UNITED STATES, Appellant 

v. 

Joshua KATSO, Airman Basic 

U.S. Air Force, Appellee 

No. 14-5008 

Crim. App. No. 38005 

United States Court of Appeals for the Armed Forces 

Argued October 7, 2014 

Decided June 30, 2015 

RYAN, J., delivered the opinion of the Court, in which BAKER, 

C.J., and ERDMANN and STUCKY, JJ., joined. OHLSON, J., filed a 

separate dissenting opinion. 

Counsel 

For Appellant: Captain Thomas J. Alford (argued); Colonel Don 

M. Christensen and Gerald R. Bruce, Esq. (on brief). 

For Appellee: Major Nicholas D. Carter (argued); Major Isaac C. 

Kennen. 

Amicus Curiae for Appellant: Anece Baxter White, Esq. (on 

brief) – Defense Forensic Science Center/United States Army 

Criminal Investigation Laboratory. 

Military Judges: William C. Muldoon Jr. and Matthew D. Van 

Dalen 

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION. 
United States v. Katso, 14-5008/AF 

2 

 Judge RYAN delivered the opinion of the Court. 

Appellee was convicted, contrary to his pleas, by a general 

court-martial composed of officer and enlisted members of one 

specification of aggravated sexual assault, one specification of 

burglary, and one specification of unlawful entry, in violation 

of Articles 120, 129, and 134, UCMJ, 10 U.S.C. §§ 920, 929, 934. 

United States v. Katso, 73 M.J. 630, 632 (A.F. Ct. Crim. App. 

2014). Appellee was sentenced to confinement for ten years, a 

dishonorable discharge, and forfeiture of all pay and 

allowances. Id. The convening authority approved the sentence. 

Id. The United States Air Force Court of Criminal Appeals (CCA) 

set aside and dismissed the findings and sentence, holding that 

the testimony of a Government expert witness was based on a 

testimonial report written by an out-of-court declarant, thereby 

violating Appellee’s right to confrontation under the Sixth 

Amendment of the United States Constitution. Id. at 638-40, 

642. 

The Judge Advocate General of the Air Force certified the 

following issue to this Court: 

WHETHER THE AIR FORCE COURT OF CRIMINAL APPEALS ERRED 

WHEN IT FOUND APPELLEE’S SIXTH AMENDMENT RIGHT TO 

CONFRONTATION WAS VIOLATED WHEN THE MILITARY JUDGE 

PERMITTED, OVER DEFENSE OBJECTION, THE TESTIMONY OF 

THE GOVERNMENT’S DNA EXPERT, AND THAT THE ERROR WAS 

NOT HARMLESS. 
United States v. Katso, 14-5008/AF 

3 

This case requires us to examine the application of the 

Sixth Amendment to testimony relating the results of forensic 

analysis that was the product of collaboration among a number of 

laboratory employees. When an expert’s knowledge and opinions 

are based in part on tests performed by others, what may the 

expert tell the factfinder without violating the defendant’s 

right to confrontation? To answer this question, we apply the 

frameworks developed by the Supreme Court and by this Court to a 

set of facts that neither court has considered. 

We hold that the testimony of the Government’s forensic 

expert witness, David Davenport, did not violate Appellee’s 

right to confrontation. Unlike the experts in Bullcoming v. New 

Mexico, 131 S. Ct. 2705, 2715 (2011), and United States v. 

Blazier (Blazier II), 69 M.J. 218, 226 (C.A.A.F. 2010), Mr. 

Davenport’s personal knowledge regarding the derivation of the 

evidence at issue made him neither a “surrogate” expert, 

Bullcoming, 131 S. Ct. at 2715, nor a mere “conduit” for the 

testimonial statements of another. Blazier II, 69 M.J. at 225; 

see also Williams v. Illinois, 132 S. Ct. 2221, 2241 (2012). 

Mr. Davenport conducted a thorough review of the entire case 

file, including the documents submitted with the evidence, the 

tests performed on the evidentiary samples, and the quality 

control measures. He personally compared the DNA profiles from 

the evidentiary samples to the DNA profiles from the known 
United States v. Katso, 14-5008/AF 

4 

samples, reran the statistical analysis, and formulated his own 

carefully considered conclusions. Much of the data underlying 

his opinion was not testimonial, and, assuming arguendo that the 

report prepared for his technical review was testimonial, Mr. 

Davenport did not act as a mere conduit for the report. See

Memorandum from Robert Fisher, Forensic DNA Examiner, to 

Commander, Air Force Office of Special Investigations, 

Detachment 320 (Jan. 28, 2011) [hereinafter Final Report]. The 

military judge’s denial of Appellee’s motion to exclude the 

expert’s testimony was not an abuse of discretion, and the 

decision of the CCA is reversed. 

I. FACTS 

A. Collecting and Analyzing the DNA Evidence 

On the morning of December 11, 2010, Senior Airman (SrA) CA 

reported that she had been raped, and identified Appellee as the 

perpetrator. Agents from the Air Force Office of Special 

Investigations (AFOSI) promptly brought SrA CA to the hospital 

for an examination. A Sexual Assault Nurse Examiner (SANE) 

testified that she collected, among other items, vaginal, oral, 

and rectal swabs from SrA CA, a blood sample, and debris from 

SrA CA’s clothing. The nurse examiner handed these samples to 

an AFOSI agent. Another SANE testified that she collected 

Appellee’s blood and saliva, obtained penile and scrotal swabs, 

and handed the samples to an AFOSI agent. 
United States v. Katso, 14-5008/AF 

5 

AFOSI Special Agent (SA) Richard Blair testified at trial 

that he received the samples from the two agents who had been at 

the hospital. The samples were combined into two separate 

“sexual assault kits,” containing samples from Appellee and SrA 

CA, respectively. SA Blair explained that the agents who 

received the samples prepared a set of documents to accompany 

each kit, which SA Blair reviewed. SA Blair sent this evidence 

and documents to the United States Army Criminal Investigation 

Laboratory (USACIL), enclosing a request form that described 

each piece of evidence and listed identifying numbers for the 

evidence.1

B. Mr. Davenport’s Testimony on the Motion to Suppress 

Robert Fisher, the USACIL employee responsible for the 

initial analysis of the sexual assault kits, was in Florida 

 

1

 The filled-out forms that accompanied the kits are not in the 

record. However, SA Blair noted that Dep’t of the Air Force 

Form 52, Evidence Tag (July 1986) [hereinafter AF Form 52], was 

included with each kit. Mr. Davenport also stated that a “chain 

of custody” document and a “laboratory exam request” accompany 

all evidence arriving at USACIL through the mail. Dep’t of the 

Army Form 4137, Evidence/Property Custody Document (July 1976) 

[hereinafter DA Form 4137], and Dep’t of Defense Form 2922, 

Forensic Laboratory Examination Request (July 2006) [hereinafter 

DD Form 2922], are the forms submitted to USACIL with evidence. 

