State of Connecticut v. Kevin Benefield (2012)

MEMORANDUM OF DECISION RE DEFENDANT'S MOTION IN LIMINE TO PRECLUDE DNA EVIDENCE AND MOTION IN LIMINE TO PRECLUDE HEARSAY REGARDING MICROSCOPE SLIDES

In anticipation of the state's offer of certain evidence at trial, the defendant has filed two motions:  a Motion In Limine to Preclude DNA Evidence, and a Motion In Limine to Preclude Hearsay Regarding Microscope Slides, both of which are dated November 30, 2011.   On the same date and in support of these motions, the defendant also filed a joint Memorandum of Law. Simultaneous with the filing of these motions, the state submitted a so-called “State's Trial Memorandum:  Sufficiency of Chain of Custody to Admit Microscope Slides that Contain Sperm,” also dated November 30, 2011.   On December 6, 2011, in response to the motions filed by the defendant, the state also filed a “State's Response to Defendant's Motion to Preclude DNA Evidence and Hearsay.”   The defendant thereafter filed his written Reply to the state's response.

On December 8, 2011, these motions were argued before this court.   At the conclusion of the oral argument, the parties requested that the court issue its rulings as promptly as possible so that the parties' final trial preparation prior to the commencement of evidence on January 3, 2012 could be undertaken with knowledge of and consistent with these rulings.   In order to accommodate the parties' joint request, the court indicated that it would issue its rulings orally from the bench, and then follow with a formal written decision.   On December 14, 2001, the court issued its oral ruling denying the defendant's motions.   This written decision reiterates the court's oral ruling and is intended to more formally set forth the basis of that earlier decision.

FACTS

In this case, the state intends to seek to introduce into evidence the results of certain DNA testing and comparisons, which the state alleges incriminate the defendant.   To that end, the state seeks to offer at trial certain items of physical evidence:  two laboratory evidence envelopes from the state forensic laboratory, each of which contains a microscope slide within it.   The state contends that each of these slides was prepared from vaginal swabs taken from the victim by the medical examiner during the course of the victim's post-mortem examination.   The state further contends that these slides were later tested in the DNA section of the state forensic laboratory, and that evidence incriminating the defendant in the commission of this crime was detected and identified.

On each of the items of evidence the state seeks to introduce—the envelopes and the slides—certain numerical notations appear.   The state submits that these notations reflect the unique laboratory case number and laboratory item number (hereinafter, collectively referred to as the “lab numbers”) assigned by the forensic laboratory to the investigation at issue here and to specific items submitted to the laboratory for analysis.   The state seeks to introduce the envelopes and slides, with the lab numbers upon them, without calling as a witness the laboratory analyst, Beryl Novitch, who purportedly prepared the slides, placed them into the envelopes, and marked both the slides and the envelopes with the lab numbers.¹  The state does not seek to introduce any findings or conclusions of Novitch—that is, it is not offering any out-of-court description by her of what the slides are or what they purport to contain upon them, nor any description of the process by which the slides were created, nor the results of any testing or forensic analysis of the slides which Novitch performed.

The defendant has objected to the introduction of these items of evidence on sixth amendment grounds, contending that he is entitled to confront Novitch about these items of evidence, and in particular, about the lab numbers she placed upon them.   The defendant further challenges the admission of these items on state evidentiary grounds claiming that, absent Novitch's testimony, there cannot be sufficient proof as to the chain of custody between, on the one hand, the swabs taken at the autopsy, and on the other hand, the samples ultimately tested in the DNA lab.

Having considered the claims of the parties within the context of the relevant case law, the court concludes that the introduction of the envelopes and slides, bearing the lab numbers as indicated, does not violate the defendant's sixth amendment confrontation rights.   Additionally, as to the issue of the adequacy of the state's evidence on the chain of custody, the court rejects the defendant's contention that Novitch's testimony is required as a matter of law, but otherwise reserves judgment on the question of whether the state's proof will tie the samples from the autopsy to the samples subjected to DNA testing sufficiently to warrant the admission of the DNA results.

