in Wil-
liams, which reasoned that, ‘‘[w]hen lab technicians
are asked to work on the production of a DNA profile,
they often have no idea what the consequences of their
work will be. . . . It is also significant that in many
labs, numerous technicians work on each DNA profile.
. . . When the work of a lab is divided up in such a
way, it is likely that the sole purpose of each technician
is simply to perform his or her task in accordance with
accepted procedures.’’ (Citations omitted.) Williams v.
Illinois, 

supra,

 

567 U.S. 85

 (plurality opinion); see also
Melendez-Diaz v. Massachusetts, 

supra,

 

557 U.S. 357

(Kennedy, J., dissenting) (‘‘[l]aboratory analysts who
conduct routine scientific tests are not the kind of con-
ventional witnesses to whom the [c]onfrontation
[c]lause refers’’). Even when a technician may have
‘‘mixed motives’’—to simply perform his or her task
and to be a link in the chain that will eventually lead
to evidence that may be used at trial—a court must
‘‘examin[e] the statements and actions of all partici-
pants’’ to determine the primary purpose of a statement.
Michigan v. Bryant, 

562 U.S. 344

, 368, 370, 

131 S. Ct.
1143

, 

179 L. Ed. 2d 93

 (2011). ‘‘Melendez-Diaz and Bull-
coming together suggest that a laboratory analysis is
testimonial only when the circumstances under which
the analysis was prepared, viewed objectively, establish
that the primary purpose of a reasonable analyst in the
declarant’s position would have been to create a record
for use at a later criminal trial’’ (Emphasis in original;
internal quotation marks omitted.) Washington v. Grif-
fin, supra, 

876 F.3d 405

.
   In my view, the ‘‘statements’’ made by technicians
fall short of providing testimony against the petitioner
because, in and of themselves, they do not have the
primary purpose of ‘‘establish[ing] or prov[ing] past
events potentially relevant to later criminal prosecu-
tion’’ and, therefore, are not subject to the requirements
of the confrontation clause. (Internal quotation marks
omitted.) Bullcoming v. New Mexico, 

supra,

 

564 U.S.
659

 n.6 (opinion announcing judgment).7 This court has
previously indicated its agreement with this reasoning,
stating that ‘‘the analysts involved in the preliminary
testing stages, specifically, the extraction, quantitation
or amplification stages, are not necessary witnesses.’’
(Internal quotation marks omitted.) State v. Walker,
supra, 

332 Conn. 719

; see also People v. John, supra,

27 N.Y.3d 313

 (‘‘[m]ore succinctly, nothing in this record
supports the conclusion that the analysts involved in the
preliminary testing stages, specifically, the extraction,
quantitation or amplification stages, are necessary wit-
nesses’’).
    As statements made by technicians regarding the
preparation of samples for DNA analysis constitute non-
testimonial hearsay and, therefore, are not subject to
the requirements of the confrontation clause, courts
should turn to evidentiary rules to determine if those
statements are admissible to establish that the DNA
loaded into the electrophoresis machine was extracted
and analyzed from the known or unknown sample deliv-
ered to the laboratory. Requiring the prosecution to
establish the chain of custody should, in a typical case,
be sufficient to meet its evidentiary burden for this
portion of the DNA analysis. See State v. Rosado, 

107
Conn. App. 517

, 532, 

945 A.2d 1028

, cert. denied, 

287
Conn. 919

, 

951 A.2d 571

 (2008). In determining whether
the prosecution meets its burden, ‘‘[t]he court must
consider the nature of the article, the circumstances
surrounding its preservation and custody and the likeli-
hood of intermeddlers tampering with it . . . .’’ (Inter-
nal quotation marks omitted.) State v. Coccomo, 

302
Conn. 664

, 685, 

31 A.3d 1012

 (2011); see also State v.
Petitt, 

178 Conn. App. 443

, 452, 

175 A.3d 1274

 (2017)
(‘‘[a]s a general rule, it may be said that the prosecution
is not required or compelled to prove each and every
circumstance in the chain of custody beyond a reason-
able doubt; the reasonable doubt must be to the whole
evidence and not to a particular fact in the case’’ (inter-
nal quotation marks omitted)), cert. denied, 

