specially concurring:
I agree that defendant’s convictions and sentences must be affirmed. With respect to defendant’s appeal in which he raises several evidentiary challenges, I concur in the court’s judgment for reasons other than those expressed in its opinion. With respect to the State’s cross-appeal, I join in that portion of the opinion reversing the appellate court’s modification of defendant’s sentence.
My concerns in this case are based on the lack of foundation for Sandra Lambatos’ testimony. Lambatos was employed at the Illinois State Police Crime Laboratory at the time defendant’s DNA was connected to the sexual assault at issue. Lambatos testified that the male DNA profile generated from the victim’s vaginal swabs matched the DNA generated from a known sample of defendant’s blood. Lambatos also testified that the statistical probabilities for such a match were astronomical. The crux of defendant’s argument is that Lambatos’ opinion was based on a DNA profile that was generated by Cellmark Laboratory. Due to backlogs at the Illinois State Police Lab at the time of the testing, that lab often sent blood and semen samples to Cellmark, located in Maryland, in order for DNA material to be extracted from the samples. Cellmark would then amplify the extracted DNA material in order to produce a profile. The profile is thereafter used to produce a chart for comparison purposes. As defendant correctly notes, Lambatos did not conduct any of the scientific procedures used at Cellmark to generate the male DNA profile from the victim’s vaginal swabs and she had no personal knowledge of any of the conditions at the lab when the profile was generated.
The court dismisses defendant’s contentions based on Lambatos’ testimony that “because Cellmark was an accredited laboratory, calibrations, internal proficiencies, and controls had to be in place for the DNA analysis to be completed in this case.” 238 111. 2d at 138. The court concludes that because witnesses like Lambatos are permitted in Illinois to give an opinion without disclosing the facts or data upon which the expert bases her opinion, such testimony is sufficient. 238 111. 2d at 137. In other words, Lambatos’ foundational testimony was based upon data reasonably relied upon by other experts in her field, and defendant’s appellate concerns relate to the weight of the evidence, not its admissibility. 238 Ill. 2d at 137.
An expert may certainly base her opinion on information reasonably relied upon by other experts in the field. See, e.g., Wilson v. Clark, 84 Ill. 2d 186 (1981). But that was not what occurred here. Strikingly absent from Lambatos’ testimony is any information about Cellmark’s extraction and amplification processes in generating the profile that was used to produce the data upon which she relied in her making comparisons. Lambatos’ “testing” in this case consisted of her own reading to match up the numbers generated on the computer charts, which was derived from Cellmark’s underlying scientific processes. What Lambatos failed to testify to during her examination was what occurred at Cellmark beginning from when Cellmark received the package containing the victim’s vaginal swabs and blood sample to when Cellmark analysts performed the extraction and amplification procedures. Instead, she speculated that because Cell-mark was accredited, “they would have to meet certain guidelines to perform DNA analysis for the Illinois State Police so all those calibrations and internal proficiencies and controls would have had to have been in place for them to perform the DNA analysis.”
Lambatos’ testimony on this point is insufficient. First, with respect to the fact of accreditation, Lambatos did not identify when or by whom Cellmark received its accreditation. Whether a laboratory is accredited is a fact that can be established without the need of an expert witness. Here, Lambatos’ testimony does not establish that Cellmark was accredited; rather, it was her opinion that the laboratory was accredited at the time it ran the tests. Further, Lambatos did not base her assumption that “certain guidelines *** would have had to have been in place” on sources such as the report of another expert, i.e., the written report of the technicians who generated the profile or even the lab’s logbook at the time the profile was generated. See United States v. Lawson, 653 F.2d 299, 301-02 (7th Cir. 1981) (allowing testifying psychiatrist to base opinion under Rule 703 on staff reports and defendant’s interviews with other physicians); O’Gee v. Dobbs Houses, Inc., 570 F.2d 1084, 1089 (2d Cir. 1978) (allowing physician expert to testify under Rule 703 as to the patient’s version of other doctors’ opinion because expert had reports of two doctors as well as a hospital report). Lambatos’ opinion regarding whether Cellmark followed proper guidelines at the time the DNA material was extracted and amplified was not based on anything other than her rank speculation that it “had to have been done” solely because Cellmark was an accredited lab.