DISCUSSION

A. Sixth Amendment Claim

In order to resolve the constitutional question presented here, the court must determine whether the lab numbers written by Novitch on these items of evidence are “testimonial statements.”   This determination requires an analysis of a line of recent United States Supreme Court cases that, in a sense, established and (to a limited extent) fine-tuned the nature and definition of testimonial statements.   The first of these cases, Crawford v. Washington, 541 U.S. 36, 51, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), recognized that there exists a “core class of ‘testimonial’ statements” and provided examples of such statements, but left for another day a detailed description of the parameters of that phrase.  Crawford's holding was limited to its finding that, at a minimum, the core class of testimonial statements included prior in-court testimony and the results of the type of formal police interrogations specifically at issue in Crawford.  Id., 51–52.

Since then, the Court in Melendez–Diaz v. Massachusetts, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Bullcoming v. New Mexico, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), has indicated that affidavits and other similarly formal certifications of scientists memorializing the results of forensic analyses are also testimonial in nature.   In Melendez–Diaz, a drug case, four of the Justices (two of whom are no longer members of the court) joined in an opinion concluding that a sworn affidavit of a forensic analyst that provided essentially:  “I hereby state under oath that I tested the substance seized in this case and it was cocaine”;  was a testimonial statement.   These members of the Court noted that the affidavit in question was “a solemn declaration or affirmation,” and thus the type of “formalized testimonial [material]” falling within the “core class of testimonial statements.”  (Internal quotation marks omitted.)  Melendez–Diaz v. Massachusetts, supra, 129 S.Ct. 2532.   Indeed, as these Justices pointed out, a sworn affidavit was one of the specific examples of a testimonial statement that was offered by the majority opinion in Crawford.  Id. Finally, this opinion stressed that, under Massachusetts statutes, “the sole purpose of the [analyst's] affidavits was to provide ‘prima facie evidence of the composition, quality, and the net weight’ of the analyzed substance.”  Id. For these reasons, these Justices concluded that the analyst's affidavit was “incontrovertibly” testimonial.  Id.

Four other Justices, all of whom are present members of the Court, dissented.   Stating that a well-established rule of evidence long provided that “scientific analysis could be introduced into evidence without testimony from the ‘analyst’ who produced it,” the dissenting Justices accused the Court of “sweep[ing] away [this] accepted rule.”  Id., 2543.   The dissenters criticized the Court's reliance on Crawford and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), two cases the dissent described as “say [ing] nothing about forensic analysts.”  Melendez–Diaz v. Massachusetts, supra, 129 S.Ct. 2543.   These Justices were of the opinion that the admission into evidence of the analyst's affidavit was consistent with precedent and common sense, and did not offend the “underlying purpose of the [Confrontation] Clause.”  Id., 2544.

The 4 to 4 tie on the Melendez–Diaz Court was broken by Justice Thomas, who concurred with those Justices who concluded that the introduction of the report violated the sixth amendment.   In his concurring opinion, Justice Thomas expressed his view that the Confrontation Clause is offended only if the out-of-court statement sought to be introduced is “contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.”  (Internal quotation marks omitted.)  Id., 2543.   Since the analyst's report at issue in Melendez–Diaz was an actual sworn affidavit, Justice Thomas was the fifth vote in the majority holding that the admission of the report without testimony from the analyst violated the sixth amendment.

The Court next spoke in Bullcoming, a DUI case, where the Court considered whether a certificate stating the results of the defendant's blood-alcohol test should have been admitted absent the testimony of the analyst who performed the test.   Again with four justices dissenting, the Court concluded that the certificate was testimonial, characterizing the purpose of the certificate to be the creation an out-of-court substitute for trial testimony, and the nature and content of the certificate to be a formalized document setting forth the results of a forensic analysis.  Bullcoming v. New Mexico, supra, 131 S.Ct. 2717.²

In determining that the certificate at issue in Bullcoming was intended as a substitute for trial testimony, the Court stressed that the certificate there bore the title “certificate of analyst,” and, in addition to setting forth the BAC reading, included the signed affirmation by the analyst that the evidence sample was intact when received at the lab, that the analyst was qualified to perform the test, that he performed the test properly in this case, and that no circumstances were present in the sample or its testing that might have affected the integrity of the sample or the validity of the results of the analysis.  (Internal quotation marks omitted.)  Id., 2710–11.  “These representations,” the Court said, were “meet for cross-examination.”  Id., 2714.