327 Conn.
1002

, 

176 A.3d 1195

 (2018). In addition, the complexity
of DNA itself acts as an inherent check on chain of
custody because when an inadvertent error in sample
preparation occurs, ‘‘any hypothetical missteps of the
[technicians] in the multiple stages preliminary to the
DNA typing at the electrophoresis stage would result
in either no DNA profile or an incomplete DNA profile,
or one readily inconsistent with [the known sample].’’
People v. John, supra, 

27 N.Y.3d 313

; see also Williams
v. Illinois, 

supra,

 

567 U.S. 86

 (plurality opinion) (‘‘it is
inconceivable that shoddy lab work would somehow
produce a DNA profile that just so happened to have
the precise genetic makeup of [the] petitioner’’).
  I do not dismiss concerns that the defendant’s goals
of cross-examining each technician are ‘‘to weed out
not only the fraudulent analyst, but the incompetent
one as well’’; Melendez-Diaz v. Massachusetts, 

supra,


557 U.S. 319

; and to determine ‘‘whether crime labs have
properly stored, extracted, and labeled DNA samples,
particularly where a single lab contains and tests sam-
ples from the victim, the crime scene, and the accused
. . . .’’ (Citation omitted.) Washington v. Griffin,
supra, 

876 F.3d 411

 (Katzmann, C. J., concurring). These
concerns, however, are not unique to DNA analysis, but
are common concerns in the authentication of any piece
of physical evidence and are properly addressed
through chain of custody analysis. See, e.g., State v.
Coccomo, 

supra,

 

302 Conn. 694

 (establishing chain of
custody for defendant’s blood drawn for blood alcohol
content analysis). The mere fact that the physical evi-
dence in these cases is DNA is not sufficient to subject
nontestimonial statements to the strictures of the con-
frontation clause. See Bullcoming v. New Mexico,

supra,

 

564 U.S. 669

 (Sotomayor, J., concurring in part)
(‘‘[w]hen the primary purpose of a statement is not to
create a record for trial . . . the admissibility of [the]
statement is the concern of state and federal rules of
evidence, not the [c]onfrontation [c]lause’’ (citation
omitted; internal quotation marks omitted)). Defen-
dants seeking to elicit testimony from technicians are
not left without recourse, however; they retain the
power to subpoena technicians to testify about specific
aspects of the chain of custody that the defendant
believes cast doubt on its reliability and, therefore, sup-
ports his or her argument that the DNA that was pre-
pared and loaded in to the electrophoresis machine did
not originate from the sample provided to the labora-
tory. Cf. Melendez-Diaz v. Massachusetts, 

supra,
313

–14 (‘‘The text of the [sixth amendment] contem-
plates two classes of witnesses—those against the
defendant and those in his favor. The prosecution must
produce the former; the defendant may call the latter.’’
(Emphasis in original; footnote omitted.)).
                             B
             Machine Generated Raw Data
   Having concluded that statements made by techni-
cians are nontestimonial and, therefore, not subject to
the requirements of the confrontation clause, I now
turn to the next stage in the DNA analysis: raw data
produced by an electrophoresis machine. The United
States Supreme Court has not issued a decision directly
related to machine generated raw data in this particular
context, but its silence provides insight as to how it
could resolve this issue. In 2007, the United States Court
of Appeals for the Fourth Circuit held that ‘‘the raw
data generated by the [chromatograph] machines do
not constitute ‘statements,’ and the machines are not
‘declarants.’ As such, no out-of-court statement impli-
cating the [c]onfrontation [c]lause was admitted into
evidence through the [expert testimony]. Any concerns
about the reliability of such machine-generated infor-
mation is addressed through the process of authentica-
tion not by hearsay or [c]onfrontation [c]lause analy-
sis.’’ United States v. Washington, 

