United States v. Katso

UNITED STATES, Appellant

v.

Joshua KATSO, Airman Basic
U.S. Air Force, Appellee

No. 14-5008

Crim. App. No. 38005

United States Court of Appeals for the Armed Forces

Argued October 7, 2014

Decided June 30, 2015

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN and STUCKY, JJ., joined. OHLSON, J., filed a
separate dissenting opinion.

Counsel

For Appellant: Captain Thomas J. Alford (argued); Colonel Don
M. Christensen and Gerald R. Bruce, Esq. (on brief).

For Appellee: Major Nicholas D. Carter (argued); Major Isaac C.
Kennen.

Amicus Curiae for Appellant: Anece Baxter White, Esq. (on
brief) – Defense Forensic Science Center/United States Army
Criminal Investigation Laboratory.

Military Judges: William C. Muldoon Jr. and Matthew D. Van
Dalen

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Katso, 14-5008/AF

Judge RYAN delivered the opinion of the Court.

Appellee was convicted, contrary to his pleas, by a general

court-martial composed of officer and enlisted members of one

specification of aggravated sexual assault, one specification of

burglary, and one specification of unlawful entry, in violation

of Articles 120, 129, and 134, UCMJ, 10 U.S.C. §§ 920, 929, 934.

United States v. Katso, 73 M.J. 630, 632 (A.F. Ct. Crim. App.

2014). Appellee was sentenced to confinement for ten years, a

dishonorable discharge, and forfeiture of all pay and

allowances. Id. The convening authority approved the sentence.

Id. The United States Air Force Court of Criminal Appeals (CCA)

set aside and dismissed the findings and sentence, holding that

the testimony of a Government expert witness was based on a

testimonial report written by an out-of-court declarant, thereby

violating Appellee’s right to confrontation under the Sixth

Amendment of the United States Constitution. Id. at 638-40,

642.

The Judge Advocate General of the Air Force certified the

following issue to this Court:

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED
WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO
CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE
PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF
THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS
NOT HARMLESS.

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This case requires us to examine the application of the

Sixth Amendment to testimony relating the results of forensic

analysis that was the product of collaboration among a number of

laboratory employees. When an expert’s knowledge and opinions

are based in part on tests performed by others, what may the

expert tell the factfinder without violating the defendant’s

right to confrontation? To answer this question, we apply the

frameworks developed by the Supreme Court and by this Court to a

set of facts that neither court has considered.

We hold that the testimony of the Government’s forensic

expert witness, David Davenport, did not violate Appellee’s

right to confrontation. Unlike the experts in Bullcoming v. New

Mexico, 131 S. Ct. 2705, 2715 (2011), and United States v.

Blazier (Blazier II), 69 M.J. 218, 226 (C.A.A.F. 2010), Mr.

Davenport’s personal knowledge regarding the derivation of the

evidence at issue made him neither a “surrogate” expert,

Bullcoming, 131 S. Ct. at 2715, nor a mere “conduit” for the

testimonial statements of another. Blazier II, 69 M.J. at 225;

see also Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012).

Mr. Davenport conducted a thorough review of the entire case

file, including the documents submitted with the evidence, the

tests performed on the evidentiary samples, and the quality

control measures. He personally compared the DNA profiles from

the evidentiary samples to the DNA profiles from the known

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samples, reran the statistical analysis, and formulated his own

carefully considered conclusions. Much of the data underlying

his opinion was not testimonial, and, assuming arguendo that the

report prepared for his technical review was testimonial, Mr.

Davenport did not act as a mere conduit for the report. See

Memorandum from Robert Fisher, Forensic DNA Examiner, to

Commander, Air Force Office of Special Investigations,

Detachment 320 (Jan. 28, 2011) [hereinafter Final Report]. The

military judge’s denial of Appellee’s motion to exclude the

expert’s testimony was not an abuse of discretion, and the

decision of the CCA is reversed.

I. FACTS

A. Collecting and Analyzing the DNA Evidence

On the morning of December 11, 2010, Senior Airman (SrA) CA

reported that she had been raped, and identified Appellee as the

perpetrator. Agents from the Air Force Office of Special

Investigations (AFOSI) promptly brought SrA CA to the hospital

for an examination. A Sexual Assault Nurse Examiner (SANE)

testified that she collected, among other items, vaginal, oral,

and rectal swabs from SrA CA, a blood sample, and debris from

SrA CA’s clothing. The nurse examiner handed these samples to

an AFOSI agent. Another SANE testified that she collected

Appellee’s blood and saliva, obtained penile and scrotal swabs,

and handed the samples to an AFOSI agent.

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AFOSI Special Agent (SA) Richard Blair testified at trial

that he received the samples from the two agents who had been at

the hospital. The samples were combined into two separate

“sexual assault kits,” containing samples from Appellee and SrA

CA, respectively. SA Blair explained that the agents who

received the samples prepared a set of documents to accompany

each kit, which SA Blair reviewed. SA Blair sent this evidence

and documents to the United States Army Criminal Investigation

Laboratory (USACIL), enclosing a request form that described

each piece of evidence and listed identifying numbers for the

evidence.1

B. Mr. Davenport’s Testimony on the Motion to Suppress

Robert Fisher, the USACIL employee responsible for the

initial analysis of the sexual assault kits, was in Florida

1
The filled-out forms that accompanied the kits are not in the
record. However, SA Blair noted that Dep’t of the Air Force
Form 52, Evidence Tag (July 1986) [hereinafter AF Form 52], was
included with each kit. Mr. Davenport also stated that a “chain
of custody” document and a “laboratory exam request” accompany
all evidence arriving at USACIL through the mail. Dep’t of the
Army Form 4137, Evidence/Property Custody Document (July 1976)
[hereinafter DA Form 4137], and Dep’t of Defense Form 2922,
Forensic Laboratory Examination Request (July 2006) [hereinafter
DD Form 2922], are the forms submitted to USACIL with evidence.
See Dep’t of the Air Force, Instr. 31-206, Security Forces
Investigations Program para. 2.7.1.10 (Sept. 16, 2009)
(describing procedures for submission of evidence by Air Force
Security Forces). While we do not know what information was
filled out in this case, the generic forms -- AF Form 52, DA
Form 4137, and DD Form 2922 -- request the names of the party or
parties from whom the evidence was derived.

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during the court-martial to be by his mother’s side while she

underwent major surgery. The Government notified the defense

that it would elicit testimony about the forensic analysis from

Mr. Davenport, who conducted the technical review of Mr.