As to the nature and content of the certificate, the Court observed that the formalities attendant to the report were more than adequate to characterize its assertions as testimonial.   The Court noted that the certificate was formalized in a document signed by the analyst, it was entitled a “report,” and it contained a reference to court rules that provided for the admission of the document into evidence.   Moreover, the Court noted that the certificate in Bullcoming was identical to the Melendez–Diaz affidavit in that, in both cases, the analyst “tested the evidence and prepared a certificate concerning the result of his analysis.”  Id., 2717.³

Given the certificate's formality, content and primary purpose, a majority of the Court held that Bullcoming's sixth amendment confrontation rights were violated by the introduction of the certificate into evidence, given that the analyst who performed the test and prepared the certificate did not appear in court and provide sworn testimony.

In light of this somewhat confusing Supreme Court precedent and this court's duty now to apply it, it is perhaps an understatement to say that the law in this area is evolving;  and, as the dissenting Justices in Melendez–Diaz predicted and in Bullcoming reiterated, trial judges must, to an extent, “guess what future rules th[e] Court will distill from the sparse constitutional text ․ [and] struggle to apply an amorphous, if not entirely subjective, highly context-dependent inquiry involving open-ended balancing.”   (Citation omitted;  internal quotation marks omitted.)  Id., 2726.   In this court's view, all that can be said from these cases is this:  the Confrontation Clause is violated if the prosecution introduces into evidence a formalized affidavit or certification containing both the results of a forensic analysis, as well as a representation that those results are reliable, without eliciting the in-court testimony of the analyst and making him or her available for cross-examination by the defendant.

Here, however, something quite different than the affidavit in Melendez–Diaz or the certificate in Bullcoming is being offered by the state.   Unlike the prosecutors in Melendez–Diaz and Bullcoming, the state is not seeking to introduce anything other than the lab numbers that the state claims Novitch wrote on the envelopes and slides.   As noted earlier, the state is not seeking to introduce any conclusions or opinions reached by Novitch concerning the envelopes' contents, or any representation by Novitch as to how the slides were produced, or whether or not whatever Novitch did or did not do in preparing the slides was appropriate.   Nor for that matter is the State offering anything concerning Novitch's opinion as to the condition of the swab samples from the autopsy when she received them, or any risks of contamination that her interaction with those samples may have created.   Last, the State is not seeking to introduce Novitch's belief as to her level of competency as a general matter, or more specifically, in her handling and processing of the evidence in this particular case.

Furthermore, Novitch's writing of the lab numbers lacks the type of formality that the Court in Melendez–Diaz and Bullcoming found so significant.   These lab numbers are not sworn to in an affidavit, nor can they be characterized as a “certification” in any legitimate sense of that word.   These notations, very simply, are nothing at all like the core of testimonial statements recognized in Crawford.   In fact, these notations, to employ a phrase used by Justice Scalia in another context in Melendez–Diaz, are very literally “back-of-the-envelope” notations;  Melendez–Diaz v. Massachusetts, supra, 129 S.Ct. 2540 n.10;  merely copied or transcribed by Novitch, in a ministerial manner without formality or solemnity, from another source which reflected that these lab numbers previously had been assigned administratively to items submitted for analysis in this case.

For these reasons, it cannot be said that the writings the state seeks to introduce here without the in-court testimony of their author were written for the primary purpose of creating a substitute for trial testimony.   For the court here to conclude that these lab numbers “scratched” on the evidence envelopes and slides are “testimonial statements” would effectively mean that virtually every writing by the forensic laboratory, without limitation, would be deemed testimonial and thus require in-court testimony by its writer.   To this court, neither the sixth amendment nor Supreme Court precedent stands for or supports that type of sweeping (if, indeed, not drastic) proposition.

