No Crawford Issue With Supervisor Testimony About DNA

US v. Summers: Summers and another man were standing on a Baltimore street corner when approached by a police officer. They ran. When the officer first approached Summers, Summers was wearing a black jacket, but he was not wearing it when apprehended shortly thereafter. A jacket was found "atop one of the houses along Summers's flight path" which contained a firearm, ammunition, and cocaine. As a result, Summers was charged with various gun and drug offenses. At trial, officers identified the jacket (with varying degrees of certainty) as the one Summers was wearing. In addition, DNA evidence linked Summers to the jacket, although there was a gap in the chain of custody between the officer who seized the jacket and its contents at the scene and the lab where the testing was done. Summers was convicted of possession with intent to distribute crack and being a felon in possession of a firearm and sentenced to 262 months in prison.

On appeal, Summers argued that the manner in which the DNA evidence about the jacket was produced at trial - via testimony only of supervisor at the lab that did the testing, rather than those who actually handled and tested the jacket - violated the Confrontation Clause. The Fourth Circuit rejected his arguments and affirmed the convictions. With regards to the chain of custody of the jacket at the lab, the court noted that the evidence about that issue was introduced by Summers, not the prosecution, and thus there was no confrontation issues. Similarly, the district court did not err by admitting the jacket itself into evidence, regardless of any chain of custody issues, because it was identified by witnesses as the one Summers had been wearing that night. With regards to the supervisor's testimony, the court concluded that his testimony was admissible because, although subordinates did the testing underlying his opinion, the opinion itself was "original product" of his own analysis and he was not merely passing on information from others.

Judge Floyd concurred in the result, but not the reasoning, and would rested the decision on the conclusion that any Confrontation Clause error was harmless, thus avoiding the "thorny issue" resolved by the court.