Fisher’s analysis. At the time of the trial, Mr. Davenport had

worked as a forensic DNA examiner at USACIL for more than six

years. Appellee made a motion in limine to exclude Mr.

Davenport’s testimony, arguing that such testimony would violate

his right to confrontation. In an Article 39(a), UCMJ, 10

U.S.C. § 839(a) (2012), session, Mr. Davenport testified both

about the steps that USACIL technicians follow to process

evidence in cases of alleged sexual assault and his own role in

reviewing and testing the evidence in this case.

i. USACIL’s Procedure for Processing Evidence

Testifying during the hearing on the motion to suppress,

Mr. Davenport described the path of sexual assault kits through

USACIL. First, employees in the evidence processing section

receive the evidence. They then scan and save an electronic

copy of the forms accompanying the evidence into a “case file”

on the laboratory’s computer system. The “case examiner” checks

the evidence out of the evidence processing section, breaks the

seal on the evidence, and checks the forms that accompanied the

package against the evidence to ensure that the lab received all

items reflected therein. The examiner then inventories the

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evidence, verifies that the evidence was properly sealed, and

notes any irregularities with the evidence. The examiner is

required to document any accidents or mistakes that occurred

during the tests.

The case examiner performs a serological examination, which

entails looking for traces of semen on the evidence collected

from the victim. Various steps of this exam require the

examiner to record his visual observations.2 The examiner then

creates DNA profiles from the “evidentiary samples” -- the

samples identified by the serology exam and the swabs collected

during the SANE’s examination of the suspect -- and creates DNA

profiles from the blood or saliva of the parties, the “known

samples.” To create a DNA profile, the examiner must “purify”

the DNA, extracting it from the sample; determine the quantity

and type of DNA present using an instrument that generates a

computer printout; copy portions of the DNA; and use another

instrument to produce the machine-generated data that comprises

the DNA profile.

2
Mr. Davenport reviewed observations recorded during the testing
process, such as these, along with Mr. Fisher’s other notes and
data, to determine that proper protocol was followed. Mr.
Davenport did not rely on some assertion or assurance by Mr.
Fisher (which resides nowhere in the record), as the dissent
proposes. United States v. Katso, __ M.J. __, __ (6) (C.A.A.F.
2015) (Ohlson, J., dissenting).

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The examiner compares the DNA profiles from the evidentiary

samples to the DNA profiles from the known samples. Based on

this comparison, the examiner determines whether any sample

identified by the serology exam contains a DNA profile matching

the DNA from the known sample of the suspect, and whether any

swab collected from the suspect contains a DNA profile matching

DNA from the known sample of the victim. For each match, the

examiner calculates the probability that the DNA profile on the

evidentiary sample would match an unrelated individual selected

at random from the American population. The examiner then

drafts a report summarizing these results.

ii. Mr. Davenport’s Technical Review

As the “technical reviewer,” Mr. Davenport was required to

verify Mr. Fisher’s results and approve the Final Report, which

Mr. Fisher drafted. In the Article 39(a) session, Mr. Davenport

outlined the steps he took to review Mr. Fisher’s work.

According to Mr. Davenport, his review focused on the items in

the case file, which contained, inter alia, the request for

analysis and forms submitted by AFOSI, Mr. Fisher’s handwritten

notes, records of the quality control measures used during

testing, all printouts generated during the testing process, the

raw DNA profile data, and the Final Report. Mr. Davenport

neither handled the initial evidence submitted nor observed Mr.

Fisher’s testing procedures.

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Mr. Davenport verified that Mr. Fisher followed protocol

and properly documented each step, and that the protocol

utilized by USACIL is widely accepted in the field of forensic

DNA analysis. Mr. Davenport testified that USACIL procedures

require many quality control measures, such as running positive

and negative controls, recording the lot numbers of the

chemicals used, processing an unrelated known DNA sample along

with the samples at issue, and processing test tubes that

contain reagent but not DNA. Mr. Davenport testified that he

was able to determine, based on the contents of the case file,

that Mr. Fisher took these measures.

Mr. Davenport explained that, since Mr. Fisher was required

to document accidents or mistakes, he could determine whether

any accidents occurred or whether Mr. Fisher made any mistakes

by reviewing Mr. Fisher’s notes. Additionally, he would have

been able to catch undocumented mistakes by checking for

irregularities in the results. For example, Mr. Davenport

checked that the quality control sample produced the expected

results and that known samples produced correctly gendered

profiles. Logically inconsistent results -- such as a complete

male profile in non-semen DNA taken from the victim or a

complete female profile generated from DNA supposedly extracted

from semen -- could signify a mix-up. Additionally, the

presence of a DNA profile not matching a known sample could

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indicate contamination. These objective measures enable the

technical reviewer to determine that cross-contamination did not

occur.

Mr. Davenport independently compared the DNA profiles of

the evidentiary and known samples to verify the matches. This

involved processing the machine-generated raw profile data using

a computer program and interpreting the profiles to detect

matches between the samples. Mr. Davenport then recalculated

the probability of a match between the DNA profiles for each

matching evidentiary sample and an individual selected at random

from the American population. Based on review and

interpretation of all of the above, Mr. Davenport determined

that he agreed with Mr. Fisher’s results and initialed the Final

Report, allowing the report to progress to the next stage of the

review process.

iii. Military Judge’s Ruling on Motion to Exclude Testimony

Relying on Mr. Davenport’s motions testimony detailing his

knowledge of and involvement in the testing process, the

military judge concluded that “Mr. Davenport’s opinions will be

based on his training and experience, and his review of the

entire case,” and denied Appellee’s motion. The military judge

found that Mr. Davenport analyzed the raw data “to ensure he

reached the same results and conclusions as Mr. Fisher had,” and

noted that Mr. Davenport explained he had “review[ed] the case

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from beginning to end.” The ruling permitted Mr. Davenport to

state his “opinion concerning the reliability of testing

procedures used in this case, the findings/results in this case

and the frequency statistics” only “[s]o long as Mr. Davenport

does not become a conduit of inadmissible testimonial hearsay.”

C. Mr. Davenport’s Court-Martial Testimony

Mr. Davenport testified before members as an expert,

providing his independent opinion on the results of the DNA

analysis. Mr. Davenport told members that, as the technical

reviewer, he based his opinions on his review of the case file.

The Final Report was not admitted into evidence. Mr. Davenport

only referenced the Final Report to note that he reviewed Mr.