See Dep’t of the Air Force, Instr. 31-206, Security Forces 

Investigations Program para. 2.7.1.10 (Sept. 16, 2009) 

(describing procedures for submission of evidence by Air Force 

Security Forces). While we do not know what information was 

filled out in this case, the generic forms -- AF Form 52, DA 

Form 4137, and DD Form 2922 -- request the names of the party or 

parties from whom the evidence was derived. 
United States v. Katso, 14-5008/AF 

6 

during the court-martial to be by his mother’s side while she 

underwent major surgery. The Government notified the defense 

that it would elicit testimony about the forensic analysis from 

Mr. Davenport, who conducted the technical review of Mr. 

Fisher’s analysis. At the time of the trial, Mr. Davenport had 

worked as a forensic DNA examiner at USACIL for more than six 

years. Appellee made a motion in limine to exclude Mr. 

Davenport’s testimony, arguing that such testimony would violate 

his right to confrontation. In an Article 39(a), UCMJ, 10 

U.S.C. § 839(a) (2012), session, Mr. Davenport testified both 

about the steps that USACIL technicians follow to process 

evidence in cases of alleged sexual assault and his own role in 

reviewing and testing the evidence in this case. 

i. USACIL’s Procedure for Processing Evidence 

Testifying during the hearing on the motion to suppress, 

Mr. Davenport described the path of sexual assault kits through 

USACIL. First, employees in the evidence processing section 

receive the evidence. They then scan and save an electronic 

copy of the forms accompanying the evidence into a “case file” 

on the laboratory’s computer system. The “case examiner” checks 

the evidence out of the evidence processing section, breaks the 

seal on the evidence, and checks the forms that accompanied the 

package against the evidence to ensure that the lab received all 

items reflected therein. The examiner then inventories the 
United States v. Katso, 14-5008/AF 

7 

evidence, verifies that the evidence was properly sealed, and 

notes any irregularities with the evidence. The examiner is 

required to document any accidents or mistakes that occurred 

during the tests. 

The case examiner performs a serological examination, which 

entails looking for traces of semen on the evidence collected 

from the victim. Various steps of this exam require the 

examiner to record his visual observations.2

 The examiner then 

creates DNA profiles from the “evidentiary samples” -- the 

samples identified by the serology exam and the swabs collected 

during the SANE’s examination of the suspect -- and creates DNA 

profiles from the blood or saliva of the parties, the “known 

samples.” To create a DNA profile, the examiner must “purify” 

the DNA, extracting it from the sample; determine the quantity 

and type of DNA present using an instrument that generates a 

computer printout; copy portions of the DNA; and use another 

instrument to produce the machine-generated data that comprises 

the DNA profile. 

 

2

 Mr. Davenport reviewed observations recorded during the testing 

process, such as these, along with Mr. Fisher’s other notes and 

data, to determine that proper protocol was followed. Mr. 

Davenport did not rely on some assertion or assurance by Mr. 

Fisher (which resides nowhere in the record), as the dissent 

proposes. United States v. Katso, __ M.J. __, __ (6) (C.A.A.F. 

2015) (Ohlson, J., dissenting). 
United States v. Katso, 14-5008/AF 

8 

The examiner compares the DNA profiles from the evidentiary 

samples to the DNA profiles from the known samples. Based on 

this comparison, the examiner determines whether any sample 

identified by the serology exam contains a DNA profile matching 

the DNA from the known sample of the suspect, and whether any 

swab collected from the suspect contains a DNA profile matching 

DNA from the known sample of the victim. For each match, the 

examiner calculates the probability that the DNA profile on the 

evidentiary sample would match an unrelated individual selected 

at random from the American population. The examiner then 

drafts a report summarizing these results. 

ii. Mr. Davenport’s Technical Review 

As the “technical reviewer,” Mr. Davenport was required to 

verify Mr. Fisher’s results and approve the Final Report, which 

Mr. Fisher drafted. In the Article 39(a) session, Mr. Davenport 

outlined the steps he took to review Mr. Fisher’s work. 

According to Mr. Davenport, his review focused on the items in 

the case file, which contained, inter alia, the request for 

analysis and forms submitted by AFOSI, Mr. Fisher’s handwritten 

notes, records of the quality control measures used during 

testing, all printouts generated during the testing process, the 

raw DNA profile data, and the Final Report. Mr. Davenport 

neither handled the initial evidence submitted nor observed Mr. 

Fisher’s testing procedures. 
United States v. Katso, 14-5008/AF 

9 

Mr. Davenport verified that Mr. Fisher followed protocol 

and properly documented each step, and that the protocol 

utilized by USACIL is widely accepted in the field of forensic 

DNA analysis. Mr. Davenport testified that USACIL procedures 

require many quality control measures, such as running positive 

and negative controls, recording the lot numbers of the 

chemicals used, processing an unrelated known DNA sample along 

with the samples at issue, and processing test tubes that 

contain reagent but not DNA. Mr. Davenport testified that he 

was able to determine, based on the contents of the case file, 

that Mr. Fisher took these measures. 

Mr. Davenport explained that, since Mr. Fisher was required 

to document accidents or mistakes, he could determine whether 

any accidents occurred or whether Mr. Fisher made any mistakes 

by reviewing Mr. Fisher’s notes. Additionally, he would have 

been able to catch undocumented mistakes by checking for 

irregularities in the results. For example, Mr. Davenport 

checked that the quality control sample produced the expected 

results and that known samples produced correctly gendered 

profiles. Logically inconsistent results -- such as a complete 

male profile in non-semen DNA taken from the victim or a 

complete female profile generated from DNA supposedly extracted 

from semen -- could signify a mix-up. Additionally, the 

presence of a DNA profile not matching a known sample could 
United States v. Katso, 14-5008/AF 

10 

indicate contamination. These objective measures enable the 

technical reviewer to determine that cross-contamination did not 

occur. 

Mr. Davenport independently compared the DNA profiles of 

the evidentiary and known samples to verify the matches. This 

involved processing the machine-generated raw profile data using 

a computer program and interpreting the profiles to detect 

matches between the samples. Mr. Davenport then recalculated 

the probability of a match between the DNA profiles for each 

matching evidentiary sample and an individual selected at random 

from the American population. Based on review and 

interpretation of all of the above, Mr. Davenport determined 

that he agreed with Mr. Fisher’s results and initialed the Final 

Report, allowing the report to progress to the next stage of the 

review process. 

iii. Military Judge’s Ruling on Motion to Exclude Testimony 

Relying on Mr. Davenport’s motions testimony detailing his 

knowledge of and involvement in the testing process, the 

military judge concluded that “Mr. Davenport’s opinions will be 

based on his training and experience, and his review of the 

entire case,” and denied Appellee’s motion. The military judge 

found that Mr. Davenport analyzed the raw data “to ensure he 

reached the same results and conclusions as Mr. Fisher had,” and 

noted that Mr. Davenport explained he had “review[ed] the case 
United States v. Katso, 14-5008/AF 

11 

from beginning to end.” The ruling permitted Mr. Davenport to 

state his “opinion concerning the reliability of testing 

procedures used in this case, the findings/results in this case 

and the frequency statistics” only “[s]o long as Mr. Davenport 

does not become a conduit of inadmissible testimonial hearsay.” 