In this case, the court recognizes, as the defense stresses in its filings, that Novitch actively manipulated the forensic evidence and that the slides contained in the envelopes appear unquestionably different, at least in outward appearance, than the swabs from which they purport to have been produced.   But these factors, in the court's view, are irrelevant to the sixth amendment analysis required here.   The out-of-court statements sought to be offered by the state here do not relate in any way to the nature of the evidence, either in its original form or the form into which it was converted.   Nor, for that matter, do the proffered statements contain any representations concerning the manner in which the evidence was manipulated by Novitch or the propriety of, or risks inherent in, those procedures.   Rather, the extrajudicial statements in question consist solely of the lab numbers, and are relevant therefore to show a chain of custody—that is, to show only that the particular samples the lab received (whatever they may have been) bear an evidentiary connection to certain slides.   No out-of-court statement is being introduced against the defendant concerning the nature of these samples or the extent to which the slides should be considered valid and reliable pieces of forensic evidence for purposes of later DNA testing.   These areas of inquiry, and many others, may be fully explored by the defendant on cross-examination.   As a result, in the court's view, the introduction of these lab numbers without the testimony of Novitch does not run afoul of the Confrontation Clause as interpreted by the Supreme Court in the Crawford, Melendez–Diaz and Bullcoming line of cases.⁴

The court's conclusion in this regard seems to be bolstered by the comments of and the questions posed by the Justices during the December 6, 2011 oral argument in the matter of Williams v. Illinois, No. 10–8505 (U.S. cert. granted June 28, 2011).  Williams is significant because, in that case, shipping records were introduced at trial by the state to prove that a forensic sample bearing a certain evidence number was sent out by local authorities to a private laboratory for DNA testing, and that the laboratory later sent the same sample back, along with the results of its analysis.⁵  At the recent oral argument before the Supreme Court, the very first question asked of the petitioner's attorney concerned the introduction of these shipping records into evidence at trial.   Specifically, Justice Sotomayor asked “Are you taking the position that those shipping documents were not business records?   Are you taking the position that those were improperly admitted?”   Tr. of Oral Arg. in Williams v. Illinois, No. 10–8505 (U.S. cert. granted June 28, 2011), pp. 4–5, available at http://www.supremecourt.gov/oral_arguments/argument_ transcripts/10–8505.pdf. The petitioner's attorney replied that he was not challenging the admission of those documents.

What happened next is perhaps even more significant, because it was at that time that Justice Scalia, who authored the majority opinion in Crawford and who has remained steadfast in his view as to the broad reach of the Confrontation Clause,⁶ immediately weighed in.   But Justice Scalia did so not by saying, as one might have expected, that the shipping records were testimonial and thus barred by the sixth amendment because they proved a fact relevant to criminal proceedings—that is, the chain of custody of evidence which would be necessary to make the lab results relevant.   Nor did Justice Scalia say that these types of records of a forensic laboratory, because the laboratory's business is the creation of evidence for trial, cannot under any circumstances be considered business records.   Rather, Justice Scalia pointed out that the shipping records “would just show that the material went to and came back from the lab.   It wouldn't show what the lab results were.”   Tr. of Oral Arg. in Williams v. Illinois, No. 10–8505 (U.S. cert. granted June 28, 2011), p. 5, available at http://www.supremecourt.gov/oral_arguments/argument transcripts/10–8505.pdf. In other words, it would appear that Justice Scalia had no quarrel with the proposition that the shipping records could be properly admitted for the limited purpose of showing, in effect, that “what went out is the same as what came back” What instead troubled Justice Scalia was the state's decision at trial to use and rely upon the results of the private laboratory's testing, without producing a single witness from the laboratory who participated in the testing that generated those results.

To the extent that comments in oral argument may help to shed some light on the Court's views, these exchanges would appear to undermine the defendant's position here.   These comments suggest that two of the Justices, who have not been generally of the same mind as to the breadth of the Confrontation Clause, do share the view that certain records produced by a crime laboratory (despite that entity's clear role in producing evidence for trial) can be nontestimonial, and, if satisfying applicable state evidentiary requirements, can be admitted into evidence without confrontation.   More specifically, these comments appear to indicate that chain of custody records, like the shipping manifest allowed into evidence in Williams, are not testimonial and can be admitted without the in-court testimony of their author.   In the court's opinion, it cannot be disputed that there exists a strong correlation between, on the one hand, the shipping records in Williams offered to show that the evidence that went out was connected to the evidence that came back, and on the other hand, the lab numbers offered here to show that what Novitch took out of one container is connected to what she put back in another.

