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DNA - A Prosecutor’s Practice Notebook Inventory

Lab Issues which may Affect Confirmation Typing

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In some cases, the DNA evidence typing may have been performed by an analyst who is no longer employed at the lab. Together with the lab, the prosecutor should determine whether the prior analyst can return to the jurisdiction for trial or the evidence can be retyped. Unfortunately, in some cases the possibility of retyping may be precluded by the prior consumption of the entire sample or degradation of evidence.

The prosecutor needs to determine in light of Crawford and the interpreting case law whether these typing results can be admitted through an alternative means, such as business records exception, or through the substituted testimony of a co-reader who reviewed the original typing. There is some authority supporting the argument that a DNA co-reader could testify even in light of Crawford. (State v. Watts, 616 S.E.2d 290; 172 N.C. App. 58 (N.C. Ct. App. 2005); People v. Brown, No. 1279/03 (N.Y. Sup. Ct. July 14, 2005).

The DNA typing may have been outsourced to a private lab. For example, a state lab may have received grant funding to outsource "no suspect" case backlogs. The prosecutor should work in conjunction with the state lab to weigh the competing financial costs of retyping at the local lab vs. incurring the expert fees associated with presenting testimony from a private lab analyst.

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