C. Mr. Davenport’s Court-Martial Testimony 

Mr. Davenport testified before members as an expert, 

providing his independent opinion on the results of the DNA 

analysis. Mr. Davenport told members that, as the technical 

reviewer, he based his opinions on his review of the case file. 

The Final Report was not admitted into evidence. Mr. Davenport 

only referenced the Final Report to note that he reviewed Mr. 

Fisher’s interpretation of the results and checked the Final 

Report against the documents submitted by AFOSI to make sure 

that the report properly listed and identified the items 

submitted as evidence.3

 Based on his review of the entire case 

file, Mr. Davenport testified that: 

1. The evidence collected from SrA CA and Appellee was tested 

“per protocol,” 

2. The evidence was received in a sealed condition, 

3. The evidence was inventoried properly, 

4. The known samples were analyzed properly, 

 

3

 The Final Report included evidence custody document (ECD) 

numbers for each kit. 
United States v. Katso, 14-5008/AF 

12 

5. DNA profiles were generated “from the known blood of [SrA 

CA] and [Appellee],” 

6. The swabs collected from SrA CA contained semen, 

7. DNA consistent with SrA CA and Appellee was found on the 

rectal swabs from SrA CA, 

8. Unidentifiable male DNA was found on SrA CA’s vaginal swab, 

and 

9. DNA consistent with SrA CA and Appellee was found on 

Appellee’s penile and scrotal swabs. 

Mr. Davenport also testified to the likelihood that the 

recovered DNA profiles would match other individuals. On crossexamination, defense counsel clarified briefly that Mr. 

Davenport did not conduct the initial tests that produced the 

DNA profiles. Defense counsel successfully got Mr. Davenport to 

concede that the DNA analysis did not reveal anything about the 

nature of the sexual contact. 

II. CCA DECISION 

The CCA’s analysis focused on the relationship between Mr. 

Davenport’s trial testimony and the Final Report, but did not 

directly address either the testimony on the motion in limine or 

the military judge’s findings or conclusions on that motion. 

Katso, 73 M.J. at 637-40. The CCA held that the Final Report 

was testimonial, and determined that Mr. Davenport’s trial 

testimony improperly repeated information from the report. Id.
United States v. Katso, 14-5008/AF 

13 

at 638-40. Specifically, it held that Mr. Davenport repeated 

testimonial hearsay when he identified Appellee as the source of 

the DNA found on samples collected from SrA CA, acting as a 

“conduit” for this information. Id. at 639-40 (quoting Blazier 

II, 69 M.J. at 225). The CCA found as a matter of fact that 

“the record of trial does not definitively establish that Mr. 

Davenport had first-hand knowledge as to whom the known DNA 

sample or its corresponding profile belonged” and was “able to 

identify [Appellee] by name only by repeating the testimonial 

statement contained in Mr. Fisher’s report that directly linked 

[Appellee] to the generated DNA profile.” Id. at 638-39. 

Because the Government “failed to demonstrate that the DNA 

evidence played an insignificant role” in the case, the CCA was 

not convinced beyond a reasonable doubt that Mr. Davenport’s 

presentation of the evidence was harmless. Id. at 641. 

III. DISCUSSION 

The Sixth Amendment prohibits the admission of “testimonial 

statements of a witness who did not appear at trial,” unless the 

witness is “unavailable to testify, and the defendant had had a 

prior opportunity for cross-examination.” Crawford v. 

Washington, 541 U.S. 36, 53-54 (2004). Whether evidence is 

testimonial hearsay is a question of law reviewed de novo. 

United States v. Tearman, 72 M.J. 54, 58 (C.A.A.F. 2013). We 

review the military judge’s ruling on a motion to exclude 
United States v. Katso, 14-5008/AF 

14 

evidence for an abuse of discretion, “consider[ing] the evidence 

in the light most favorable to the prevailing party.”4 Reister, 

44 M.J. at 413 (internal quotation marks omitted). 

Additionally, this Court will not overturn the CCA’s factual 

findings unless they are clearly erroneous or unsupported by the 

record. United States v. Teffeau, 58 M.J. 62, 66-67 (C.A.A.F. 

2003) (citing United States v. Tollinchi, 54 M.J. 80, 82 

(C.A.A.F. 2000)). 

A. 

“[T]he principal evil at which the Confrontation Clause was 

directed was the civil-law mode of criminal procedure, and 

particularly its use of ex parte examinations as evidence 

against the accused.” Crawford, 541 U.S. at 50. The 

Confrontation Clause thus protects defendants by excluding the 

introduction of “hearsay” that is “testimonial,” the equivalent 

of an ex parte examination. Id. at 51. Relevant to this case, 

determining whether an expert witness’s testimony has violated 

 

4

 The CCA is required to apply the same deferential standard when 

reviewing a military judge’s ruling on a motion to suppress. 

United States v. Kitts, 43 M.J. 23, 28 (C.A.A.F. 1995) (standard 

applies “on appeal” generally). However, by focusing its 

analysis on Mr. Davenport’s trial testimony as it related to the 

Final Report, Katso, 73 M.J. at 637-40, the CCA did not give 

adequate deference to the military judge’s findings of fact or 

consider the evidence supporting the ruling “in the light most 

favorable to the prevailing party.” United States v. Reister, 

44 M.J. 409, 413 (C.A.A.F. 1996) (internal quotation marks 

omitted). 
United States v. Katso, 14-5008/AF 

15 

the Confrontation Clause requires asking two questions: First, 

did the expert’s testimony rely in some way on out-of-court 

statements that were themselves testimonial? Id. at 51-52. 

Second, if so, was the expert’s testimony nonetheless admissible 

because he reached his own conclusions based on knowledge of the 

underlying data and facts, such that the expert himself, not the 

out-of-court declarant, was the “witness[] against [Appellee]” 

under the Sixth Amendment? U.S. Const. amend. VI; see Blazier 

II, 69 M.J. at 224-25; Crawford, 541 U.S. at 44. We turn to 

these two questions in order.5

B. 

This Court has already delineated the boundary between 

testimonial and nontestimonial statements in detail. “[A] 

statement is testimonial if ‘made under circumstances which 

would lead an objective witness reasonably to believe that the 

statement would be available for use at a later trial.’” United 

States v. Sweeney, 70 M.J. 296, 301 (C.A.A.F. 2011) (quoting 

United States v. Blazier (Blazier I), 68 M.J. 439, 442 (C.A.A.F. 

2010)); see Crawford, 541 U.S. at 51-52; Tearman, 72 M.J. at 58. 

 

5

 This case illustrates the gatekeeping role that military judges 

play, not only to ensure that expert testimony is reliable, but 

also to evaluate whether an expert’s conclusions rely in part on 

testimonial hearsay, and, if so, whether the expert undertook 

sufficient independent analysis to render his own opinions as 

defined in Blazier II. 69 M.J. at 224-25; cf. Daubert v. 

Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). 
United States v. Katso, 14-5008/AF 

16 

In making this determination, this Court has asked whether it 

would “be reasonably foreseeable to an objective person that the 

purpose of any individual statement . . . is evidentiary,” 

considering the formality of the statement as well as the 

knowledge of the declarant. Tearman, 72 M.J. at 58 (citation 

and internal quotation marks omitted); compare id., 72 M.J. at 

59-61 (chain of custody documents and internal review worksheets 

were not testimonial, in part because an objective witness would 

reasonably believe that the documents were filled out for 

“internal control, not to create evidence” and because they 

“lack[ed] any indicia of formality or solemnity”), with Sweeney, 

70 M.J. at 299, 304 (a signed memorandum reporting the results 

of a drug and a signed, “formal, affidavit-like” document 

certifying the integrity of the sample and compliance with 

protocol were testimonial), and Blazier I, 68 M.J. at 440, 443 

(signed declarations served an “evidentiary purpose” because 

they “summarize[d] and clearly set forth [an] ‘accusation,’” and 

were generated in response to a command request). 

As detailed more fully below, many of the out-of-court data 

and “statements” relied upon by Mr. Davenport in reaching his 

conclusion were not testimonial. The case file -- containing 

the AFOSI documents, the computer-generated raw data, and Mr. 

Fisher’s handwritten notes, including his documentation of the 

conditions of the samples upon arrival and quality control 
United States v. Katso, 14-5008/AF 

17 

measures -- is not in the record. However, Mr. Davenport’s 

testimony makes clear that he reviewed all such documents. 

Nothing suggests that the AFOSI documents, which appear to 

primarily serve a chain of custody function, see supra note 1, 

were testimonial, or that the computer-generated raw data was 

either a statement or testimonial. See Tearman, 72 M.J. at 61; 

Sweeney, 70 M.J. at 305. Nor is there any indication that Mr. 

Fisher’s notes or his other lab results that underlay the Final 

Report were signed, certified anything, bore indicia of 

formality, or that Mr. Fisher expected them to be used at trial. 

Moreover, the CCA’s “finding” that Mr. Davenport was “able 

to identify [Appellee] by name only by repeating the testimonial 

statement contained in Mr. Fisher’s report that directly linked 

[Appellee] to the generated DNA profile,” Katso, 73 M.J. at 639 

(emphasis added), was clearly erroneous and is unsupported by 

the record. See Teffeau, 58 M.J. at 66-67; Kitts, 43 M.J. at 

28; see also United States v. Piolunek, 74 M.J. 107, 110 n.3 

(C.A.A.F. 2015). Rather, the record indicates that Mr. 

Davenport learned the names of the parties the same way Mr. 

Fisher did -- through the underlying data in the case file, 

including the forms submitted by AFOSI. See supra note 1. The 

Confrontation Clause does not require either Mr. Fisher or Mr. 

Davenport to personally shadow the evidence from its collection 

to USACIL in order to opine that it is what it purports to be 
United States v. Katso, 14-5008/AF 

18 

and was collected from the persons indicated on the forms. 

Furthermore, both Mr. Fisher and Mr. Davenport were in a 

position to testify as to whether lab procedures were followed 

in this regard. 

In sum, Mr. Davenport’s statements regarding proper 

testing, receipt, inventory, and analysis of the evidence, as 

well as his identification of the parties, relied on 

nontestimonial items in the case file.6

 This testimony was 

therefore admissible. 

The Final Report, which served as a consolidated and 

conclusory summary of Mr. Fisher’s analysis, presents a more 

complicated problem, since, while it does not contain a formal 

certification, the record indicates that Mr. Fisher knew 

Appellee was a suspect in a sexual assault and that the Final 

Report would be “made official and sent to the agent in the 

case.” This problem is best resolved by assuming, arguendo, 

that the Final Report itself was testimonial, though based on 

evidence that was not testimonial, and that Mr. Davenport’s 

testimony regarding the results of the serology exam and the DNA 

analysis may have relied in part on the Final Report (since he 

 

6

 Moreover, Mr. Davenport relied on his own analysis of the data 

to rule out certain mistakes, such as contamination, that would 

produce unusual or illogical results. For example, Mr. 

Davenport testified that had the swabs from the victim been 

contaminated with the known samples from Appellee, he would have 

noticed a male non-semen DNA profile on the swabs. 
United States v. Katso, 14-5008/AF 

19 

had to conduct the technical review of it) as well as the 

evidence that underlay it. From there, we proceed to the 

question whether, given those assumptions, Mr. Davenport’s 

opinion was admissible despite its partial reliance on 

testimonial hearsay that was not itself introduced or repeated 

at trial. 

C. 

To determine whether the portions of Mr. Davenport’s 

testimony that may have been based in part on testimonial 

hearsay should have been admitted, we apply this Court’s 

precedent, from Blazier I through Tearman. Under that line of 

cases, we ask whether Mr. Davenport had sufficient personal 

knowledge to reach an independent conclusion as to the object of 

his testimony and his expert opinion. Blazier II, 69 M.J. at 

224-25. Framed another way, this Court queries whether Mr. 

Davenport was a “witness[] against” Appellee, the type of 

declarant Appellee had the constitutional right to crossexamine, or a mere “conduit” for another “witness[],” namely, 

Mr. Fisher. U.S. Const. amend. VI; Blazier II, 69 M.J. at 225; 

see Crawford, 541 U.S. at 44 (recounting Sir Walter Raleigh’s 

demand that Lord Cobham, who had implicated Raleigh in a treason 

plot, be compelled to appear in person at trial to testify 

against him). We review Supreme Court precedent and undertake a 
United States v. Katso, 14-5008/AF 

20 

highly fact-specific inquiry to determine that Mr. Davenport was 

a “witness[]” rather than a “conduit.” 

i. 

The Supreme Court has repeatedly applied the Confrontation 

Clause in the context of expert forensic analysis to determine 

whether evidence admitted at trial repeated testimonial hearsay, 

but it has not faced a situation identical to the one before us. 

Mr. Davenport, an expert with detailed knowledge of the results 

he presented, delivered testimony that does not easily fit into 

the Supreme Court’s framework. However, reviewing those 

Confrontation Clause cases most directly related to the facts of 

this case convinces us that no Supreme Court precedent bars the 

application of the principles established in Blazier II or 

warrants concluding that Mr. Davenport’s testimony simply 

repeated testimonial hearsay by an out-of-court declarant. We 

discuss each case in turn. 

In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 308, 329 

(2009), the Supreme Court held that the petitioner’s right to 

confrontation was violated when the prosecution submitted 

“certificates of analysis” into evidence without relying on the 

testimony of an expert witness. In Appellee’s case, the 

Government did not introduce the Final Report. In MelendezDiaz, the Supreme Court held that the analysts who prepared the 

certificates were “witnesses,” 557 U.S. at 311 (internal 
United States v. Katso, 14-5008/AF 

21 

quotation marks omitted), who, through the certificates, made 

only a “bare-bones statement” and did not provide the petitioner 

the opportunity to learn about the tests performed or the 

analysts’ ability to interpret those tests. Id. at 320. In 

this case, Mr. Davenport’s testimony at trial and knowledge of 

the underlying facts provided Appellee ample opportunity to 

ascertain “what tests [Mr. Fisher] performed, whether those 

tests were routine,” and whether Mr. Davenport had the requisite 

“judgment” and “skills” to interpret the results. See id.

