Merit Decision: Before You Complain, Watch What You Stipulate. State v. Keck.

On November 27, 2013, the Supreme Court of Ohio handed down a merit decision in State v. Keck, 2013-Ohio-5160. In a unanimous decision written by Justice Lanzinger, the Court held that the defendant’s rights under the Confrontation Clause were not violated by the testimony of an expert witness who relied on a report authored by a different, non-testifying analyst when the defendant stipulated to the admissibility and content of the original report.  Justices O’Donnell and O’Neill concurred in judgment only. The case was argued May 7, 2013.

Case Background

Daniel Keck was convicted of a plethora of sex offenses involving minors, and was sentenced to an aggregate of 71 years in prison.

Report of BCI Investigator Mark Losko

Mark Losko, an analyst with the Bureau of Criminal Identification and Investigation (BCI), had generated DNA profiles from buccal swabs taken from Keck and the alleged victims in the case. Losko included these profiles in his report, which also contained a comparison of those profiles and DNA found on a piece of physical evidence.  Losko apparently was going to testify in the case, but the day before he was to appear, defense counsel stipulated to the admissibility and content of his report. Thus, the DNA profiles generated by Losko were stipulated to and were in evidence.  This eventually proved the undoing of the defense argument in this case.

Testimony of BCI Forensic Scientist Kristen Slaper

At trial, the prosecution called Kristen Slaper as an expert witness in the field of DNA analysis and comparison.  As part of the basis of her testimony, she used the DNA profiles generated by Losko.  She compared those with DNA profiles she had generated herself from samples taken from a comforter containing semen stains found in Keck’s house. It was Slaper’s analysis that connected the defendant to the crimes.

Keck argued that because his counsel could not cross-examine Losko, he was deprived of his right of confrontation. The trial court admitted both Losko’s and Slaper’s reports into evidence over the defendant’s objection. On appeal of this issue, the Fourth District Court of Appeals held that there was no Confrontation Clause violation.  Read the oral argument preview here and the analysis here.

Review of Relevant Federal Confrontation Clause Precedent

I recently analyzed the federal precedent stemming from the seminal case of Crawford v. Washington, in regard to Confrontation Clause rights and statements of non-testifying victims, as part of the Court’s decision in State v. Clark, Slip Opinion No. 2013-Ohio-4731. In this case, Justice Lanzinger reviews the federal precedent regarding Confrontation Clause issues and scientific reports.  These are the key cases, with their holdings.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). This case involved a state forensic laboratory report identifying the white powdery substance at issue in the case as cocaine. The analysts who prepared the report had sworn to the certificates of analysis before a notary public, but did not testify. The U.S. Supreme Court held that scientific test reports are testimonial evidence, and cannot be used against the defendant unless the analyst who prepared the report is subject to cross examination at trial or otherwise.  The certificates were the functional equivalent of live testimony during trial, so the defendant had the right to cross examine the author.

Bullcoming v. New Mexico, 131 S. Ct. 2705 (2009).  The U.S. Supreme Court held that when a crime lab report—in this case a blood alcohol concentration test—is introduced into evidence, the report is testimonial, and the accused has the right to cross examine the actual analyst who prepared the report, not a substitute analyst.  In the Bullcoming case the analyst who had prepared the blood alcohol test was on a leave of absence. The prosecution tried to introduce his report through the testimony of another scientist who performed the same kinds of tests, and was familiar with how they were done. The high court, noting that the certification described the analyst’s adherence to a precise protocol in performing the test, held its admission was an impermissible violation of the Confrontation Clause.

Williams v. Illinois, 132 S.Ct. 2221 (2012). The U.S. Supreme Court held that expert testimony regarding results of DNA reports prepared by a nontestifying analyst did not create a Confrontation Clause violation 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.

It looked like the Ohio high court was going to have to wade into this mess in the Keck case and figure out where it fit in this jurisprudence, but that isn’t what happened.

Keck’s Fateful Stipulation

After reviewing this key federal precedent, Justice Lanzinger noted that none of the federal cases involved a defendant who had stipulated to the admissibility and content of the underlying report the testifying analyst had relied upon, which made this case distinguishable.  The Court found that by this stipulation, the defendant waived any right to challenge Slaper’s reliance on Losko’s report.  The Court also rejected Keck’s argument that he did not stipulate to the portion of Losko’s report that Slaper relied on, finding that the record clearly demonstrated otherwise.  The Court concluded that the record showed that the state was ready, willing and able to produce Losko to testify, and that it was Keck’s own decision that made Losko’s testimony unnecessary.

Because of its holding, the Court found it unnecessary to address Keck’s argument that the Ohio Constitution provides greater protection for rights of Confrontation than exist under the federal constitution.

Case Syllabus

When a defendant has stipulated to the admissibility and content of a nontestifying analyst’s scientific report, the testimony of a witness who relied on that report does not violate the defendant’s right to confrontation.

Concluding Observations

At oral argument, when the prosecutor brought up the stipulated report, the case pretty much came to a standstill.

This exchange occurred:

Chief Justice O’Connor (to the prosecutor):

“So you are saying our analysis should stop at the fact that the sample, graph and report generated by Losko were stipulated to by the defense, and therefore were in evidence, unchallenged,  which gave Slaper a free rein to use that information in what she did which was matching the crime scene DNA with the contents of this stipulated report?”


The Chief:

“So we don’t have to get into the issue of whether Losko’s actual creation of these samples from the donors is nontestimonial activity?”

Answer-“I don’t believe you do.”

As soon as defense counsel got up for rebuttal, the Chief asked him about this.  As I noted at the time, the rebuttal seemed painfully long. This was the crux of the exchange:

The Chief:

“The stipulated report did not have your client’s profile in it?”

Defense counsel:

“I don’t think so, but the record could prove me wrong.”

The Chief:

“But that is the crux here—if they stipulated to your client’s profile in that report then you stipulated to something you are arguing was a constitutional violation.”

Defense counsel:

“I don’t think the stipulation was that report.”

I had predicted that if this was what happened, the case might be dismissed as improvidently accepted, which the Court did not do. But I saw this as a sure win for the state. In a way, it’s a shame the case came down this way, because the issues it raised, had there been no stipulation, are very interesting ones in this untidy area of the law. I also predicted the state constitutional law argument would go nowhere.


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