April 30, 2014
Sixth Amendment Confrontation

by Justice Paul E. Pfeifer

Scientific experts presenting DNA evidence during trials is nothing new; people have seen it everywhere from the O.J. Simpson case to any of about a dozen courtroom dramas on television. It was also an issue that came up in a case that we reviewed here – at the Supreme Court of Ohio. Not because of the evidence itself, but rather because of how it was presented and by whom.

In 2008, a jury found Daniel Arden Keck II guilty of multiple counts of rape, gross sexual imposition, pandering obscenity involving a minor, pandering sexually oriented matter involving a minor, illegal use of a minor in nudity-oriented material or performance, and two counts of kidnapping. All the charges arose from incidents involving underage boys. Following his convictions, Keck received an aggregate prison sentence of 71 years.

Keck filed an appeal, arguing in part that his constitutional right to confrontation was violated when he was denied the opportunity to cross-examine Mark Losko. Keck was referring to the Sixth Amendment to the United States Constitution, which says that, “in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ...”

Losko works at the Bureau of Criminal Identification and Investigation (“BCI”). But because Losko wasn’t called to testify at trial regarding how he had created DNA profiles for Keck and the alleged victims, Keck never had the opportunity to confront him.

Losko had generated DNA profiles from swabs taken of Keck and the alleged victims. Losko included the profiles in his report, which also contained a comparison between those profiles and DNA found on one piece of physical evidence related to the alleged incidents.

But the day before Losko was to testify, the state’s attorney informed the judge that Keck’s attorney agreed to stipulate to Losko’s report. By “stipulate,” the state’s attorney meant that Keck’s attorney did not challenge the information in Losko’s report. Therefore, the state notified Losko that he would not be called to testify because his reports weren’t being challenged.

Keck’s attorney confirmed that he was stipulating to Losko’s report and specified that he stipulated to “both its admissibility and content.” Therefore, the DNA profiles generated by Losko were stipulated to and were in evidence.

At trial, the state called Kristen Slaper, a BCI forensic scientist, who testified as an expert witness in the field of DNA analysis and comparison. She testified that she had used the profiles generated by Losko to compare against the DNA profiles that she had generated from samples collected from other evidence in the case.

Slaper testified that she herself had generated the DNA profiles from samples taken from pieces cut from a comforter containing semen stains that had been found in Keck’s home. Afterwards, she compared those profiles to the DNA profiles generated by Losko and found that multiple samples contained DNA that matched Keck’s DNA profile and some samples contained DNA matching the DNA profiles of two of the alleged victims. The court admitted both Slaper’s and Losko’s reports into evidence.

In its decision affirming the judgment of the trial court, the court of appeals stated that because Losko’s report contained only raw data and because Slaper testified and was cross-examined regarding her own report linking Keck to the DNA evidence, Keck’s right to confrontation had been satisfied.

The court of appeals accordingly held that no violation of Keck’s Sixth Amendment rights had occurred. After that, Keck’s case came before us for a final review. We determined that by stipulating to the admissibility and content of Losko’s report, Keck waived any right to challenge Slaper’s reliance on it on the grounds that her testimony violated his right to confrontation.

Keck argued that with respect to Losko’s report, Slaper testified as a surrogate witness who presented Losko’s findings as fact. Keck stated that his right to confrontation was violated when Slaper’s testimony and report were admitted without the opportunity to cross-examine Losko, since Losko prepared the data that Slaper used in her analysis.

We concluded that this argument lacked merit in light of the fact that Keck stipulated to the admissibility and content of Losko’s report.

Keck further argued that he did not stipulate to the portion of Losko’s report that Slaper relied on, but rather to a portion in another report. But the record clearly shows that at the conclusion of court proceedings the day before Losko was to be called to testify, Keck’s attorney unequivocally stipulated to the admissibility and content of Losko’s entire report, which contained DNA profiles of six individuals and of stains on one piece of evidence.

In creating her own report, Slaper used the portion of Losko’s report containing the DNA profiles of the six individuals, which she compared to the DNA profiles from stains on three different pieces of evidence.

Losko produced only one report in this case, and Keck stipulated to it in its entirety. Slaper’s reliance upon Losko’s data in her report and her testimony regarding that data thus did not violate Keck’s right to confrontation.

In writing the majority opinion for this case, Justice Judith Ann Lanzinger said, “By stipulating to Losko’s report, Keck waived any argument that the report was inadmissible or inaccurate. By stipulating, Keck agreed that the report was admissible and a truthful representation of Losko’s findings; he could no longer assert any right to confront Losko.

“It is especially revealing that, according to the record, the state was prepared and willing to call Losko to testify before Keck agreed to the stipulation. It was thus Keck’s own decision that rendered Losko’s testimony unnecessary. We cannot hold that Keck’s confrontation rights were violated.”

Therefore – by a seven-to-zero vote – we concluded that when a defendant has stipulated to the admissibility and content of a nontestifying analyst’s scientific report, the testimony of a witness who relied on that report does not violate the defendant's right to confrontation. Accordingly, we affirmed the judgment of the court of appeals, which means that Keck’s convictions remain unchanged.

EDITOR'S NOTE: The case referred to is State v. Keck, 137 Ohio St.3d 550, 2013-Ohio-5160. Case No. 2011-0686. Decided November 27, 2013. Majority opinion written by Justice Judith Ann Lanzinger.