In Bullcoming, 131 S. Ct. at 2711-12, the trial court 

allowed the state to introduce a certified report attesting to 

the petitioner’s blood alcohol content through the testimony of 

an expert witness who had no knowledge about the analysis at 

all. The Supreme Court reversed, holding that the “surrogate 

testimony” of the expert, “who had neither observed nor reviewed 

[the] analysis,” could not “convey what [the scientist] knew or 

observed about the events his certification concerned.” Id. at 

2712, 2715. Several concerns with the testimony led the Supreme 

Court to conclude that the expert had provided “surrogate” 

testimony: the expert could not describe “the particular test 

and testing process [the analyst] employed,” id. at 2715; could 

not “expose any lapses or lies on the . . . analyst’s part,” 

id.; nor could he explain why the analyst “had been placed on 

unpaid leave.” Id. Moreover, the State did not “assert 
United States v. Katso, 14-5008/AF 

22 

that . . . [the expert] had any independent opinion concerning 

[the results].” Id. at 2716 (internal quotation marks omitted). 

Here, by contrast, no certified report was introduced; Mr. 

Davenport described, based on his personal knowledge, the tests 

and testing processes used, and the means for discerning 

protocol lapses. Unlike the analyst in Bullcoming, 131 S. Ct. 

at 2715, Mr. Fisher had not been placed on unpaid leave for 

unexplained reasons; rather, Mr. Fisher missed the trial in 

order to be with his ill mother, circumstances that indicate 

neither incompetence on Mr. Fisher’s part nor a ploy by the 

Government to gain a tactical advantage. Mr. Davenport 

confirmed that he had formed and was testifying to his 

“independent opinion,” providing opportunity for crossexamination. Moreover, Mr. Davenport’s extensive review likely 

places this case well within Justice Sotomayor’s hypothetical. 

See id. at 2722 (Sotomayor, J., concurring in part) (the 

testimony might have been admissible if the expert had some 

“degree of involvement” in the testing process, as when “the 

person testifying is a supervisor, reviewer, or someone else 

with a personal, albeit limited, connection to the test at 

issue”). 

In Williams, 132 S. Ct. at 2230, the expert witness 

testified that she compared a DNA profile known to be from the 

petitioner to a DNA profile from a swab from the victim. The 
United States v. Katso, 14-5008/AF 

23 

scientist who generated the known profile also testified. Id.

at 2229. However, the DNA profile from the victim’s swab was 

produced by an outside laboratory, Cellmark, and nobody from 

Cellmark testified at trial. Id. The expert “trusted Cellmark 

to do reliable work because it was an accredited lab,” but “had 

not seen any of the calibrations or work that Cellmark had 

done.” Id. at 2230. The plurality decided that the testimony 

regarding the underlying report was not presented for the “truth 

of the matter asserted,” but rather as a basis for the expert’s 

opinion. Id. at 2236-37, 2240. Five Justices disagreed with 

this conclusion. Id. at 2258-59 (Thomas, J., concurring in the 

judgment); id. at 2268-69 (Kagan, J., dissenting, in which 

Scalia, Ginsburg, and Sotomayor, JJ., joined). 

In this case, Mr. Davenport saw all of the calibrations and 

work underlying the tests, and his close scrutiny and analysis 

of the results, comparison of the DNA profiles, and rerunning of 

the statistical analysis differed remarkably from the Williams

expert’s bald reliance on the Cellmark report, and seems to 

satisfy the concerns expressed by Justices Thomas and Kagan. 

See id. at 2258 (Thomas, J., concurring in the judgment) 

(explaining that the value of the expert’s testimony “depended 

on the truth” of the out-of-court statement on which the expert 

relied); id. at 2270 (Kagan, J., dissenting, in which Scalia, 

Ginsburg, and Sotomayor, JJ., joined) (“[The expert] became just 
United States v. Katso, 14-5008/AF 

24 

like the surrogate witness in Bullcoming -- a person knowing 

nothing about ‘the particular test and testing process,’ but 

vouching for them regardless.” (quoting Bullcoming, 131 S. Ct. 

at 2715)). Whatever the differences between Williams and this 

case may be, the lack of majority support in Williams “for any 

point but the result” means that Williams does not alter “this 

Court’s Confrontation Clause jurisprudence.” Tearman, 72 M.J. 

at 59 n.6 (dictum). 

Thus, although the Supreme Court has not provided a 

workable majority rule that would resolve this case, the Court’s 

precedent does not dictate the conclusion that Appellee lacked 

the opportunity to confront a witness against him. 

ii. 

In the absence of clear guidance from the Supreme Court, we 

are bound, within the constraints discernible from controlling 

precedent, to provide a clear rule for the military justice 

system. Fortunately, we already have a rule. This Court’s 

precedent makes clear that even when an expert relies in part

upon “statements” by an out-of-court declarant, the 

admissibility of the expert’s opinion hinges on the degree of 

independent analysis the expert undertook in order to arrive at 

that opinion. Blazier II, 69 M.J. at 224-25. 

On the one hand, experts may not “act as a conduit for 

repeating testimonial hearsay,” id. at 225, circumventing the 
United States v. Katso, 14-5008/AF 

25 

Sixth Amendment by acting as a “transmitter” instead of 

communicating an “independent judgment.” Id. (quoting United 

States v. Ayala, 601 F.3d 256, 275 (4th Cir. 2010)). For this 

reason, the testimony of an expert witness who repeated 

statements in inadmissible cover memoranda violated the 

Confrontation Clause. Id. at 226. The witness should have 

“proffer[ed] a proper expert opinion based on machine-generated 

data and calibration charts, his knowledge, education, and 

experience and his review of the drug testing reports alone.” 

Id.; see also Sweeney, 70 M.J. at 304 (an expert’s testimony 

that a document “showed the presence of cocaine and codeine” was 

erroneously admitted). On the other hand, “[a]n expert witness 

need not necessarily have personally performed a forensic test 

in order to review and interpret the results and data of that 

test.” Blazier II, 69 M.J. at 224-25; cf. M.R.E. 703 (“[F]acts 

or data . . . upon which an expert bases an opinion . . . . need 

not be admissible.”). Experts may “review and rely upon the 

work of others, including laboratory testing conducted by 

others, so long as they reach their own opinions in conformance 

with evidentiary rules regarding expert opinions.” Blazier II, 

69 M.J. at 224. That is precisely what happened here. 

This rule is not inconsistent with Williams or the 

precedent applied by the Williams plurality or dissenters. See 

supra Part III.C.i. Moreover, as Justice Kagan noted in her 
United States v. Katso, 14-5008/AF 

26 

dissent, the “clear rule” established in prior cases is “clear 

no longer,” since “[t]he five Justices who control[led] the 

outcome of [Williams] agree[d] on very little,” and “left 

significant confusion in their wake.” Williams, 132 S. Ct. at 

2277 (Kagan, J., dissenting, in which Scalia, Ginsburg, and 

Sotomayor, JJ., joined). Nonetheless, two things are clear: 

first, none of the decisions of the Supreme Court have purported 

to jettison expert testimony in toto; and, second, neither have 

they suggested that each individual who touched the evidence or 

was involved in its analysis must testify. 