While I do not believe that Lambatos is required to personally verify the protocols used by Cellmark to generate the DNA profile from the swab, she, at the very least, should be able to point to something concrete in order to give her opinion as to what protocols were used at the time the profile was generated. She did not. There was no testimony on which protocols were used. In fact, Lambatos admitted that Cellmark used procedures and standards that were different from those used by her own employer, the Illinois State Police Crime Laboratory. Although Lambatos stated that she personally “helped develop line proficiency tests to be administered to analysts at Cel[1]mark,” nothing in her testimony revealed that the analysts who performed the DNA extraction and amplification in this case had taken, let alone passed, the tests she had developed or that, when the tests were run, they were run according to the standards preferred by the Illinois State Police Lab.
The lack of any information regarding Cellmark’s generation of the male DNA profile from the victim’s vaginal swabs contrasts sharply with the testimony the State produced with respect to the DNA profile generated from defendant’s blood sample by Karen Kooi, upon which Lambatos also relied to read and match up the numbers on her chart. Kooi, an employee of the Illinois State Police Crime Lab at the time, testified as to the protocols she used to generate the DNA profile taken from defendant’s blood.5 Kooi further stated that she utilized “clean lab” techniques when she generated the profile.
This case, therefore, differs from People v. Sutherland, 223 Ill. 3d 187 (2006), upon which the court primarily relies in reaching its conclusion today. There, the witness in question was an employee of the laboratory which did the DNA analysis, who not only testified at trial, but who had also testified at the Frye hearing. Moreover, the defendant had received from the State, pursuant to Rule 417(b), extensive information including records reflecting compliance with quality control guidelines. Sutherland, 223 Ill. 2d at 280-81. In fact, even the defendant’s own DNA expert was able to testify from the records produced that the lab’s results were “clean.” Sutherland, 223 Ill. 2d at 282. These facts render Sutherland distinguishable.
Two cases from our appellate court support my point regarding foundation. In People v. Johnson, a panel of the First Division of the First District held that a sufficient foundation was established where the DNA expert, an actual employee of Cellmark, testified that although she did not personally perform any of the testing used to generate the male DNA profile from the sexual assault kit, she based her opinion on records used in the ordinary course of business. People v. Johnson, 389 Ill. App. 3d 618 (2009). In particular, the witness relied on a written Cellmark report, which indicated that 10 Cellmark analysts had been involved in the lab work in the case and that all the methods used, conclusions and results reached were to a reasonable degree of scientific certainty. Johnson, 389 Ill. App. 3d at 626-27. Another witness, who like Lambatos was employed by Illinois State Police, testified that he compared the Cellmark-generated male DNA profile to the DNA panel he had generated from saliva obtained from the defendant and concluded that they were a match. Like Lambatos, he testified as to the statistical probabilities of the match. In holding that an adequate foundation for Cellmark’s work had been established for the Cellmark witness, the court found it significant that the witness actually worked for Cell-mark, which was the lab that generated the DNA profile from the victim’s samples. Johnson, 389 Ill. App. 3d at 629-30. She also performed an independent review of the work to make sure all of the procedures done at the lab were followed correctly, which the court held was sufficient foundation upon which to partially base her assessment and conclusion. Johnson, 389 Ill. App. 3d at 630.1 note that the court stressed, in reaching its conclusion, that the foundational testimony was stronger than that in this case, specifically citing the Third Division’s opinion in this case. Johnson, 389 Ill. App. 3d at 629.
Similarly, in People v. Johnson, 394 Ill. App. 3d 1027 (2009), a panel from the Sixth Division of the First District held that a sufficient foundation was established where the DNA expert, again an actual employee of Cell-mark, testified not only about the proper procedures that were expected to be utilized at her lab, but that the case file indicated that those procedures had been followed with respect to the DNA profile in question. To reach this conclusion, the witness relied on the records of other Cellmark employees, which indicated that the proper procedures had been followed. Therefore, although the witness did not perform any of the testing, her testimony showed a sufficient foundation of Cellmark’s procedures and specifications upon which to partially base her assessment and conclusion. Johnson, 394 Ill. App. 3d at 1040. The court stressed that the foundation in the case was stronger than that found sufficient by the appellate court in this case.