498 F.3d 225

, 231
(4th Cir. 2007), cert. denied, 

557 U.S. 934

, 

129 S. Ct. 2856

,

174 L. Ed. 2d 600

 (2009). ‘‘[T]he petition for certiorari
[in Washington] was still pending when the [United
States Supreme] Court issued Melendez-Diaz. Though
the [c]ourt granted petitions for certiorari in other cases
and remanded them for reconsideration in light of Mel-
endez-Diaz, the [United States] Supreme Court denied
the petition in Washington. In the wake of these various
decisions, the [United States Court of Appeals for the]
Fourth Circuit has not overruled Washington. Several
courts have held that Washington’s approach is still
sound after Melendez-Diaz, Bullcoming, and Wil-
liams.’’ (Footnotes omitted.) B. Sites, ‘‘Rise of the
Machines: Machine-Generated Data and the Confronta-
tion Clause,’’ 16 Colum. Sci. & Tech. L. Rev. 36,
55–56 (2014).
   Furthermore, the United States Supreme Court also
indicated in Bullcoming that its holding did not apply
to machine generated raw data. Bullcoming v. New
Mexico, 

supra,

 

564 U.S. 660

–61; see also 

id., 673

–74
(Sotomayor, J., concurring in part) (‘‘[T]his is not a case
in which the [s]tate introduced only [machine gener-
ated] results, such as a printout from a gas chromato-
graph. . . . Thus, we do not decide whether . . . a
[s]tate could introduce (assuming an adequate chain of
custody foundation) raw data generated by a machine
in conjunction with the testimony of an expert witness.’’
(Citation omitted.)) Noting that ‘‘the United States
Supreme Court has not addressed the issue of whether
the introduction of raw data generated by a machine
falls within the confines of Crawford or Melendez-Diaz
[and that] [b]oth the majority and the concurrence in
Bullcoming emphasized . . . that the holding of that
case was limited to human statements and actions and
did not necessarily apply to raw, machine produced
data,’’ this court has held that ‘‘machine generated data
[are] not subject to the [restriction] imposed by Craw-
ford, Melendez-Diaz, and Bullcoming.’’ State v. Buck-
land, supra, 

313 Conn. 216

, 221.
   Other reports and documentation could be offered
at trial related to the calibration and maintenance of
an electrophoresis machine that are also not subject to
the requirements of the confrontation clause. ‘‘Mainte-
nance and calibration records fall in the portion of the
spectrum in which humans play an active role in the
day-to-day operation of machines, but where courts
should still have no difficulty concluding that they gen-
erally are not subject to the [c]onfrontation [c]lause.
. . . Though these records are made as formal asser-
tions that would normally be used for their truth at
trial, courts should conclude that they generally will
not trigger a [c]onfrontation [c]lause right because the
statements in them are not testimonial. Many courts
that have considered the issue have come to this conclu-
sion. Maintenance and calibration records, when made
as part of a routine process, are created ‘to ensure the
reliability of such machines—not to secure evidence
for use in any particular criminal proceeding. The fact
that the scientific test results and the observations of
the technicians might be relevant to future prosecutions
of unknown defendants [is], at most, an ancillary con-
sideration . . . .’ ’’ (Emphasis in original; footnote
omitted.) B. Sites, supra, 16 Colum. Sci. & Tech. L. Rev.
76–77, quoting People v. Pealer, 

20 N.Y.3d 447

, 455, 

985
N.E.2d 903

, 

962 N.Y.S.2d 592

, cert. denied, 

571 U.S. 846

,

134 S. Ct. 105

, 

187 L. Ed. 2d 77

 (2013); see also Melendez-
Diaz v. Massachusetts, 

supra,

 

557 U.S. 311

 n.1 (‘‘[a]ddi-
tionally, documents prepared in the regular course of
equipment maintenance may well qualify as nontestimo-
nial records’’); State v. Swinton, 