And, since Williams, other courts have also focused on the 

extent to which an expert formed an independent opinion to 

determine whether the testimony was permissible in light of 

Crawford, as we did in Blazier II. See, e.g., United States v. 

Vera, 770 F.3d 1232, 1239-40 (9th Cir. 2014) (an expert’s 

opinion regarding a gang’s control over narcotics trafficking 

was admissible because the combination of the expert’s 

knowledge, even if gleaned from testimonial statements, and his 

own observations turned his opinion into “an original product 

that could have been tested through cross-examination” (internal 

quotation marks omitted)); Leger v. State, 732 S.E.2d 53, 60 

(Ga. 2012) (a laboratory supervisor’s testimony was admissible 

because her involvement in the testing gave her a “significant 

personal connection to the test”); State v. Roach, 95 A.3d 683, 
United States v. Katso, 14-5008/AF 

27 

688, 697 (N.J. 2014) (an expert was permitted to testify 

regarding the comparison between a DNA profile she generated and 

a profile generated by another analyst because she “used her 

scientific expertise and knowledge to independently review and 

analyze” the analyst’s data, and “satisf[ied] herself of the 

reliability of the results”); State v. Lopez, 45 A.3d 1, 13-14 

(R.I. 2012) (an expert’s opinion was admissible because he was 

“integrally involved” in the testing process, formulating his 

own conclusions rather than “act[ing] as a conduit of the 

opinions of, or parrot[ing] the data produced by, other[s]”).7

 

7

 See also Hingle v. State, 153 So.3d 659, 664-65 (Miss. 2014) 

(the testimony of a witness who reviewed the testing analyst’s 

report was admissible because the reviewer had “intimate 

knowledge” of the testing, and reached an “independent 

conclusion”); State v. Ortiz-Zape, 743 S.E.2d 156, 161 (N.C. 

2013) (an expert can provide testimony that relies on out-ofcourt statements so long as the expert does not “merely repeat[] 

out-of-court statements”). Some courts eschew this rule, 

however, and find a Confrontation Clause violation even if the 

expert had a high degree of involvement in the testing process 

or thoughtfully formulated her own conclusions. See, e.g., 

United States v. Turner, 709 F.3d 1187, 1188-89, 1193 (7th Cir. 

2013) (a supervisor who reviewed an analyst’s notes, data, and 

report violated the Confrontation Clause when she testified to 

the analyst’s procedures and conclusions, although the error was 

harmless beyond a reasonable doubt); Martin v. State, 60 A.3d 

1100, 1101, 1108 (Del. 2013) (the testimony of a laboratory 

manager with knowledge of lab procedures who reviewed an 

analyst’s test results and prepared her own report violated the 

Confrontation Clause because the manager relied on the analyst’s 

representations in reaching her conclusions); Jenkins v. United 

States, 75 A.3d 174, 189-90 (D.C. 2013) (a supervisor who 

assessed whether two DNA profiles matched based on his review of 

the work of biologists and technicians in his lab “relayed 

hearsay” when he repeated some of his subordinates’ observations 
United States v. Katso, 14-5008/AF 

28 

iii. 

Even if Mr. Davenport’s in-court statements that semen or 

DNA were found on the evidentiary swabs and that certain DNA 

samples matched each other were based in part on the Final 

Report, they were admissible. Mr. Davenport performed an 

extensive independent review of the case file, upon which the 

Final Report was based, during which he determined that Mr. 

Fisher took the prescribed quality control measures, that no 

accidents occurred, and that the results were logically 

consistent. He compared the ECD numbers on the Final Report to 

the numeric identifiers found elsewhere in the case file to 

check that Mr. Fisher had analyzed the correct samples. He 

reanalyzed the DNA profile data that Mr. Fisher generated to 

verify the matches that Mr. Fisher reported and recalculated the 

frequency statistics. This extensive review process, explored 

in full before the military judge during the hearing on the 

motion in limine, allowed Mr. Davenport to “satisfy [him]self of 

the reliability of the results.” See Roach, 95 A.3d at 697. In 

sum, Mr. Davenport presented his own expert opinion at trial, 

which he formed as a result of his independent review, and 

clearly conveyed the basis for his conclusions during the 

hearing on the motion in limine. 

 

and conclusions, including the conclusion that the evidence 

contained the appellant’s DNA). 
United States v. Katso, 14-5008/AF 

29 

That Mr. Davenport did not himself perform aspects of the 

tests “goes to the weight, rather than to the admissibility” of 

his opinion. Blazier II, 69 M.J. at 225. And given defense 

counsel’s limited cross-examination of Mr. Davenport at trial, 

we decline to assume that they believed that there were grounds 

to attack the tests he did not personally perform. 

D. 

We conclude that this case does not implicate the concern 

described in Crawford, as Appellee was not deprived of the 

opportunity to question and confront an opposing witness. 541 

U.S. at 50-51. Mr. Davenport’s conclusions regarding the 

presence of semen and identification of DNA were his own. Even 

if those conclusions may have derived in part from the Final 

Report, Mr. Davenport’s reliance on other, nontestimonial 

factual bases -- which also served as the foundation for the 

Final Report -- allowed him to render his own opinion. The 

witness against Appellee was not Mr. Fisher or the Final Report, 

but Mr. Davenport, who appeared in person at trial. Appellee 

had the opportunity to cross-examine Mr. Davenport about his 

review of the case file and his expert opinion, and, generally, 

to “subject [the testimony] to adversarial testing.” Id. at 43. 

Having thus parsed Mr. Davenport’s testimony, we conclude 

that it was admissible. Therefore, the military judge did not 

abuse his discretion in denying Appellee’s motion in limine, nor 
United States v. Katso, 14-5008/AF 

30 

did Mr. Davenport’s trial testimony violate Appellee’s right to 

confrontation. 

IV. DECISION 

The decision of the United States Air Force Court of 

Criminal Appeals is reversed.8

 The record is returned to the 

Judge Advocate General of the Air Force for remand to the CCA 

for further proceedings under Article 66, UCMJ, 10 U.S.C. § 866 

(2012). 

 

8

 Appellee’s motion to attach is denied, and Appellee’s motion 

for appropriate relief in the nature of directing specific 

action upon a remand to the lower court is denied without 

prejudice to his right to request such relief from that court. 

Appellant’s motion to supplement the record is also denied 

without prejudice. 
United States v. Katso, No. 14-5008/AF 

 OHLSON, Judge (dissenting): 

 To be clear, I do not disagree with much of the analysis 

and many of the conclusions contained in the majority opinion. 