Lambatos’ testimony is demonstrably different from the testimony in either of the Johnson opinions. Lambatos’ direct testimony was based on two documents offered into evidence by the State, which consisted of two shipping manifests from FedEx. One manifest showed that the victim’s vaginal swabs and blood standards were sent to Cellmark from the Illinois State Police Crime Laboratory on November 28, 2000, and were received by Cellmark on November 29, 2000. The second manifest showed that the victim’s samples were “sent back from Celmark [sic]” on April 3, 2001, along with samples from “other cases” that had nothing to do with the present case. Lambatos testified that she relied on these two pieces of evidence when she did the work in this case. I submit that these shipping manifests are not the kind of “facts or data” contemplated by this court in Wilson. Unlike the witnesses in the Johnson cases, Lambatos was not a Cellmark employee. She did not rely on the detailed type of reports that those witnesses relied upon. She did not know who performed the tests at Cellmark nor could she testify as to what protocols, if any, they followed. The shipping manifests, which are not enough to even establish a proper chain of custody once the samples reached their destination at Cellmark, certainly cannot establish whether a laboratory was “clean” or whether Lambatos’ protocols were actually followed.
By accepting Lambatos’ assumption that because Cellmark was accredited, the protocols she had personally developed for the lab to use were, in fact, used to generate the DNA profile, the court errs in finding that an adequate foundation was laid. The court relies on the fact that Lambatos used her expertise and professional judgment to compare the DNA profiles in this case. But the problem with this is that there was no foundation established for the DNA profile generated by Cellmark. Lambatos’ opinion that the DNA profile generated there matched defendant’s DNA profile does not change that fact. It is certainly the law that alleged infirmities in the performance of a test usually go to the weight of the evidence, not to its admissibility. 238 Ill. 2d at 144. Courts should not automatically exclude scientific evidence whenever a forensic analyst deviates from a correct test protocol in minor respects; instead, the deviation would have to materially affect the outcome in order to warrant exclusion. E. Imwinkelried, The Debate in the DNA Cases Over the Foundation for the Admission of Scientific Evidence: The Importance of Human Error as a Cause of Forensic Misanalysis, 69 Wash. U.L.Q. 19, 46 (1991). Here, however, Lambatos could not offer any testimony to establish any protocol. Contrary to what the court rests its analysis upon, there is simply no foundational evidence to “weigh.”
Last, and of equal importance, the court today implies that the scientific process involved in DNA analysis is “not comparable” to narcotics Gas Chromotography Mass Spectrometer (GCMS) testing because Lambatos did not “regurgitate” the results from Cellmark as experts do with respect to GCMS test results. 238 111. 2d at 141. Lambatos took on faith the DNA profile generated by Cellmark from the victim’s samples, assuming that because the lab was accredited all quality controls were in place when the profile was created. This seems no different from how expert witnesses in drug cases view the results from the GCMS machine. Unfortunately, it has been well-documented in DNA cases that “[quality control and quality assurances procedures that are followed religiously in some labs are ignored or followed intermittently in others.” W Thompson, Tarnish on the “Gold Standard”: Understanding Recent Problems in Forensic DNA Testing, 30 Champion 10, 11-12 (January-February 2006). The failure to employ quality control and quality assurance procedures can result in DNA matches in criminal cases that are wrong because of sample contamination or misconduct on the part of the technician. 30 Champion at 11-12. This explains why an adequate foundation is as essential in DNA cases as it is in drug cases. Given the impact a DNA match has on the trier of fact, courts must be vigilant in ensuring that DNA evidence is admitted with proper foundation. This is particularly so in jury cases where lay people might not be able to appreciate arguments which go to weight once they hear of a match that is one in a billion.
Based on the foregoing, I would hold that the foundation for Lambatos’ testimony was insufficient, and the circuit court abused its discretion in admitting it. Based on my resolution of defendant’s foundational challenge, I need not reach defendant’s sixth amendment confrontation clause argument.
Although I believe the circuit court abused its discretion by admitting Lambatos’ testimony without proper foundation, the error does not require a new trial. The testimony of a single witness, if it is positive and the witness credible, is sufficient to convict a defendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). In this case, the trial judge specifically found defendant guilty on the basis of the victim’s testimony, which he characterized as “highly credible.” The trial judge also commented specifically on the strength of the victim’s lineup identification and her in-court identification. The judge found the victim to be “an outstanding witness” and believed her testimony “a hundred percent.” These findings indicate to me that the error in admitting Lambatos’ testimony was harmless. On that basis, I would affirm the convictions.
Kooi identified the national guidelines that the Illinois State Police Crime Lab follows and testified that she followed the guidelines in this case.