268 Conn. 781

, 833–36,

847 A.2d 921

 (2004) (error in admission of bite mark
overlays created through Adobe Photoshop because
state did not present foundation testimony of adequacy
of programs did not violate defendant’s confrontation
rights but, rather, was evidentiary in nature); People v.
Pealer, supra, 456 (‘‘[w]e endorse this [widely held view]
and hold that documents pertaining to the routine
inspection, maintenance and calibration of breathalyzer
machines are nontestimonial under Crawford and its
progeny’’).
                            C
                        Analysts
   Having concluded that both technicians’ ‘‘state-
ments’’ and machine generated raw data are not testi-
monial and, therefore, that their admissibility is gov-
erned by the rules of evidence (e.g., chain of custody
or authentication) and not the confrontation clause, I
now turn to statements made by the third category of
witnesses, the analysts. To be clear, I describe analysts
as the individuals who take raw data produced by an
electrophoresis machine and, applying their scientific
training and expertise, make subjective conclusions on
the basis of this raw data, which are often referred to
as generating numerical identifiers and/or the calling
of the alleles. See M. Chin et al., supra, § 3:4, pp. 3-31
through 3-35. Once this step has occurred, the resulting
conclusions are referred to as the DNA profile. The
statements made by analysts about how the DNA profile
was developed from the raw data and the conclusions
that can be drawn from the DNA profile—which may
also be included in a written report—are clearly testi-
monial as they have the primary purpose of creating a
record for use at trial that conveys the likelihood that
the source of DNA found at the crime scene came from
the defendant. State v. Walker, supra, 

332 Conn. 710

.
This is the step of DNA analysis that is subject to the
strict requirements of the confrontation clause, and
these are the individuals who the prosecution must call
as witnesses. See People v. John, supra, 

27 N.Y.3d 313

(‘‘we conclude that it is the generated numerical identifi-
ers and the calling of the alleles at the final stage of
the DNA typing that effectively accuses [the] defendant
of his role in the crime charged’’).
   There could be up to three analysts in even a straight-
forward case involving one known and one unknown
DNA sample: (1) the analyst who develops the DNA
profile for the known sample, (2) the analyst who devel-
ops the DNA profile for the unknown sample,8 and (3)
the analyst who compares the two DNA profiles to
determine if they match.9 For cases involving more DNA
samples, the number of analysts could be even greater.
State prosecutors have argued that requiring multiple
analysts to testify at a criminal trial is overly burden-
some on a laboratory. See, e.g., Williams v. Illinois,

supra,

 

567 U.S. 117

–18 (Thomas, J., concurring in the
judgment). It is only the analysts, however, who per-
form the calling of the alleles and compare the DNA
profiles, which, in turn, leads to the accusation against
the defendant, and the defendant’s sixth amendment
right to confront his or her accusers outweighs any
burden on the laboratory or the prosecution. ‘‘[A] labo-
ratory that uses a . . . multiple-analyst model may
adapt its operation so that a single analyst is qualified
to testify as to the DNA profile testing.’’ People v. John,
supra, 

27 N.Y.3d 313

. First, and perhaps most effective,
a laboratory could assign a single analyst to a case to
draw all conclusions that would require testimony to
comply with the confrontation clause, thereby necessi-
tating only a single witness to testify about all DNA
profiles and comparisons at the defendant’s trial. Sec-
ond, an analyst could observe the final stage of analysis
for each DNA profile which he or she did not personally
conduct, which would enable him or her to be cross-
examined at trial as to why certain subjective, scientific
decisions were made that led to the specific conclusions
in the DNA profile developed and its comparison.
Finally, in recognition that analysts leave employment,
move away, or regrettably pass away before a case gets
to trial, a testifying analyst could conduct his or her
own, independent analysis of the raw data and draw
independent conclusions about the DNA profiles.10 See,
e.g., State v. Lebrick, supra, 

334 Conn. 528

 (‘‘[w]here
[an] [expert witness] present[s] [her] own independent
[judgments], rather than merely transmitting testimo-
nial hearsay, and [is] then subject to cross-examination,
there is no [c]onfrontation [c]lause violation’’ (internal
quotation marks omitted)); People v. John, supra, 