In this court's opinion, neither the shipping manifest nor Novitch's notations had as its primary purpose the creation of an out-of-court statement which could be used as a substitute for trial testimony.   In fact, in the case here, it perhaps cannot even be fairly said that it was Novitch's purpose to create a statement at all.   Rather, Novitch's primary purpose in placing the lab numbers on the envelopes and slides was to ensure compliance with the laboratory's protocol—that is, to ensure that evidence submitted in a given case would always be identifiable, and would always be kept separate from the evidence submitted in a different case.   These notations simply were not intended or created as a substitute for trial testimony.

Finally, it bears mention that the Williams oral argument is not the first time that the Court has suggested that certain laboratory records are nontestimonial.   Such a conclusion was the clear import of footnote 1 of Melendez–Diaz, which specifically noted that records of laboratory machine maintenance were likely nontestimonial.  Melendez–Diaz v. Massachusetts, supra, 129 S.Ct. 2532.   With that being the case, it cannot be entirely accurate to say, as the defendant does here, that any out-of-court statement introduced to prove a fact relevant to a defendant's guilt is by its nature testimonial.   If the defendant's assertion were correct, then, contrary to the Melendez–Diaz footnote, maintenance records would not be admissible without confrontation.   Maintenance of laboratory machines and the records of that maintenance are unquestionably undertaken and produced in anticipation of litigation and for the primary (if not sole) purpose of ensuring that forensic results are admissible into evidence.   Indeed, such reports are commonly formalized documents which actually attest to facts—that is, they certify that the particular machine has been properly calibrated and is working properly.   Certainly, those records are routinely relied on by the state and admitted into evidence as proof of the reliability of the test results generated by a machine in a given case, and, in turn, as proof of the defendant's guilt.   Yet, under Melendez–Diaz, the possibility that the person who maintained the machine was incompetent or, as in Bullcoming, had been suspended from his job, does not prevent the maintenance records from being admitted into evidence, even without the testimony of the maintenance person's testimony.   If maintenance records are admissible, then so, too, are the lab numbers here—notations that are far less formalized than maintenance records, far less in the nature of a certification, and ultimately far less significant to the state's proof against the defendant.

For all of these reasons, the court concludes that the lab numbers appearing on the evidence envelopes and slides are not testimonial and may be received into evidence without constitutional violation.

B. State Evidentiary Claim

As noted, the defendant has also objected to the introduction of the DNA evidence on a further and separate ground:  namely, that absent Novitch's testimony, the state cannot adequately prove a sufficient chain of custody between the swabs taken from the victim during the autopsy, and the DNA results generated from an examination of the slides prepared by Novitch.   The defense claim in this regard is that, given Novitch's handling and manipulation of the swabs and her creation of the slides from them, her testimony is necessary in order for the DNA results to be received into evidence.   Distilled to its essence, the defendant's claim is that, without knowing precisely what Novitch did, how she did it, and the risks of contamination resulting therefrom—information that the defendant contends can only come through Novitch herself—the court must as a matter of law exercise its gatekeeping function and exclude the slides and the DNA results generated from their testing.

Although the court will ultimately have to hear the testimony offered by the state in its effort to adequately prove a chain of custody, the court does not agree with the defendant that Novitch's absence, as a matter of law, precludes the admission of the slides and the DNA evidence.   Under Connecticut law and as applied to the facts here, the court's gatekeeping function relating to chain of custody requires only that the court be satisfied that there is a reasonable probability that the slides contain evidence that has not been changed in any material respect from that which existed on the swabs.  State v. Estrada, 71 Conn.App. 344, 353, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002).   This “reasonable probability” standard means that the state does not have to prove beyond a reasonable doubt that the evidence is the same on the swabs and the slides, or exclude or disprove all possibility that these samples have been tampered with or otherwise contaminated.  State v. Rosado, 107 Conn.App. 517, 532, 945 A.2d 1028, cert. denied, 287 Conn. 919, 951 A.2d 571 (2008).