Fisher’s interpretation of the results and checked the Final

Report against the documents submitted by AFOSI to make sure

that the report properly listed and identified the items

submitted as evidence.3 Based on his review of the entire case

file, Mr. Davenport testified that:

1. The evidence collected from SrA CA and Appellee was tested

“per protocol,”

2. The evidence was received in a sealed condition,

3. The evidence was inventoried properly,

4. The known samples were analyzed properly,

3
The Final Report included evidence custody document (ECD)
numbers for each kit.

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5. DNA profiles were generated “from the known blood of [SrA

CA] and [Appellee],”

6. The swabs collected from SrA CA contained semen,

7. DNA consistent with SrA CA and Appellee was found on the

rectal swabs from SrA CA,

8. Unidentifiable male DNA was found on SrA CA’s vaginal swab,

and

9. DNA consistent with SrA CA and Appellee was found on

Appellee’s penile and scrotal swabs.

Mr. Davenport also testified to the likelihood that the

recovered DNA profiles would match other individuals. On cross-

examination, defense counsel clarified briefly that Mr.

Davenport did not conduct the initial tests that produced the

DNA profiles. Defense counsel successfully got Mr. Davenport to

concede that the DNA analysis did not reveal anything about the

nature of the sexual contact.

II. CCA DECISION

The CCA’s analysis focused on the relationship between Mr.

Davenport’s trial testimony and the Final Report, but did not

directly address either the testimony on the motion in limine or

the military judge’s findings or conclusions on that motion.

Katso, 73 M.J. at 637-40. The CCA held that the Final Report

was testimonial, and determined that Mr. Davenport’s trial

testimony improperly repeated information from the report. Id.

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at 638-40. Specifically, it held that Mr. Davenport repeated

testimonial hearsay when he identified Appellee as the source of

the DNA found on samples collected from SrA CA, acting as a

“conduit” for this information. Id. at 639-40 (quoting Blazier

II, 69 M.J. at 225). The CCA found as a matter of fact that

“the record of trial does not definitively establish that Mr.

Davenport had first-hand knowledge as to whom the known DNA

sample or its corresponding profile belonged” and was “able to

identify [Appellee] by name only by repeating the testimonial

statement contained in Mr. Fisher’s report that directly linked

[Appellee] to the generated DNA profile.” Id. at 638-39.

Because the Government “failed to demonstrate that the DNA

evidence played an insignificant role” in the case, the CCA was

not convinced beyond a reasonable doubt that Mr. Davenport’s

presentation of the evidence was harmless. Id. at 641.

III. DISCUSSION

The Sixth Amendment prohibits the admission of “testimonial

statements of a witness who did not appear at trial,” unless the

witness is “unavailable to testify, and the defendant had had a

prior opportunity for cross-examination.” Crawford v.

Washington, 541 U.S. 36, 53-54 (2004). Whether evidence is

testimonial hearsay is a question of law reviewed de novo.

United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013). We

review the military judge’s ruling on a motion to exclude

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evidence for an abuse of discretion, “consider[ing] the evidence

in the light most favorable to the prevailing party.”4 Reister,

44 M.J. at 413 (internal quotation marks omitted).

Additionally, this Court will not overturn the CCA’s factual

findings unless they are clearly erroneous or unsupported by the

record. United States v. Teffeau, 58 M.J. 62, 66-67 (C.A.A.F.

2003) (citing United States v. Tollinchi, 54 M.J. 80, 82

(C.A.A.F. 2000)).

A.

“[T]he principal evil at which the Confrontation Clause was

directed was the civil-law mode of criminal procedure, and

particularly its use of ex parte examinations as evidence

against the accused.” Crawford, 541 U.S. at 50. The

Confrontation Clause thus protects defendants by excluding the

introduction of “hearsay” that is “testimonial,” the equivalent

of an ex parte examination. Id. at 51. Relevant to this case,

determining whether an expert witness’s testimony has violated

4
The CCA is required to apply the same deferential standard when
reviewing a military judge’s ruling on a motion to suppress.
United States v. Kitts, 43 M.J. 23, 28 (C.A.A.F. 1995) (standard
applies “on appeal” generally). However, by focusing its
analysis on Mr. Davenport’s trial testimony as it related to the
Final Report, Katso, 73 M.J. at 637-40, the CCA did not give
adequate deference to the military judge’s findings of fact or
consider the evidence supporting the ruling “in the light most
favorable to the prevailing party.” United States v. Reister,
44 M.J. 409, 413 (C.A.A.F. 1996) (internal quotation marks
omitted).

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the Confrontation Clause requires asking two questions: First,

did the expert’s testimony rely in some way on out-of-court

statements that were themselves testimonial? Id. at 51-52.

Second, if so, was the expert’s testimony nonetheless admissible

because he reached his own conclusions based on knowledge of the

underlying data and facts, such that the expert himself, not the

out-of-court declarant, was the “witness[] against [Appellee]”

under the Sixth Amendment? U.S. Const. amend. VI; see Blazier

II, 69 M.J. at 224-25; Crawford, 541 U.S. at 44. We turn to

these two questions in order.5

B.

This Court has already delineated the boundary between

testimonial and nontestimonial statements in detail. “[A]

statement is testimonial if ‘made under circumstances which

would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.’” United

States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (quoting

United States v. Blazier (Blazier I), 68 M.J. 439, 442 (C.A.A.F.

2010)); see Crawford, 541 U.S. at 51-52; Tearman, 72 M.J. at 58.

5
This case illustrates the gatekeeping role that military judges
play, not only to ensure that expert testimony is reliable, but
also to evaluate whether an expert’s conclusions rely in part on
testimonial hearsay, and, if so, whether the expert undertook
sufficient independent analysis to render his own opinions as
defined in Blazier II. 69 M.J. at 224-25; cf. Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).

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In making this determination, this Court has asked whether it

would “be reasonably foreseeable to an objective person that the

purpose of any individual statement . . . is evidentiary,”

considering the formality of the statement as well as the

knowledge of the declarant. Tearman, 72 M.J. at 58 (citation

and internal quotation marks omitted); compare id., 72 M.J. at

59-61 (chain of custody documents and internal review worksheets

were not testimonial, in part because an objective witness would

reasonably believe that the documents were filled out for

“internal control, not to create evidence” and because they

“lack[ed] any indicia of formality or solemnity”), with Sweeney,

70 M.J. at 299, 304 (a signed memorandum reporting the results

of a drug and a signed, “formal, affidavit-like” document

certifying the integrity of the sample and compliance with

protocol were testimonial), and Blazier I, 68 M.J. at 440, 443

(signed declarations served an “evidentiary purpose” because

they “summarize[d] and clearly set forth [an] ‘accusation,’” and

were generated in response to a command request).