27
N.Y.3d 315

 (‘‘[w]e conclude that an analyst who wit-
nessed, performed or supervised the generation of
defendant’s DNA profile, or who used his or her inde-
pendent analysis on the raw data, as opposed to a testi-
fying analyst functioning as a conduit for the conclu-
sions of others, must be available to testify’’). Under
each of these three scenarios, at least one analyst would
be available to testify at trial about the DNA profiles,
and a defendant could effectively cross-examine the
analyst to elicit details regarding the subjective, scien-
tific decisions that resulted in their development and
comparison.11
                            IV
                     CONCLUSION
   The confrontation clause does not require that evi-
dence be infallible or even reliable, but guarantees a
defendant the right to assess the reliability of hearsay
statements that are testimonial in nature through cross-
examination. See Williams v. Illinois, 

supra,

 

567 U.S.
113

 (Thomas, J., concurring in the judgment); State v.
Walker, supra, 

332 Conn. 690

. Courts around the country
have grappled with the application of confrontation
clause precedent established by Melendez-Diaz, Bull-
coming, and Williams to DNA evidence, and have
sought to satisfy a defendant’s right to confrontation
while sensibly placing some limit on the number of
analysts that are necessary to testify at trial. See Wil-
liams v. Illinois, 

supra, 89

 (Breyer, J., concurring); Peo-
ple v. John, supra, 

27 N.Y.3d 314

. Despite the sheer
number of judges and justices dedicating time and effort
to this complex area of the law, a major issue remains:
‘‘How does the [c]onfrontation [c]lause apply to crime
laboratory reports and underlying technical statements
made by laboratory technicians?’’ Williams v. Illinois,

supra, 89

 (Breyer, J., concurring).
    While no single opinion from either the United States
Supreme Court or this court states in a comprehensive
manner which stages of DNA analysis do or do not
implicate the confrontation clause, recent decisions
from this court clearly dictate that the technicians
‘‘involved in the preliminary testing stages, specifically,
the extraction, quantitation or amplification stages, are
not necessary witnesses [because their statements do
not violate the confrontation clause]. . . . Rather, it is
the generated numerical identifiers and the calling of
the alleles at the final stage of the DNA typing that
effectively accuses [the] defendant of his role in the
crime charged.’’ (Citation omitted; internal quotation
marks omitted.) State v. Walker, supra, 

332 Conn. 719

.
Those witnesses, more specifically, must have personal
knowledge relating to the analysis conducted in the
calling of the alleles and the comparison of the DNA
profiles that result.
   For these reasons, I offer the following guidance
when applying the confrontation clause to DNA evi-
dence: (1) hearsay statements made by technicians
involved in the preliminary stages of sample preparation
are nontestimonial and, therefore, not subject to the
confrontation clause; (2) machine generated raw data
produced by electrophoresis machines are not subject
to the confrontation clause; and (3) analysts involved
in the calling of the alleles and in generating numerical
identifiers to develop a DNA profile for known and
unknown samples, as well as analysts who compare
those two profiles, are subject to the confrontation
clause, and the defendant must have an opportunity to
cross-examine these declarants.
      For the foregoing reasons, I respectfully concur.
  1
     I refer to the scientific instrument that analyzes the DNA sample as the
electrophoresis machine throughout this concurrence, but I acknowledge
that the instrument may have different names depending on its capabilities.
For example, a laboratory may instead use a genetic analyzer. See, e.g., M.
Chin et al., Forensic DNA Evidence: Science and the Law (2019) § 3:4, pp.
3-28 through 3-31. Regardless of its name, the instrument is one that produces
raw data regarding the genotype of the DNA sample.
   2
     Justice Sotomayor joined Justice Gorsuch in the dissent from the denial
of certiorari.
   3
     Crawford v. Washington, 