Furthermore, in the court's view, the fact that the original samples have been exposed to chemical processes and changed in physical form, does not compel the conclusion that they have been altered in a way sufficient to preclude their admission into evidence.   As noted, all that is required is a reasonable probability that, in their new form and having been exposed to these chemical processes, the evidence remains in all materials respects the same.  State v. Conroy, 194 Conn. 623, 626, 484 A.2d 448 (1984);  State v. Smith, 107 Conn.App. 666, 679–80, 946 A.2d 319, cert. denied, 288 Conn. 902, 952 A.2d 811 (2008).   In other words, changes in the condition of evidence not affecting the purpose for which the item is offered are largely irrelevant in determining the item's admissibility.  State v. Asherman, 193 Conn. 695, 723, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S.Ct. 1749, 84 L.Ed.2d 814 (1985);  State v. McGuire, 84 Conn. 470, 480, 80 A.2 761 (1911).⁷

To the extent, therefore, that the defendant argues that, as a matter of law, the state cannot introduce the DNA results in this case without the testimony of Novitch, the court disagrees.   The state will be afforded the opportunity to prove its chain of custody at trial in the manner it sees fit.   The defendant, of course, at the appropriate time will also have the opportunity to convince the court, based on evidence he adduces or on the failures of the state's proof, that the state has failed to present sufficient proof of the chain of custody.

This issue cannot be fully resolved, however, in limine.   Ultimately, if the state is unsuccessful in meeting its burden of proof, then the evidence will be excluded.   If the state satisfies its burden, then the evidence will be allowed, with the defendant being afforded broad latitude in its cross-examination of all witnesses who give testimony relevant to the issues of chain of custody and the resulting reliability of any DNA evidence to be offered by the state.

CONCLUSION

For these reasons, the court denies the constitutional claims raised within the defendant's Motion In Limine to Preclude DNA Evidence, and Motion In Limine to Preclude Hearsay Regarding Microscope Slides.   The court also denies the state evidentiary claims raised in these motions to the extent that they argue that relief is required as a matter of law.   The court reserves judgment, however, as to the factual sufficiency of the state's chain of custody evidence until that evidence is formally presented at trial.

THE COURT

Gold, J.

FOOTNOTES

FN1. It is the court's understanding that Novitch, now over 70 years of age, retired a number of years ago from her position in the state forensic laboratory and is now a resident of California.   The parties appear to agree that Novitch, although possibly subject to out-of-state subpoena, has expressed significant resistence and objection to returning to Connecticut to give testimony—possibly because of the state of her current physical and mental health.   Whether or not that is true, however, Novitch's availability and the state's effort to produce her in court is of no moment to the issues presented here.   As the defendant conceded at oral argument, the same constitutional and evidentiary questions raised in the instant motions would be present if Novitch, whose work on this case concluded over 25 years ago, had since died, or become mentally disabled or otherwise incompetent to testify.   Consequently, the court's decision cannot turn on Novitch's actual availability, or the extent to which she could or should be compelled to give testimony..  FN1. It is the court's understanding that Novitch, now over 70 years of age, retired a number of years ago from her position in the state forensic laboratory and is now a resident of California.   The parties appear to agree that Novitch, although possibly subject to out-of-state subpoena, has expressed significant resistence and objection to returning to Connecticut to give testimony—possibly because of the state of her current physical and mental health.   Whether or not that is true, however, Novitch's availability and the state's effort to produce her in court is of no moment to the issues presented here.   As the defendant conceded at oral argument, the same constitutional and evidentiary questions raised in the instant motions would be present if Novitch, whose work on this case concluded over 25 years ago, had since died, or become mentally disabled or otherwise incompetent to testify.   Consequently, the court's decision cannot turn on Novitch's actual availability, or the extent to which she could or should be compelled to give testimony.

