Oral Argument Preview: Still More Crawford Issues. State v. Daniel Arden Keck II.

On November 27, 2013, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On May 7, 2013, the Supreme Court of Ohio will hear oral argument in the case of State v. Daniel Arden Keck II, 2011-0686. The issue in this case is whether the Confrontation Clause prohibits the State from introducing testimonial statements of a nontestifying forensic analyst through the in-court testimony of a third party who did not perform or observe the laboratory analysis on which the statements are based.


In 1993, Keck’s church invited him to become a member of an organization called the “Royal Rangers,” described as a Christian equivalent of Boy Scouts. Through this organization, Keck mentored a number of teen and pre-teen boys, many of whom were from disadvantaged backgrounds. In 2009, one of the boys Keck came into contact with through the program reported to his mother that Keck had sexually assaulted him. When executing the search warrant for Keck’s home, police discovered evidence of other child victims, including child pornography. Keck was charged with a variety of sex crimes and kidnapping.

At trial, the state submitted as evidence the DNA of Keck and five of the alleged victims. BCI agent Mark Losko took the swabs, and Agent Kristen Slaper compared the DNA profiles obtained from Keck’s home to the swabs taken from the alleged victims. Slaper testified at trial, but Losko did not. Keck argued that because his counsel could not cross-examine Losko, he was deprived of his rights of confrontation. The trial court allowed Slaper’s testimony over the defendant’s objection.

The Fourth District Court of Appeals held that there was no Confrontation Clause violation. The court explained two major cases, Melendez-Diaz v. Massachusetts (holding that a chemical analyst’s affidavit was a testimonial statement within the meaning of the Confrontation Clause), and State v. Crager (a pre-Melendez-Diaz case holding that DNA analysis reports are nontestimonial business records outside of the Confrontation Clause). The U.S. Supreme Court vacated the Supreme Court of Ohio’s decision in State v. Crager and ordered the Supreme Court of Ohio to reconsider that case in light of Melendez-Diaz. The Fourth District explained that the vacation—not reversal—of Crager meant that Crager is not necessarily inconsistent with Melendez-Diaz.

Distinguishing this case from Melendez-Diaz and Crager, the Fourth District noted that Losko’s analyses of the DNA samples was not introduced into evidence—rather, they were referenced by Slaper when she explained her own analysis. This was different from Melendez-Diaz, which involved an analyst’s affidavit introduced into evidence without any supporting testimony. Second, Slaper’s testimony, not Losko’s, provided the nexus between Keck and the crimes. Losko’s reports by themselves would not have been sufficient to connect Keck and the crimes. Slaper testified at trial and was thoroughly cross-examined. In addition, the court cited to a number of other state and federal courts that permitted experts to testify based on reports prepared by other analysts. Thus, because this case was distinguishable from Melendez-Diaz and Crager, Slaper’s testimony did not create a Confrontation Clause violation.

Key Precedent

Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements of witnesses absent from trial are admissible only if the declarant is unavailable and only when the defendant has had a prior opportunity for cross-examination)

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) (certificates of chemical analysis from laboratory analysis are testimonial statements within the purview of the Confrontation Clause).

State v. Crager, 116 Ohio St.3d 306 (2007) (DNA reports are nontestimonial business records admissible without the testimony of the analysts who prepare them). (case vacated by Melendez-Diaz)

Williams v. Illinois, 132 S.Ct. 2221 (2012) (expert testimony regarding results of DNA reports prepared by nontestifying analyst did not create Confrontation Clause issue because an expert witness may voice an opinion based on facts made known to the expert at or before the hearing even if the expert lacks firsthand knowledge of those facts).

Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011) (forensic laboratory report of blood-alcohol analysis containing a testimonial certification not admissible through testimony of scientist who neither performed the analysis nor signed the certification).

Keck’s Arguments on Appeal

Keck argues that Melendez-Diaz, and Bullcoming v. New Mexico control this case, and that Williams v. Illinois is distinguishable. Williams held that an expert was permitted to testify as to the results of a DNA report prepared by a nontestifying analyst because the report was a “fact made known to the expert at or before the hearing,” which the expert was permitted to rely upon under the rules of evidence. Keck argues that unlike in Williams, Slaper’s testimony did not indicate that she was relying on an assumption or considering a hypothesis as part of her testimony—rather, she asserted that the DNA samples tested by Losko were what they claimed to represent. Thus, she became a “surrogate witness,” similar to the expert witness in Bullcoming v. New Mexico, where the U.S. Supreme Court held that an expert could not testify as to the results of a blood-alcohol analysis report which contained a testimonial certification where that expert had not performed the analysis firsthand. Thus, this case is controlled by Bullcoming, and Slaper’s testimony violated the Confrontation Clause.

Second, Keck briefly argues that the confrontation clause in the Ohio Constitution can and should provide greater protection than that provided by the federal constitution. Because Article I, Section 10 of the Ohio Constitution provides a right to confrontation, the Supreme Court of Ohio should take this opportunity to foreclose the use of “surrogate” testimony as a backdoor through which to circumvent the federal Confrontation Clause.

State’s Arguments on Appeal

In response, the State distinguishes Melendez-Diaz and Bullcoming. It argues that unlike in Melendez-Diaz, the DNA report generated by Losko did not contain a testimonial statement. Instead, it was merely a printout of data. Slaper conducted the actual analysis and presented the conclusion that linked the victims to Keck. Therefore, she was not merely a surrogate for Losko’s testimony, as Keck argues.

The State also distinguishes Bullcoming v. New Mexico in that Slaper’s testimony was not a surrogate because her role was to establish that DNA from Keck and one of the victims was found in Keck’s home. Slaper testified as to this fact herself, and did not merely act as a conduit for Losko’s opinion. Her opinion was her own independent expert opinion.  Under Williams v. Illinois, Slaper was also entitled to rely on the profiles generated by Losko in arriving at her conclusions, and her reliance on them does not amount to surrogate testimony regarding another person’s conclusions.

The State further argues that the court should not expand the protections available under Ohio’s confrontation clause. Doing so would cause a number of problems, including (1) requiring prosecutors to bring in a large number of additional technicians and laboratory employees whenever test results are introduced into evidence (2) hurting the State’s ability to prosecute “cold” cases where a DNA profile generated long ago is matched to a current DNA profile and (3) increasing the cost of and reducing the availability of DNA evidence.

Finally, the State argues that even if there was a Confrontation Clause violation, there was sufficient additional inculpatory evidence to make the error a harmless error.

Keck’s Proposed Proposition of Law

The Confrontation Clause prohibits the State from introducing testimonial statements of a nontestifying forensic analyst through the in-court testimony of a third party who did not perform or observe the laboratory analysis on which the statements are based.

Amicus Curiae

The Ohio Attorney General has filed an amicus brief in support of the State. The Attorney General argues that  Keck’s constitutional claim is disposed of by the U.S. Supreme Court’s decision in Williams v. Illinois,  holding that expert testimony regarding the results of a DNA test performed by non-testifying analyst did not violate the confrontation clause. The AG also argues that the Ohio Constitution provides no greater confrontation rights than the U.S. Constitution.

 Student Contributor: Greg Kendall



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