As detailed more fully below, many of the out-of-court data

and “statements” relied upon by Mr. Davenport in reaching his

conclusion were not testimonial. The case file -- containing

the AFOSI documents, the computer-generated raw data, and Mr.

Fisher’s handwritten notes, including his documentation of the

conditions of the samples upon arrival and quality control

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measures -- is not in the record. However, Mr. Davenport’s

testimony makes clear that he reviewed all such documents.

Nothing suggests that the AFOSI documents, which appear to

primarily serve a chain of custody function, see supra note 1,

were testimonial, or that the computer-generated raw data was

either a statement or testimonial. See Tearman, 72 M.J. at 61;

Sweeney, 70 M.J. at 305. Nor is there any indication that Mr.

Fisher’s notes or his other lab results that underlay the Final

Report were signed, certified anything, bore indicia of

formality, or that Mr. Fisher expected them to be used at trial.

Moreover, the CCA’s “finding” that Mr. Davenport was “able

to identify [Appellee] by name only by repeating the testimonial

statement contained in Mr. Fisher’s report that directly linked

[Appellee] to the generated DNA profile,” Katso, 73 M.J. at 639

(emphasis added), was clearly erroneous and is unsupported by

the record. See Teffeau, 58 M.J. at 66-67; Kitts, 43 M.J. at

28; see also United States v. Piolunek, 74 M.J. 107, 110 n.3

(C.A.A.F. 2015). Rather, the record indicates that Mr.

Davenport learned the names of the parties the same way Mr.

Fisher did -- through the underlying data in the case file,

including the forms submitted by AFOSI. See supra note 1. The

Confrontation Clause does not require either Mr. Fisher or Mr.

Davenport to personally shadow the evidence from its collection

to USACIL in order to opine that it is what it purports to be

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and was collected from the persons indicated on the forms.

Furthermore, both Mr. Fisher and Mr. Davenport were in a

position to testify as to whether lab procedures were followed

in this regard.

In sum, Mr. Davenport’s statements regarding proper

testing, receipt, inventory, and analysis of the evidence, as

well as his identification of the parties, relied on

nontestimonial items in the case file.6 This testimony was

therefore admissible.

The Final Report, which served as a consolidated and

conclusory summary of Mr. Fisher’s analysis, presents a more

complicated problem, since, while it does not contain a formal

certification, the record indicates that Mr. Fisher knew

Appellee was a suspect in a sexual assault and that the Final

Report would be “made official and sent to the agent in the

case.” This problem is best resolved by assuming, arguendo,

that the Final Report itself was testimonial, though based on

evidence that was not testimonial, and that Mr. Davenport’s

testimony regarding the results of the serology exam and the DNA

analysis may have relied in part on the Final Report (since he

6
Moreover, Mr. Davenport relied on his own analysis of the data
to rule out certain mistakes, such as contamination, that would
produce unusual or illogical results. For example, Mr.
Davenport testified that had the swabs from the victim been
contaminated with the known samples from Appellee, he would have
noticed a male non-semen DNA profile on the swabs.

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had to conduct the technical review of it) as well as the

evidence that underlay it. From there, we proceed to the

question whether, given those assumptions, Mr. Davenport’s

opinion was admissible despite its partial reliance on

testimonial hearsay that was not itself introduced or repeated

at trial.

C.

To determine whether the portions of Mr. Davenport’s

testimony that may have been based in part on testimonial

hearsay should have been admitted, we apply this Court’s

precedent, from Blazier I through Tearman. Under that line of

cases, we ask whether Mr. Davenport had sufficient personal

knowledge to reach an independent conclusion as to the object of

his testimony and his expert opinion. Blazier II, 69 M.J. at

224-25. Framed another way, this Court queries whether Mr.

Davenport was a “witness[] against” Appellee, the type of

declarant Appellee had the constitutional right to cross-

examine, or a mere “conduit” for another “witness[],” namely,

Mr. Fisher. U.S. Const. amend. VI; Blazier II, 69 M.J. at 225;

see Crawford, 541 U.S. at 44 (recounting Sir Walter Raleigh’s

demand that Lord Cobham, who had implicated Raleigh in a treason

plot, be compelled to appear in person at trial to testify

against him). We review Supreme Court precedent and undertake a

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highly fact-specific inquiry to determine that Mr. Davenport was

a “witness[]” rather than a “conduit.”

i.

The Supreme Court has repeatedly applied the Confrontation

Clause in the context of expert forensic analysis to determine

whether evidence admitted at trial repeated testimonial hearsay,

but it has not faced a situation identical to the one before us.

Mr. Davenport, an expert with detailed knowledge of the results

he presented, delivered testimony that does not easily fit into

the Supreme Court’s framework. However, reviewing those

Confrontation Clause cases most directly related to the facts of

this case convinces us that no Supreme Court precedent bars the

application of the principles established in Blazier II or

warrants concluding that Mr. Davenport’s testimony simply

repeated testimonial hearsay by an out-of-court declarant. We

discuss each case in turn.

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308, 329

(2009), the Supreme Court held that the petitioner’s right to

confrontation was violated when the prosecution submitted

“certificates of analysis” into evidence without relying on the

testimony of an expert witness. In Appellee’s case, the

Government did not introduce the Final Report. In Melendez-

Diaz, the Supreme Court held that the analysts who prepared the

certificates were “witnesses,” 557 U.S. at 311 (internal

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quotation marks omitted), who, through the certificates, made

only a “bare-bones statement” and did not provide the petitioner

the opportunity to learn about the tests performed or the

analysts’ ability to interpret those tests. Id. at 320. In

this case, Mr. Davenport’s testimony at trial and knowledge of

the underlying facts provided Appellee ample opportunity to

ascertain “what tests [Mr. Fisher] performed, whether those

tests were routine,” and whether Mr. Davenport had the requisite

“judgment” and “skills” to interpret the results. See id.