Rather, I diverge from the majority’s view of this case in 

regard to just one point -- but it is a point which I believe 

proves fatal to the Government’s position. Specifically, I 

believe Appellee had a Sixth Amendment right to confront the 

initial laboratory technician, Mr. Fisher, regarding whether he 

precisely followed the required protocols for preparing the DNA 

samples, and thus whether he may have contaminated the 

evidentiary DNA sample with the known DNA sample. Because 

Appellee was not afforded this opportunity, and because I find 

an insufficient basis to conclude that the Government has met 

its burden of demonstrating that this constitutional error was 

harmless beyond a reasonable doubt, I conclude that Appellee’s 

conviction must be reversed. Accordingly, I respectfully 

dissent. 

 It would be an understatement, indeed, to say that the 

Supreme Court’s decision in Williams v. Illinois, 132 S. Ct. 

2221 (2012), where no single line of reasoning garnered a 

majority of the justices’ votes, has muddled the boundaries of 

an accused’s Sixth Amendment right “to be confronted with the 

witnesses against him.” U.S. Const. amend. VI (“In all criminal 

prosecutions, the accused shall enjoy the right . . . to be 
United States v. Katso, No. 14-5008/AF 

2 

confronted with the witnesses against him . . . .”). This is 

particularly true in those instances where, as here, forensic 

results are a central point at trial, and questions arise 

pursuant to the Confrontation Clause regarding who must testify 

about the tests that were performed, the procedures that were 

followed, and the results that were obtained. Indeed, the 

confusion that Williams has sown seems to have consigned 

appellate courts such as ours to now view the issues that arise 

in these types of Confrontation Clause cases as “through a 

glass, darkly.” Nevertheless, I conclude that by analyzing 

other applicable precedents of the Supreme Court, as well as the 

jurisprudence of our own Court, answers to these questions may 

ultimately be discerned. 

 The majority does a thorough job of reciting the facts in 

this case, and therefore I will not repeat them in toto. 

Instead, I merely note the following points which I view as 

essential to the proper understanding and analysis of the issue 

before us. 

 First, Mr. Fisher handled and prepared for testing both the 

material that contained the evidentiary DNA samples and the 

material that contained the known DNA samples. As a result, 

there was a potential for contamination of the two samples. 

This potential was significantly increased if Mr. Fisher did not 

precisely follow the laboratory’s protocol when handling and 
United States v. Katso, No. 14-5008/AF 

3 

preparing the samples, and such contamination would render 

meaningless any subsequent analysis. 

 Second, although Mr. Davenport compared the data from the 

two DNA samples that previously had been prepared by Mr. Fisher, 

he did not handle the original evidence that was submitted to 

the laboratory and did not independently prepare his own DNA 

samples for testing. Moreover, Mr. Davenport did not observe 

Mr. Fisher’s handling of the original evidence, nor did he 

observe Mr. Fisher’s preparation of these samples. Accordingly, 

Mr. Davenport’s “verification” that Mr. Fisher followed the 

required protocol consisted of reviewing Mr. Fisher’s written 

statements in the file in which Mr. Fisher asserted that he had 

done so. 

Third, in motions practice, Appellee not only sought to 

require Mr. Fisher’s testimony at the court-martial, he also 

specifically cited as a basis for this demand his concern about 

potential contamination of the DNA samples. Appellee presumably 

wanted to question Mr. Fisher about the precise steps he took in 

preparing the samples, as well as to probe the credibility and 

reliability of this witness. As Justice Kagan noted in her 

dissenting opinion in Williams: “[A] defendant may wish to ask 

the analyst a variety of questions: How much experience do you 

have? Have you ever made mistakes in the past? Did you test 

the right sample? Use the right procedures? Contaminate the 
United States v. Katso, No. 14-5008/AF 

4 

sample in any way?” 132 S. Ct. at 2275 (Kagan, J., dissenting, 

in which Scalia, Ginsburg, and Sotomayor, JJ., joined). 

Fourth, despite Appellee’s articulation of his concern 

about contamination, the military judge denied Appellee the 

opportunity to confront Mr. Fisher at trial, essentially ruling 

that Mr. Davenport was an adequate substitute for Mr. Fisher and 

that his appearance satisfied the requirements of the 

Confrontation Clause. 

 Fifth, when Mr. Davenport appeared before the courtmartial, he did not testify that if Mr. Fisher followed all of 

the required protocols and if Mr. Fisher did not commit any 

errors or mistakes, then, in his opinion, the DNA samples were 

properly handled and prepared and the results of the testing 

could be relied upon. Rather, Mr. Davenport merely assumed, 

without saying so, that Mr. Fisher’s written assertion in the 

file that he had not committed any mistakes or errors was true, 

and then testified before the panel members that the proper 

protocols were followed and that his own independent examination 

of the computer files relating to the samples prepared by Mr. 

Fisher demonstrated that the evidentiary sample matched the 

known sample. 

 In turning to my analysis of these facts and the 

applicable law, I first must emphasize that I do not contest the 

proposition that an appropriately credentialed individual may 
United States v. Katso, No. 14-5008/AF 

5 

give expert testimony regarding data produced by another 

laboratory technician. United States v. Blazier (Blazier II), 

69 M.J. 218, 222 (C.A.A.F. 2010) (“[A]n expert may, consistent 

with the Confrontation Clause and the rules of evidence, (1) 

rely on, repeat, or interpret admissible and nonhearsay machinegenerated printouts of machine-generated data, and/or (2) rely 

on, but not repeat, testimonial hearsay that is otherwise an 

appropriate basis for an expert opinion, so long as the expert 

opinion arrived at is the expert’s own.” (citations omitted)). 

Further, I do not seek to suggest that every individual who 

touches DNA evidence as it progresses from the crime scene to 

the courthouse must testify at trial. See Melendez-Diaz v. 

Massachusetts, 557 U.S. 305, 311 n.1 (2009). Not at all. 

 On the other hand, however, I also note that it is a simple 

fact that “[f]orensic evidence is not uniquely immune from the 

risk of manipulation [and mistake].” Id. at 318. Therefore, a 

defendant’s right to confront and cross-examine laboratory 

technicians regarding the steps they took in developing this 

forensic evidence may not be summarily curtailed merely because 

science and statistics are involved. To the contrary, an 

accused has the right to ask “questions designed to reveal 

whether [a lab analyst’s] incompetence . . . or dishonesty” 

tainted the forensic results. Bullcoming v. New Mexico, 131 S. 
United States v. Katso, No. 14-5008/AF 

6 

Ct. 2705, 2715 (2011). In the instant case, Appellee was not 

afforded that right. 

 Mr. Davenport was an expert on, among other issues, what 

the laboratory protocols were in a case such as this one. 