541 U.S. 36

, 

124 S. Ct. 1354

, 

158 L. Ed. 2d
177

 (2004).
   4
     Methodologies vary among types of DNA samples (i.e., single source or
mixtures) and analytical labs. This description is intended for illustrative
purposes and to serve as a point of comparison based on the character
of the activity, regardless of the exact process or technical descriptors
employed.
   5
     The expert witness in Walker testified that a similar DNA typing process
was used at the laboratory run by the Division of Scientific Services of the
Department of Emergency Services and Public Protection. ‘‘She testified
that the process involves four steps: (1) extracting DNA from the sample
and purifying it of contaminants; (2) quantitating the DNA, i.e., determining
the amount of DNA that has been extracted; (3) amplifying the DNA using
a thermal cycler machine, i.e., creating many copies of different regions of
the DNA; and (4) interpreting the data generated from these steps and
constructing the numerical DNA profile, which consists of a series of num-
bers to designate the ‘alleles.’ ’’ State v. Walker, supra, 

332 Conn. 684

–85.
   6
     A defendant’s right to cross-examine a witness regarding testimonial
statements may be satisfied in one of two ways. First, the defendant’s right
may be satisfied if the witness is available to testify and can be cross-
examined at trial. Second, the defendant’s right may be satisfied if the witness
is unavailable to testify at trial but the defendant had a prior opportunity
to cross-examine her or him about the testimonial statements. See Crawford
v. Washington, supra, 

541 U.S. 68

. For clarity, this concurrence assumes
that a witness is unavailable and that the defendant has not been afforded
a prior opportunity to cross-examine her or him.
   7
     This scenario is distinguishable from that presented in Melendez-Diaz
v. Massachusetts, 

supra,

 

557 U.S. 313

. In that case, the statement made by
the unavailable analyst that a substance found on the defendant was cocaine,
an illegal substance, was itself inculpatory and was an essential fact to be
proven at trial. 

Id.
8

     The Williams plurality, which, for the reasons stated in the body of this
opinion is not binding precedent, concluded that DNA profiles and reports
regarding unknown samples collected from crime scenes or victims are not
testimonial when they are produced before any suspect was identified. In
that case, ‘‘[t]he report [on a vaginal swab from a rape victim of an unknown
assailant] was sought not for the purpose of obtaining evidence to be used
against [the] petitioner, who was not even under suspicion at the time, but
for the purpose of finding a rapist who was on the loose. And the profile
that [was produced from the semen on the vaginal swab] was not inherently
inculpatory.’’ Williams v. Illinois, 

supra,

 

567 U.S. 58

. (plurality opinion).
This distinction is puzzling. While one purpose of conducting DNA analysis
may be to identify a rapist who is at large, a purpose of at least equal
importance is to generate a DNA profile that will be used at a future criminal
trial once the rapist is apprehended. The DNA profile from the vaginal swab,
or other unknown DNA collected in connection with a crime, will eventually
be the evidence that directly links the defendant to the crime, and, yet, the
rationale in Williams would exclude DNA profiles of unknown samples
from the requirements of the confrontation clause in all instances in which
there is no identified suspect. For this reason, I am persuaded that the
confrontation clause requirements apply equally to analysts who create DNA
profiles for both known and unknown samples. See 

id., 135

 (Kagan, J.,
dissenting) (‘‘We have previously asked whether a statement was made for
the primary purpose of establishing past events potentially relevant to later
criminal prosecution—in other words, for the purpose of providing evidence.
. . . None of our cases has ever suggested that, in addition, the statement
must be meant to accuse a previously identified individual . . . .’’ (Citations
omitted; internal quotation marks omitted.)).
   9
     The Williams plurality concluded that expert testimony regarding state-
ments in a DNA report produced by an outside laboratory, and relied on
by an expert witness in forming his testimony, but when the report itself
was not introduced into evidence, ‘‘does not violate the [c]onfrontation
[c]lause because that provision has no application to out-of-court statements
that are not offered to prove the truth of the matter asserted.’’ Williams v.
Illinois, 

supra,

 

567 U.S. 57

–58 (plurality opinion). Claiming that the expert
witness did not vouch for the accuracy of the report from the outside
laboratory but, instead, testified that it matched the known profile so that
the fact finder could assess the accuracy of the expert’s statement, the
plurality based its conclusion on the long accepted exception to hearsay
evidence that ‘‘an expert witness may voice an opinion based on facts
concerning the events at issue in a particular case even if the expert lacks
firsthand knowledge of those facts.’’ 