In Bullcoming, 131 S. Ct. at 2711-12, the trial court

allowed the state to introduce a certified report attesting to

the petitioner’s blood alcohol content through the testimony of

an expert witness who had no knowledge about the analysis at

all. The Supreme Court reversed, holding that the “surrogate

testimony” of the expert, “who had neither observed nor reviewed

[the] analysis,” could not “convey what [the scientist] knew or

observed about the events his certification concerned.” Id. at

2712, 2715. Several concerns with the testimony led the Supreme

Court to conclude that the expert had provided “surrogate”

testimony: the expert could not describe “the particular test

and testing process [the analyst] employed,” id. at 2715; could

not “expose any lapses or lies on the . . . analyst’s part,”

id.; nor could he explain why the analyst “had been placed on

unpaid leave.” Id. Moreover, the State did not “assert

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United States v. Katso, 14-5008/AF

that . . . [the expert] had any independent opinion concerning

[the results].” Id. at 2716 (internal quotation marks omitted).

Here, by contrast, no certified report was introduced; Mr.

Davenport described, based on his personal knowledge, the tests

and testing processes used, and the means for discerning

protocol lapses. Unlike the analyst in Bullcoming, 131 S. Ct.

at 2715, Mr. Fisher had not been placed on unpaid leave for

unexplained reasons; rather, Mr. Fisher missed the trial in

order to be with his ill mother, circumstances that indicate

neither incompetence on Mr. Fisher’s part nor a ploy by the

Government to gain a tactical advantage. Mr. Davenport

confirmed that he had formed and was testifying to his

“independent opinion,” providing opportunity for cross-

examination. Moreover, Mr. Davenport’s extensive review likely

places this case well within Justice Sotomayor’s hypothetical.

See id. at 2722 (Sotomayor, J., concurring in part) (the

testimony might have been admissible if the expert had some

“degree of involvement” in the testing process, as when “the

person testifying is a supervisor, reviewer, or someone else

with a personal, albeit limited, connection to the test at

issue”).

In Williams, 132 S. Ct. at 2230, the expert witness

testified that she compared a DNA profile known to be from the

petitioner to a DNA profile from a swab from the victim. The

22
United States v. Katso, 14-5008/AF

scientist who generated the known profile also testified. Id.

at 2229. However, the DNA profile from the victim’s swab was

produced by an outside laboratory, Cellmark, and nobody from

Cellmark testified at trial. Id. The expert “trusted Cellmark

to do reliable work because it was an accredited lab,” but “had

not seen any of the calibrations or work that Cellmark had

done.” Id. at 2230. The plurality decided that the testimony

regarding the underlying report was not presented for the “truth

of the matter asserted,” but rather as a basis for the expert’s

opinion. Id. at 2236-37, 2240. Five Justices disagreed with

this conclusion. Id. at 2258-59 (Thomas, J., concurring in the

judgment); id. at 2268-69 (Kagan, J., dissenting, in which

Scalia, Ginsburg, and Sotomayor, JJ., joined).

In this case, Mr. Davenport saw all of the calibrations and

work underlying the tests, and his close scrutiny and analysis

of the results, comparison of the DNA profiles, and rerunning of

the statistical analysis differed remarkably from the Williams

expert’s bald reliance on the Cellmark report, and seems to

satisfy the concerns expressed by Justices Thomas and Kagan.

See id. at 2258 (Thomas, J., concurring in the judgment)

(explaining that the value of the expert’s testimony “depended

on the truth” of the out-of-court statement on which the expert

relied); id. at 2270 (Kagan, J., dissenting, in which Scalia,

Ginsburg, and Sotomayor, JJ., joined) (“[The expert] became just

23
United States v. Katso, 14-5008/AF

like the surrogate witness in Bullcoming -- a person knowing

nothing about ‘the particular test and testing process,’ but

vouching for them regardless.” (quoting Bullcoming, 131 S. Ct.

at 2715)). Whatever the differences between Williams and this

case may be, the lack of majority support in Williams “for any

point but the result” means that Williams does not alter “this

Court’s Confrontation Clause jurisprudence.” Tearman, 72 M.J.

at 59 n.6 (dictum).

Thus, although the Supreme Court has not provided a

workable majority rule that would resolve this case, the Court’s

precedent does not dictate the conclusion that Appellee lacked

the opportunity to confront a witness against him.

ii.

In the absence of clear guidance from the Supreme Court, we

are bound, within the constraints discernible from controlling

precedent, to provide a clear rule for the military justice

system. Fortunately, we already have a rule. This Court’s

precedent makes clear that even when an expert relies in part

upon “statements” by an out-of-court declarant, the

admissibility of the expert’s opinion hinges on the degree of

independent analysis the expert undertook in order to arrive at

that opinion. Blazier II, 69 M.J. at 224-25.

On the one hand, experts may not “act as a conduit for

repeating testimonial hearsay,” id. at 225, circumventing the

24
United States v. Katso, 14-5008/AF

Sixth Amendment by acting as a “transmitter” instead of

communicating an “independent judgment.” Id. (quoting United

States v. Ayala, 601 F.3d 256, 275 (4th Cir. 2010)). For this

reason, the testimony of an expert witness who repeated

statements in inadmissible cover memoranda violated the

Confrontation Clause. Id. at 226. The witness should have

“proffer[ed] a proper expert opinion based on machine-generated

data and calibration charts, his knowledge, education, and

experience and his review of the drug testing reports alone.”

Id.; see also Sweeney, 70 M.J. at 304 (an expert’s testimony

that a document “showed the presence of cocaine and codeine” was

erroneously admitted). On the other hand, “[a]n expert witness

need not necessarily have personally performed a forensic test

in order to review and interpret the results and data of that

test.” Blazier II, 69 M.J. at 224-25; cf. M.R.E. 703 (“[F]acts

or data . . . upon which an expert bases an opinion . . . . need

not be admissible.”). Experts may “review and rely upon the

work of others, including laboratory testing conducted by

others, so long as they reach their own opinions in conformance

with evidentiary rules regarding expert opinions.” Blazier II,

69 M.J. at 224. That is precisely what happened here.

This rule is not inconsistent with Williams or the

precedent applied by the Williams plurality or dissenters. See

supra Part III.C.i. Moreover, as Justice Kagan noted in her

25
United States v. Katso, 14-5008/AF

dissent, the “clear rule” established in prior cases is “clear

no longer,” since “[t]he five Justices who control[led] the

outcome of [Williams] agree[d] on very little,” and “left

significant confusion in their wake.” Williams, 132 S. Ct. at

2277 (Kagan, J., dissenting, in which Scalia, Ginsburg, and

Sotomayor, JJ., joined). Nonetheless, two things are clear:

first, none of the decisions of the Supreme Court have purported

to jettison expert testimony in toto; and, second, neither have

they suggested that each individual who touched the evidence or

was involved in its analysis must testify.