FN2. In considering the Court's reasoning, it is useful to analyze the Justices' efforts in Bullcoming to reach a consensus as to the definition of a testimonial statement.   In footnote 6, the Court stated that “to rank as ‘testimonial,’ a statement must have a primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.”  (Internal quotation marks omitted.)  Bullcoming v. New Mexico, supra, 131 S.Ct. 2714 n.6. Although Justice Sotomayor joined the Court's judgment in Bullcoming, her concurring opinion opens by defining a testimonial statement as one which has “a primary purpose of creating an out-of-court substitute for trial testimony.”  (Internal quotation marks omitted.)  Id., 2720.   This definition, which seems to be a more narrow one than the footnote 6 definition, is taken from Justice Sotomayor's majority opinion in Michigan v. Bryant, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011), a decision in which she was joined by the four Justices who dissented in Bullcoming.   It would appear, therefore, that it is this more restrictive definition, and not the broader footnote 6 definition, that has garnered the support of a majority of the Supreme Court.   Interestingly, Justice Thomas joined in neither definition, reflecting, no doubt, his view that it is a statement's formality and solemnity alone, and not in any way its purpose, that renders a statement testimonial and triggers sixth amendment confrontation rights..  FN2. In considering the Court's reasoning, it is useful to analyze the Justices' efforts in Bullcoming to reach a consensus as to the definition of a testimonial statement.   In footnote 6, the Court stated that “to rank as ‘testimonial,’ a statement must have a primary purpose of establish[ing] or prov[ing] past events potentially relevant to later criminal prosecution.”  (Internal quotation marks omitted.)  Bullcoming v. New Mexico, supra, 131 S.Ct. 2714 n.6. Although Justice Sotomayor joined the Court's judgment in Bullcoming, her concurring opinion opens by defining a testimonial statement as one which has “a primary purpose of creating an out-of-court substitute for trial testimony.”  (Internal quotation marks omitted.)  Id., 2720.   This definition, which seems to be a more narrow one than the footnote 6 definition, is taken from Justice Sotomayor's majority opinion in Michigan v. Bryant, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011), a decision in which she was joined by the four Justices who dissented in Bullcoming.   It would appear, therefore, that it is this more restrictive definition, and not the broader footnote 6 definition, that has garnered the support of a majority of the Supreme Court.   Interestingly, Justice Thomas joined in neither definition, reflecting, no doubt, his view that it is a statement's formality and solemnity alone, and not in any way its purpose, that renders a statement testimonial and triggers sixth amendment confrontation rights.

FN3. Justice Sotomayor's concurring opinion noted that the formality of the Bullcoming certificate “derives from the fact that the analyst is asked to sign his name and ‘certify’ to both the results and the statements on the form.”  Bullcoming v. New Mexico, supra, 131 S.Ct. 2721.   Justice Sotomayor went on to observe that the analyst, by certifying to these results and statements, was “attesting” to their truth—that is, the analyst was bearing witness against the defendant.  Id. The significance of this relationship between the act of attestation and that of “bearing witness” cannot be overstated, because as Crawford held, the Confrontation clause only guarantees a defendant's right to confront those “who ‘bear testimony’ “ against him.  Crawford v. Washington, supra, 541 U.S. 51.   As a result, the formality of a statement and the extent to which the declarant swears to or attests to its truth are factors that must play a crucial part in determining whether a statement is “testimonial.”.  FN3. Justice Sotomayor's concurring opinion noted that the formality of the Bullcoming certificate “derives from the fact that the analyst is asked to sign his name and ‘certify’ to both the results and the statements on the form.”  Bullcoming v. New Mexico, supra, 131 S.Ct. 2721.   Justice Sotomayor went on to observe that the analyst, by certifying to these results and statements, was “attesting” to their truth—that is, the analyst was bearing witness against the defendant.  Id. The significance of this relationship between the act of attestation and that of “bearing witness” cannot be overstated, because as Crawford held, the Confrontation clause only guarantees a defendant's right to confront those “who ‘bear testimony’ “ against him.  Crawford v. Washington, supra, 541 U.S. 51.   As a result, the formality of a statement and the extent to which the declarant swears to or attests to its truth are factors that must play a crucial part in determining whether a statement is “testimonial.”