Id., 67

. Hearsay exceptions, however, do
not satisfy the confrontation clause. ‘‘[W]here the testifying expert explicitly
refers to, relies on, or vouches for the accuracy of the other expert’s findings,
the testifying expert has introduced out-of-court statements that, if offered
for their truth and are testimonial in nature, are subject to the confrontation
clause.’’ State v. Walker, supra, 

332 Conn. 694

; see also State v. Sinclair,
supra, 

332 Conn. 226

 (‘‘[B]usiness and public records are generally admissi-
ble absent confrontation not because they qualify under an exception to
the hearsay rules, but because—having been created for the administration
of an entity’s affairs and not for the purpose of establishing or proving some
fact at trial—they are not testimonial. . . . Nonetheless, such records will
be deemed testimonial if they were created for the purpose of establishing
or proving some fact at trial.’’ (Citations omitted; internal quotation marks
omitted.)). In situations such as those present in Williams, there is ‘‘no
plausible reason for the introduction of [the out-of-court] statements other
than to establish their truth.’’ Williams v. Illinois, 

supra, 104

 (Thomas, J.,
concurring in the judgment).
   10
      This third manner in which to comply with the confrontation clause is
particularly significant when a DNA profile is produced from an unknown
sample and there are no immediately identifiable suspects. In some cases,
it may be years or even decades before a suspect is identified, and then
years from that point until the suspect is arrested, charged, and tried. In
those cases, it is highly likely that the original analyst who created the DNA
profile from the unknown sample is not available to testify, but another
analyst who will testify can use his or her independent analysis to draw
independent conclusions about the DNA profile. See, e.g., State v. Lebrick,
supra, 

334 Conn. 527

 (second analyst who did not produce original ballistics
report ‘‘applied his training and experience to the sources before him and
reach[ed] an independent judgment, the basis of which could be tested
through cross-examination’’ (internal quotation marks omitted)); Young v.
United States, 

supra,

 

63 A.3d 1049

 (‘‘the prosecution may be allowed to call
a substitute expert to testify when the original expert who performed the
testing is no longer available (through no fault of the government), retesting
is not an option, and the original test was documented with sufficient detail
for another expert to understand, interpret, and evaluate the results’’ (inter-
nal quotation marks omitted)). In such cases, ‘‘neither [the original DNA
report] nor any of the statements or conclusions contained therein [are]
admitted into evidence, either as an exhibit or through the conduit of [the
testifying expert’s] live, in-court testimony. . . . [T]he jury [is] not informed
of the nature of the reports on which [the testifying witness] relied, who
generated the [original DNA] reports, what information they contained, or
whether [the testifying expert’s] opinions [are] consistent with the [original
DNA] reports.’’ State v. Lebrick, supra, 527.
   11
      This application of the confrontation clause to the conclusions of ana-
lysts in the final stages of DNA analysis is consistent with this court’s
conclusions and holding in State v. Walker, supra, 

332 Conn. 678

. In that
case, the expert witness developed a DNA profile by interpreting raw data
generated from DNA extracted from an unknown sample collected from
the crime scene, and she conducted the ultimate comparison of that DNA
profile with the DNA profile from the known DNA extracted from the
defendant’s buccal swab. 

Id., 696

. The expert witness ‘‘was not, however,
involved in the analysis of the buccal swab, which was an essential compo-
nent of the comparison making her opinion possible. There was no compari-
son without the buccal swab analysis. Rather, the known processing group
conducted this analysis and provided the resulting DNA profile to [the expert
witness] for her to use in her comparison. [The expert witness] neither
participated in nor observed this analysis.’’ 

Id.

 In addition, ‘‘[there was] no
evidence contained within the record indicating that the known processing
group provided [the expert witness] with the raw machine data generated
from the preliminary stages of the analysis such that [she] could indepen-
dently verify that the DNA profile had accurately been constructed.’’ 

Id., 696

–
97.

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