And, since Williams, other courts have also focused on the

extent to which an expert formed an independent opinion to

determine whether the testimony was permissible in light of

Crawford, as we did in Blazier II. See, e.g., United States v.

Vera, 770 F.3d 1232, 1239-40 (9th Cir. 2014) (an expert’s

opinion regarding a gang’s control over narcotics trafficking

was admissible because the combination of the expert’s

knowledge, even if gleaned from testimonial statements, and his

own observations turned his opinion into “an original product

that could have been tested through cross-examination” (internal

quotation marks omitted)); Leger v. State, 732 S.E.2d 53, 60

(Ga. 2012) (a laboratory supervisor’s testimony was admissible

because her involvement in the testing gave her a “significant

personal connection to the test”); State v. Roach, 95 A.3d 683,

26
United States v. Katso, 14-5008/AF

688, 697 (N.J. 2014) (an expert was permitted to testify

regarding the comparison between a DNA profile she generated and

a profile generated by another analyst because she “used her

scientific expertise and knowledge to independently review and

analyze” the analyst’s data, and “satisf[ied] herself of the

reliability of the results”); State v. Lopez, 45 A.3d 1, 13-14

(R.I. 2012) (an expert’s opinion was admissible because he was

“integrally involved” in the testing process, formulating his

own conclusions rather than “act[ing] as a conduit of the

opinions of, or parrot[ing] the data produced by, other[s]”).7

7
See also Hingle v. State, 153 So.3d 659, 664-65 (Miss. 2014)
(the testimony of a witness who reviewed the testing analyst’s
report was admissible because the reviewer had “intimate
knowledge” of the testing, and reached an “independent
conclusion”); State v. Ortiz-Zape, 743 S.E.2d 156, 161 (N.C.
2013) (an expert can provide testimony that relies on out-of-
court statements so long as the expert does not “merely repeat[]
out-of-court statements”). Some courts eschew this rule,
however, and find a Confrontation Clause violation even if the
expert had a high degree of involvement in the testing process
or thoughtfully formulated her own conclusions. See, e.g.,
United States v. Turner, 709 F.3d 1187, 1188-89, 1193 (7th Cir.
2013) (a supervisor who reviewed an analyst’s notes, data, and
report violated the Confrontation Clause when she testified to
the analyst’s procedures and conclusions, although the error was
harmless beyond a reasonable doubt); Martin v. State, 60 A.3d
1100, 1101, 1108 (Del. 2013) (the testimony of a laboratory
manager with knowledge of lab procedures who reviewed an
analyst’s test results and prepared her own report violated the
Confrontation Clause because the manager relied on the analyst’s
representations in reaching her conclusions); Jenkins v. United
States, 75 A.3d 174, 189-90 (D.C. 2013) (a supervisor who
assessed whether two DNA profiles matched based on his review of
the work of biologists and technicians in his lab “relayed
hearsay” when he repeated some of his subordinates’ observations

27
United States v. Katso, 14-5008/AF

iii.

Even if Mr. Davenport’s in-court statements that semen or

DNA were found on the evidentiary swabs and that certain DNA

samples matched each other were based in part on the Final

Report, they were admissible. Mr. Davenport performed an

extensive independent review of the case file, upon which the

Final Report was based, during which he determined that Mr.

Fisher took the prescribed quality control measures, that no

accidents occurred, and that the results were logically

consistent. He compared the ECD numbers on the Final Report to

the numeric identifiers found elsewhere in the case file to

check that Mr. Fisher had analyzed the correct samples. He

reanalyzed the DNA profile data that Mr. Fisher generated to

verify the matches that Mr. Fisher reported and recalculated the

frequency statistics. This extensive review process, explored

in full before the military judge during the hearing on the

motion in limine, allowed Mr. Davenport to “satisfy [him]self of

the reliability of the results.” See Roach, 95 A.3d at 697. In

sum, Mr. Davenport presented his own expert opinion at trial,

which he formed as a result of his independent review, and

clearly conveyed the basis for his conclusions during the

hearing on the motion in limine.

and conclusions, including the conclusion that the evidence
contained the appellant’s DNA).

28
United States v. Katso, 14-5008/AF

That Mr. Davenport did not himself perform aspects of the

tests “goes to the weight, rather than to the admissibility” of

his opinion. Blazier II, 69 M.J. at 225. And given defense

counsel’s limited cross-examination of Mr. Davenport at trial,

we decline to assume that they believed that there were grounds

to attack the tests he did not personally perform.

D.

We conclude that this case does not implicate the concern

described in Crawford, as Appellee was not deprived of the

opportunity to question and confront an opposing witness. 541

U.S. at 50-51. Mr. Davenport’s conclusions regarding the

presence of semen and identification of DNA were his own. Even

if those conclusions may have derived in part from the Final

Report, Mr. Davenport’s reliance on other, nontestimonial

factual bases -- which also served as the foundation for the

Final Report -- allowed him to render his own opinion. The

witness against Appellee was not Mr. Fisher or the Final Report,

but Mr. Davenport, who appeared in person at trial. Appellee

had the opportunity to cross-examine Mr. Davenport about his

review of the case file and his expert opinion, and, generally,

to “subject [the testimony] to adversarial testing.” Id. at 43.

Having thus parsed Mr. Davenport’s testimony, we conclude

that it was admissible. Therefore, the military judge did not

abuse his discretion in denying Appellee’s motion in limine, nor

29
United States v. Katso, 14-5008/AF

did Mr. Davenport’s trial testimony violate Appellee’s right to

confrontation.

IV. DECISION

The decision of the United States Air Force Court of

Criminal Appeals is reversed.8 The record is returned to the

Judge Advocate General of the Air Force for remand to the CCA

for further proceedings under Article 66, UCMJ, 10 U.S.C. § 866

(2012).

8
Appellee’s motion to attach is denied, and Appellee’s motion
for appropriate relief in the nature of directing specific
action upon a remand to the lower court is denied without
prejudice to his right to request such relief from that court.
Appellant’s motion to supplement the record is also denied
without prejudice.

30
United States v. Katso, No. 14-5008/AF

OHLSON, Judge (dissenting):

To be clear, I do not disagree with much of the analysis

and many of the conclusions contained in the majority opinion.