However, he was not an expert on the issue of whether Mr. Fisher 

unerringly followed those protocols. Accordingly, Mr. Davenport 

could use his expertise to examine and testify about such issues 

as the efficacy of the laboratory protocols, whether there were 

irregularities between the samples that were tested, whether the 

two samples matched one another, and the statistical likelihood 

that Appellee was the source of the evidentiary DNA. However, 

despite his expertise on these issues, in determining whether 

Mr. Fisher actually followed the protocols that were required of 

laboratory technicians, the underlying facts in this case show 

that Mr. Davenport relied on Mr. Fisher’s out-of-court written 

assurances that he had done so. This was testimonial hearsay. 

See Bullcoming, 131 S. Ct. at 2715 (stating that surrogate could 

not expose any lapses or lies on the certifying analyst’s part). 

 In analyzing this concern, I first note that Mr. Fisher’s 

routine written assurances in the file that he properly 

performed all the required procedures and did not commit any 

mistakes or errors did not carry with them any particular 

indicia of reliability. But more importantly, I further note 

that “‘reliability’ is no substitute for [the] right of 
United States v. Katso, No. 14-5008/AF 

7 

confrontation.” Blazier II, 69 M.J. at 223. As the Supreme 

Court explained in Crawford v. Washington, “Where testimonial 

statements are involved, . . . . [the Confrontation Clause] 

commands, not that evidence be reliable, but that reliability be 

assessed in a particular manner: by testing in the crucible of 

cross-examination.” 541 U.S. 36, 61 (2004). 

 Second, as pointed out by the majority, I acknowledge that 

these written assurances, along with Mr. Fisher’s other notes, 

the test results, and the written report, were not admitted into 

evidence, and therefore this case does not squarely present the 

type of Confrontation Clause issues that the Supreme Court 

addressed in Bullcoming and Melendez-Diaz. Nevertheless, in my 

view, Mr. Davenport effectively repeated the out-of-court 

statements made by Mr. Fisher when he testified that Mr. Fisher 

had followed standard procedures in preparing the DNA samples -- 

a putative fact about which Mr. Davenport had no independent 

knowledge. Moreover, when the military judge denied Appellee’s 

request to have Mr. Fisher testify, the military judge 

effectively rendered impervious to cross-examination and attack 

the issue of whether Mr. Fisher contaminated the evidentiary 

sample. See Bullcoming, 131 S. Ct. at 2715 n.7. (an accused 

has a right to question a laboratory technician about his 

“proficiency, the care he took in performing his work, and his 

veracity”). 
United States v. Katso, No. 14-5008/AF 

8 

Accordingly, I conclude that Justice Kagan’s dissenting 

opinion in Williams, which managed to garner the votes of four 

justices despite the highly fractured nature of the Court, 

neatly and succinctly captures the essence of what I believe to 

be still-controlling precedent in regard to the required 

analysis of cases such as the one before us: 

Under our Confrontation Clause precedents, this 

is an open-and-shut case. The State of Illinois 

prosecuted Sandy Williams for rape based in part on a 

DNA profile created in Cellmark’s laboratory. Yet the 

State did not give Williams a chance to question the 

analyst who produced that evidence. Instead, the 

prosecution introduced the results of Cellmark’s 

testing through an expert witness who had no idea how 

they were generated. That approach -- no less 

(perhaps more) than the confrontation-free methods of 

presenting forensic evidence we have formerly banned -

- deprived Williams of his Sixth Amendment right to 

“confron[t] . . . the witnesses against him.” 

Williams, 132 S. Ct. at 2265 (Kagan, J., dissenting, in which 

Scalia, Ginsburg, and Sotomayor, JJ., joined) (alteration in 

original). 

Moreover, I note that there are aspects of the instant case 

that differ from the facts in the Williams case and, in my view, 

these differences serve to make the Confrontation Clause problem 

more acute here. First, in Williams the plurality seemed to 

place significant emphasis on the fact that the purpose of the 

laboratory DNA profile was not “to create evidence for use at 

trial.” Id. at 2243. Justice Alito noted that at the time 

Cellmark analyzed the DNA sample, no one had been identified as 
United States v. Katso, No. 14-5008/AF 

9 

the possible perpetrator of the offense and it was unclear that 

anyone would ever be arrested. Id. at 2243-44. Not so here. 

Mr. Fisher knew from the outset that an accused had been 

identified, and thus he knew that when he wrote his notes and 

conducted his tests, he likely was “creat[ing] evidence for use 

at trial.” Id. at 2245. This fact places Mr. Fisher’s 

statements “squarely within the heartland of Confrontation 

Clause jurisprudence.” United States v. Turner, 709 F.3d 1187, 

1193 (7th Cir. 2013). 

Second, this was a court-martial with panel members rather 

than a military judge-alone trial. By the plurality’s own 

reckoning in Williams, this increased the chances that the trier 

of fact relied on the out-of-court statements implicit in Mr. 

Davenport’s testimony for their truth. See Williams, 132 S. Ct. 

at 2236 (“The dissent’s argument would have force if petitioner 

had elected to have a jury trial.”). 

 Although the Government elicited testimonial hearsay from 

Mr. Davenport, this does not end my Confrontation Clause 

inquiry. I next turn my attention to the Supreme Court’s 

decision in Crawford where, as the majority notes, the Court 

held that a prosecutor’s use of testimonial hearsay violates the 

Confrontation Clause -- unless the declarant is unavailable and 

the defendant had a prior opportunity to cross-examine the 

declarant. 541 U.S. at 59. I concede that this provides a 
United States v. Katso, No. 14-5008/AF 

10 

significant exception to the Confrontation Clause in particular 

instances. However, I do not believe that the holding in 

Crawford is applicable to the instant case because I am not 

convinced that the record of trial supports the military judge’s 

finding that Mr. Fisher was unavailable to testify. 

 First, the military judge noted that based on 

communications with counsel, Mr. Fisher himself estimated that 

he would be available for witness interviews on “approximately 

Tuesday, 3 May 2011.” Because Appellee’s court-martial began on 

May 3, 2011, and continued through May 6, 2011, Mr. Fisher’s own 

estimation of his schedule made him available for questioning. 

Further, the military judge found as fact that Mr. Fisher would 

be “unable to travel to testify at the court-martial until 5 May 

11 at the earliest.” Because the record reflects that Mr. 

Davenport, Mr. Fisher’s substitute, was not called to testify in 

this case until the evening of May 5, the military judge’s own 

findings indicate that Mr. Fisher likely was available to 

testify. Accordingly, I conclude that there was a Confrontation 

Clause violation under Crawford because Mr. Fisher should not 

have been considered unavailable to testify at Appellee’s trial. 

 And finally, I find that the DNA evidence was a central and 

integral element of the Government’s case against Appellee, and 

that the Government was unable to demonstrate that the 

constitutional error pertaining to that evidence was harmless 
United States v. Katso, No. 14-5008/AF 

11 

beyond a reasonable doubt. Stated differently, I find that 

“‘there is a reasonable possibility that the evidence complained 

of might have contributed to the conviction.’” Chapman v. 

California, 386 U.S. 18, 23 (1967) (quoting Fahy v. Connecticut, 

375 U.S. 85, 86-87 (1963)). Accordingly, I conclude that 

Appellee’s conviction must be reversed, and I respectfully 

dissent.