FN4. That Novitch's interaction with the evidence bears no relationship to the Confrontation Clause challenge raised here is a conclusion best elucidated through the following hypothetical.   Assume that Novitch had opened the containers in which the swabs from the autopsy were originally received at the lab, merely transferred the swabs to a different container, and then copied the lab numbers from the original container onto the new container.   Later, it is the contents of that new container that are tested in the DNA lab and produce the results that the state claims implicate the defendant.   To the court, this hypothetical case is, in a constitutional sense, exactly the same as the issue actually now before the court:  that is, is the defendant entitled to confront Novitch in court in order to explore whether she accurately transcribed the lab numbers and that, in fact, the evidence ultimately tested for DNA was the evidence that the lab had received from the autopsy?   Because the question would be same in either situation, the manipulation of the evidence by Novitch, a factor to which the defendant ascribes much significance in his brief and argument, is really beside the point.   In both this hypothetical example and in the case actually before the court, the lab numbers on the envelopes and slides are being offered solely as circumstantial proof that the DNA results later generated bear relevance to this case.   The defendant would be free in both instances to raise questions before the jury as to whether that link truly exists, and, even if it does, whether the DNA results can be considered reliable without knowing precisely what Novitch may have done correctly or incorrectly.   As such, and as stated in the text, the sixth amendment right to confrontation is not implicated in the circumstances actually before the court to any greater degree than it would be in the hypothetical situation that the court has posed..  FN4. That Novitch's interaction with the evidence bears no relationship to the Confrontation Clause challenge raised here is a conclusion best elucidated through the following hypothetical.   Assume that Novitch had opened the containers in which the swabs from the autopsy were originally received at the lab, merely transferred the swabs to a different container, and then copied the lab numbers from the original container onto the new container.   Later, it is the contents of that new container that are tested in the DNA lab and produce the results that the state claims implicate the defendant.   To the court, this hypothetical case is, in a constitutional sense, exactly the same as the issue actually now before the court:  that is, is the defendant entitled to confront Novitch in court in order to explore whether she accurately transcribed the lab numbers and that, in fact, the evidence ultimately tested for DNA was the evidence that the lab had received from the autopsy?   Because the question would be same in either situation, the manipulation of the evidence by Novitch, a factor to which the defendant ascribes much significance in his brief and argument, is really beside the point.   In both this hypothetical example and in the case actually before the court, the lab numbers on the envelopes and slides are being offered solely as circumstantial proof that the DNA results later generated bear relevance to this case.   The defendant would be free in both instances to raise questions before the jury as to whether that link truly exists, and, even if it does, whether the DNA results can be considered reliable without knowing precisely what Novitch may have done correctly or incorrectly.   As such, and as stated in the text, the sixth amendment right to confrontation is not implicated in the circumstances actually before the court to any greater degree than it would be in the hypothetical situation that the court has posed.

FN5. The issue before the Court in Williams arises from the fact that these DNA results were introduced against the defendant at trial not through the testimony of any of the analysts from the out-of-state private lab, but through an expert from a local agency who testified about these DNA results and gave opinions based upon them.   The Court's decision in Williams could delineate the extent to which expert witnesses offered in court may rely on the reports, findings and opinions of other non-testifying experts, without running afoul of a defendant's right of confrontation..  FN5. The issue before the Court in Williams arises from the fact that these DNA results were introduced against the defendant at trial not through the testimony of any of the analysts from the out-of-state private lab, but through an expert from a local agency who testified about these DNA results and gave opinions based upon them.   The Court's decision in Williams could delineate the extent to which expert witnesses offered in court may rely on the reports, findings and opinions of other non-testifying experts, without running afoul of a defendant's right of confrontation.

FN6. Justice Scalia's views in this area, along with his opinion as to the merit of the contrary views held by some of the other Justices, are expressed in no uncertain terms in Justice Scalia's dissenting opinion in Michigan v. Bryant, supra, 131 S.Ct. 1168..  FN6. Justice Scalia's views in this area, along with his opinion as to the merit of the contrary views held by some of the other Justices, are expressed in no uncertain terms in Justice Scalia's dissenting opinion in Michigan v. Bryant, supra, 131 S.Ct. 1168.

FN7. In determining whether evidence has remained materially the same, the court is directed to consider, among other things, the circumstances surrounding the preservation and custody of the evidence and the likelihood of intermeddlers tampering with it.  State v. Estrada, supra, 71 Conn.App. 353.   Interestingly, it has been noted that a court may well be justified in concluding that evidence would remain materially the same “while at the state lab where it would be highly unlikely that intermeddlers would tamper with the evidence.”  (Internal quotation marks omitted.)  Id., 353–54..  FN7. In determining whether evidence has remained materially the same, the court is directed to consider, among other things, the circumstances surrounding the preservation and custody of the evidence and the likelihood of intermeddlers tampering with it.  State v. Estrada, supra, 71 Conn.App. 353.   Interestingly, it has been noted that a court may well be justified in concluding that evidence would remain materially the same “while at the state lab where it would be highly unlikely that intermeddlers would tamper with the evidence.”  (Internal quotation marks omitted.)  Id., 353–54.

Gold, David P., J.