Rather, I diverge from the majority’s view of this case in

regard to just one point -- but it is a point which I believe

proves fatal to the Government’s position. Specifically, I

believe Appellee had a Sixth Amendment right to confront the

initial laboratory technician, Mr. Fisher, regarding whether he

precisely followed the required protocols for preparing the DNA

samples, and thus whether he may have contaminated the

evidentiary DNA sample with the known DNA sample. Because

Appellee was not afforded this opportunity, and because I find

an insufficient basis to conclude that the Government has met

its burden of demonstrating that this constitutional error was

harmless beyond a reasonable doubt, I conclude that Appellee’s

conviction must be reversed. Accordingly, I respectfully

dissent.

It would be an understatement, indeed, to say that the

Supreme Court’s decision in Williams v. Illinois, 132 S. Ct.

2221 (2012), where no single line of reasoning garnered a

majority of the justices’ votes, has muddled the boundaries of

an accused’s Sixth Amendment right “to be confronted with the

witnesses against him.” U.S. Const. amend. VI (“In all criminal

prosecutions, the accused shall enjoy the right . . . to be
United States v. Katso, No. 14-5008/AF

confronted with the witnesses against him . . . .”). This is

particularly true in those instances where, as here, forensic

results are a central point at trial, and questions arise

pursuant to the Confrontation Clause regarding who must testify

about the tests that were performed, the procedures that were

followed, and the results that were obtained. Indeed, the

confusion that Williams has sown seems to have consigned

appellate courts such as ours to now view the issues that arise

in these types of Confrontation Clause cases as “through a

glass, darkly.” Nevertheless, I conclude that by analyzing

other applicable precedents of the Supreme Court, as well as the

jurisprudence of our own Court, answers to these questions may

ultimately be discerned.

The majority does a thorough job of reciting the facts in

this case, and therefore I will not repeat them in toto.

Instead, I merely note the following points which I view as

essential to the proper understanding and analysis of the issue

before us.

First, Mr. Fisher handled and prepared for testing both the

material that contained the evidentiary DNA samples and the

material that contained the known DNA samples. As a result,

there was a potential for contamination of the two samples.

This potential was significantly increased if Mr. Fisher did not

precisely follow the laboratory’s protocol when handling and

2
United States v. Katso, No. 14-5008/AF

preparing the samples, and such contamination would render

meaningless any subsequent analysis.

Second, although Mr. Davenport compared the data from the

two DNA samples that previously had been prepared by Mr. Fisher,

he did not handle the original evidence that was submitted to

the laboratory and did not independently prepare his own DNA

samples for testing. Moreover, Mr. Davenport did not observe

Mr. Fisher’s handling of the original evidence, nor did he

observe Mr. Fisher’s preparation of these samples. Accordingly,

Mr. Davenport’s “verification” that Mr. Fisher followed the

required protocol consisted of reviewing Mr. Fisher’s written

statements in the file in which Mr. Fisher asserted that he had

done so.

Third, in motions practice, Appellee not only sought to

require Mr. Fisher’s testimony at the court-martial, he also

specifically cited as a basis for this demand his concern about

potential contamination of the DNA samples. Appellee presumably

wanted to question Mr. Fisher about the precise steps he took in

preparing the samples, as well as to probe the credibility and

reliability of this witness. As Justice Kagan noted in her

dissenting opinion in Williams: “[A] defendant may wish to ask

the analyst a variety of questions: How much experience do you

have? Have you ever made mistakes in the past? Did you test

the right sample? Use the right procedures? Contaminate the

3
United States v. Katso, No. 14-5008/AF

sample in any way?” 132 S. Ct. at 2275 (Kagan, J., dissenting,

in which Scalia, Ginsburg, and Sotomayor, JJ., joined).

Fourth, despite Appellee’s articulation of his concern

about contamination, the military judge denied Appellee the

opportunity to confront Mr. Fisher at trial, essentially ruling

that Mr. Davenport was an adequate substitute for Mr. Fisher and

that his appearance satisfied the requirements of the

Confrontation Clause.

Fifth, when Mr. Davenport appeared before the court-

martial, he did not testify that if Mr. Fisher followed all of

the required protocols and if Mr. Fisher did not commit any

errors or mistakes, then, in his opinion, the DNA samples were

properly handled and prepared and the results of the testing

could be relied upon. Rather, Mr. Davenport merely assumed,

without saying so, that Mr. Fisher’s written assertion in the

file that he had not committed any mistakes or errors was true,

and then testified before the panel members that the proper

protocols were followed and that his own independent examination

of the computer files relating to the samples prepared by Mr.

Fisher demonstrated that the evidentiary sample matched the

known sample.

In turning to my analysis of these facts and the

applicable law, I first must emphasize that I do not contest the

proposition that an appropriately credentialed individual may

4
United States v. Katso, No. 14-5008/AF

give expert testimony regarding data produced by another

laboratory technician. United States v. Blazier (Blazier II),

69 M.J. 218, 222 (C.A.A.F. 2010) (“[A]n expert may, consistent

with the Confrontation Clause and the rules of evidence, (1)

rely on, repeat, or interpret admissible and nonhearsay machine-

generated printouts of machine-generated data, and/or (2) rely

on, but not repeat, testimonial hearsay that is otherwise an

appropriate basis for an expert opinion, so long as the expert

opinion arrived at is the expert’s own.” (citations omitted)).

Further, I do not seek to suggest that every individual who

touches DNA evidence as it progresses from the crime scene to

the courthouse must testify at trial. See Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 311 n.1 (2009). Not at all.

On the other hand, however, I also note that it is a simple

fact that “[f]orensic evidence is not uniquely immune from the

risk of manipulation [and mistake].” Id. at 318. Therefore, a

defendant’s right to confront and cross-examine laboratory

technicians regarding the steps they took in developing this

forensic evidence may not be summarily curtailed merely because

science and statistics are involved. To the contrary, an

accused has the right to ask “questions designed to reveal

whether [a lab analyst’s] incompetence . . . or dishonesty”

tainted the forensic results. Bullcoming v. New Mexico, 131 S.

5
United States v. Katso, No. 14-5008/AF

Ct. 2705, 2715 (2011). In the instant case, Appellee was not

afforded that right.

Mr. Davenport was an expert on, among other issues, what

the laboratory protocols were in a case such as this one.

However, he was not an expert on the issue of whether Mr. Fisher

unerringly followed those protocols. Accordingly, Mr. Davenport

could use his expertise to examine and testify about such issues

as the efficacy of the laboratory protocols, whether there were

irregularities between the samples that were tested, whether the

two samples matched one another, and the statistical likelihood

that Appellee was the source of the evidentiary DNA. However,

despite his expertise on these issues, in determining whether

Mr. Fisher actually followed the protocols that were required of

laboratory technicians, the underlying facts in this case show

that Mr. Davenport relied on Mr. Fisher’s out-of-court written

assurances that he had done so. This was testimonial hearsay.

See Bullcoming, 131 S. Ct. at 2715 (stating that surrogate could

not expose any lapses or lies on the certifying analyst’s part).

In analyzing this concern, I first note that Mr. Fisher’s

routine written assurances in the file that he properly

performed all the required procedures and did not commit any

mistakes or errors did not carry with them any particular

indicia of reliability. But more importantly, I further note

that “‘reliability’ is no substitute for [the] right of

6
United States v. Katso, No. 14-5008/AF

confrontation.” Blazier II, 69 M.J. at 223. As the Supreme

Court explained in Crawford v. Washington, “Where testimonial

statements are involved, . . . . [the Confrontation Clause]

commands, not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of

cross-examination.” 541 U.S. 36, 61 (2004).

Second, as pointed out by the majority, I acknowledge that

these written assurances, along with Mr. Fisher’s other notes,

the test results, and the written report, were not admitted into

evidence, and therefore this case does not squarely present the

type of Confrontation Clause issues that the Supreme Court

addressed in Bullcoming and Melendez-Diaz. Nevertheless, in my

view, Mr. Davenport effectively repeated the out-of-court

statements made by Mr. Fisher when he testified that Mr. Fisher

had followed standard procedures in preparing the DNA samples --

a putative fact about which Mr. Davenport had no independent

knowledge. Moreover, when the military judge denied Appellee’s

request to have Mr. Fisher testify, the military judge

effectively rendered impervious to cross-examination and attack

the issue of whether Mr. Fisher contaminated the evidentiary

sample. See Bullcoming, 131 S. Ct. at 2715 n.7. (an accused

has a right to question a laboratory technician about his

“proficiency, the care he took in performing his work, and his

veracity”).

7
United States v. Katso, No. 14-5008/AF

Accordingly, I conclude that Justice Kagan’s dissenting

opinion in Williams, which managed to garner the votes of four

justices despite the highly fractured nature of the Court,

neatly and succinctly captures the essence of what I believe to

be still-controlling precedent in regard to the required

analysis of cases such as the one before us:

Under our Confrontation Clause precedents, this
is an open-and-shut case. The State of Illinois
prosecuted Sandy Williams for rape based in part on a
DNA profile created in Cellmark’s laboratory. Yet the
State did not give Williams a chance to question the
analyst who produced that evidence. Instead, the
prosecution introduced the results of Cellmark’s
testing through an expert witness who had no idea how
they were generated. That approach -- no less
(perhaps more) than the confrontation-free methods of
presenting forensic evidence we have formerly banned -
- deprived Williams of his Sixth Amendment right to
“confron[t] . . . the witnesses against him.”

Williams, 132 S. Ct. at 2265 (Kagan, J., dissenting, in which

Scalia, Ginsburg, and Sotomayor, JJ., joined) (alteration in

original).

Moreover, I note that there are aspects of the instant case

that differ from the facts in the Williams case and, in my view,

these differences serve to make the Confrontation Clause problem

more acute here. First, in Williams the plurality seemed to

place significant emphasis on the fact that the purpose of the

laboratory DNA profile was not “to create evidence for use at

trial.” Id. at 2243. Justice Alito noted that at the time

Cellmark analyzed the DNA sample, no one had been identified as

8
United States v. Katso, No. 14-5008/AF

the possible perpetrator of the offense and it was unclear that

anyone would ever be arrested. Id. at 2243-44. Not so here.

Mr. Fisher knew from the outset that an accused had been

identified, and thus he knew that when he wrote his notes and

conducted his tests, he likely was “creat[ing] evidence for use

at trial.” Id. at 2245. This fact places Mr. Fisher’s

statements “squarely within the heartland of Confrontation

Clause jurisprudence.” United States v. Turner, 709 F.3d 1187,

1193 (7th Cir. 2013).

Second, this was a court-martial with panel members rather

than a military judge-alone trial. By the plurality’s own

reckoning in Williams, this increased the chances that the trier

of fact relied on the out-of-court statements implicit in Mr.

Davenport’s testimony for their truth. See Williams, 132 S. Ct.

at 2236 (“The dissent’s argument would have force if petitioner

had elected to have a jury trial.”).

Although the Government elicited testimonial hearsay from

Mr. Davenport, this does not end my Confrontation Clause

inquiry. I next turn my attention to the Supreme Court’s

decision in Crawford where, as the majority notes, the Court

held that a prosecutor’s use of testimonial hearsay violates the

Confrontation Clause -- unless the declarant is unavailable and

the defendant had a prior opportunity to cross-examine the

declarant. 541 U.S. at 59. I concede that this provides a

9
United States v. Katso, No. 14-5008/AF

significant exception to the Confrontation Clause in particular

instances. However, I do not believe that the holding in

Crawford is applicable to the instant case because I am not

convinced that the record of trial supports the military judge’s

finding that Mr. Fisher was unavailable to testify.

First, the military judge noted that based on

communications with counsel, Mr. Fisher himself estimated that

he would be available for witness interviews on “approximately

Tuesday, 3 May 2011.” Because Appellee’s court-martial began on

May 3, 2011, and continued through May 6, 2011, Mr. Fisher’s own

estimation of his schedule made him available for questioning.

Further, the military judge found as fact that Mr. Fisher would

be “unable to travel to testify at the court-martial until 5 May

11 at the earliest.” Because the record reflects that Mr.

Davenport, Mr. Fisher’s substitute, was not called to testify in

this case until the evening of May 5, the military judge’s own

findings indicate that Mr. Fisher likely was available to

testify. Accordingly, I conclude that there was a Confrontation

Clause violation under Crawford because Mr. Fisher should not

have been considered unavailable to testify at Appellee’s trial.

And finally, I find that the DNA evidence was a central and

integral element of the Government’s case against Appellee, and

that the Government was unable to demonstrate that the

constitutional error pertaining to that evidence was harmless

10
United States v. Katso, No. 14-5008/AF

beyond a reasonable doubt. Stated differently, I find that

“‘there is a reasonable possibility that the evidence complained

of might have contributed to the conviction.’” Chapman v.

California, 386 U.S. 18, 23 (1967) (quoting Fahy v. Connecticut,

375 U.S. 85, 86-87 (1963)). Accordingly, I conclude that

Appellee’s conviction must be reversed, and I respectfully

dissent.

11