My colleague Joe Hyde blogged last week about the Court of Appeals’ determination in State v. Tate, __ N.C. App. ___ (June 18, 2025), that the trial court did not err when it instructed the jury on a theory that was not alleged in the indictment. I’m returning to Tate this week to discuss another aspect of the Court’s holding, namely its determination that the defendant’s confrontation clause rights were not violated when an expert from the State Crime Lab testified to an opinion that was based in part on DNA test results generated by private third-party laboratory. This post will unpack the court’s analysis of that issue and will consider what it might mean for testimony by substitute analysts more generally.
Facts. The defendant in Tate was indicted in 2021 for an alleged rape that occurred in Greenville, North Carolina, ten years earlier, on June 1, 2011. That day, the victim drank heavily at an apartment pool, where she encountered three men. She was later taken by car to an apartment complex. The victim next remembered awakening in a bed with a man having vaginal sex with her. Another man was called into the room and she was “motioned” to perform oral sex on that man. As a third man came into the room, the victim began regaining awareness. After the men left the apartment, the victim also fled to seek help. She was taken to the hospital where a nurse gathered samples and evidence, which the nurse packaged in a sexual assault kit and delivered to a detective with the Greenville Police Department.
The police had no leads, and the case went cold until the police department obtained federal grant funds to test sexual assault kits. In 2017, James Tilly, who was hired by the police department with those grant funds, mailed the victim’s sealed, untested kit to Sorenson Labs, a private DNA testing facility in Utah. Sorenson’s analysis returned positive for the presence of male DNA. Tilly then sent those results to the State Crime Lab, where they were entered into the State’s DNA database. That generated an initial match with a DNA entry for the defendant.
Law enforcement officials then collected a buccal swab and blood and urine samples from the defendant. Tricia Daniels, a forensic scientist for the State Crime Lab, tested those samples and compared them to the DNA profile generated by Sorenson. At trial, Daniels testified that the DNA samples collected from the defendant were a probable match to the DNA results generated by Sorenson.
The defendant was convicted at trial and appealed.
Issue on appeal. The defendant argued that the trial court violated his Confrontation Clause rights by allowing Daniels to testify about the DNA profile generated by Sorenson without requiring the State to produce the Sorenson analyst.
Court’s analysis.
Hearsay. The Court agreed with the defendant that the Sorenson DNA analysis formed the basis for Daniels’ expert opinion that the male DNA collected from the victim matched the DNA collected from the defendant. Slip op. at 28-29 (citing Smith v. Arizona, 602 U.S. 779, 780 (2024) for the proposition that “the jury cannot decide whether the expert’s opinion is credible without evaluating the truth of the factual assertions on which it is based.”). The Court explained that “[b]ecause the DNA profile generated by Sorenson ‘gives value’ to the match produced by Ms. Daniels,” Daniels’ testimony about Sorenson’s report of its analysis was hearsay offered for the truth of the defendant being the perpetrator of the crime. Id. at 29.
Not testimonial. The Court then considered whether Sorenson’s report of its analysis was testimonial, explaining that even if the report was hearsay, a defendant’s Confrontation Clause rights are not implicated unless a statement is both hearsay and testimonial. Id. (noting that the United States Supreme Court in Smith, 602 U.S. at 800, did not determine whether the out-of-court statements of the original analyst were testimonial).
Citing precedent establishing that reports created solely to aid in the police investigation of a defendant are testimonial, see Slip op. at 31-32 (citing Bullcoming v. New Mexico, 564 U.S. 647, 652-53 (2011); State v. Craven, 367 N.C. 51, 54 (2013); State v. Clark, __ N.C. App. __ , ___, 909 S.E.2d 566, 567 (2024)), the Tate Court distinguished the testing done by Sorenson from laboratory testing done to identify “substances seized from or found with the defendant,” see Slip op. at 32. The Court noted that in Williams v. Illinois, 567 U.S. 50 (2012), four justices in the plurality reasoned that DNA test results generated by a private, third-party laboratory’s analysis of samples seized from the victim were not testimonial because the laboratory’s purpose in testing the samples was not “‘for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose.’” Slip op. at 34-35 (quoting Williams, 567 U.S. at 58-59). The Tate Court reasoned that Sorenson likewise analyzed the samples from the instant victim solely to identify the presence of someone else’s DNA and “not to identify a potential suspect.” Slip op. at 36. Thus, the Court concluded that the DNA profile generated by Sorenson was not testimonial as it was not generated “‘solely to aid in the police investigation’” of the defendant. Slip op. at 36 (quoting Clark, ___ N.C. App. __, ___, 909 S.E.2d at 570). For that reason, the Court held that the trial court did not err in allowing Daniels to testify about her comparison of the defendant’s DNA to the profile generated and reported by Sorenson.
Harmless error. Finally, the Court held that even if Daniels’ testimony regarding the Sorenson report violated the defendant’s confrontation rights, the violation was harmless error given the other substantial evidence in the case, which included the defendant’s admission to having sex with the victim on the date in question.
The bigger picture. Last year, the United States Supreme Court held in Smith v. Arizona, 602 U.S. 779 (2024), that statements from an absent laboratory analyst that a testifying analyst conveyed to support his expert opinion about the chemical composition of the substances seized from the defendant were hearsay. In other words, Smith rejected the notion that an expert can convey statements that inform the basis of the expert’s opinion without running afoul of the Confrontation Clause because those statements are not hearsay. Smith held that when those statements support the expert’s opinion only if they are true, they are admitted for the truth of the matter asserted and thus are hearsay. The Supreme Court had confronted that issue previously in Williams v. Illinois, 567 U.S. 50 (2024), the case relied upon in Tate. In Williams, a four-justice plurality concluded that an expert could disclose the results of an analysis by a third party laboratory to explain the basis of her opinion that the petitioner’s DNA matched the profile created by the third-party laboratory, reasoning that (1) when an expert does so, those facts are not admitted for their truth and (2) the DNA test results generated by the third-party laboratory were not testimonial because the report was not sought for purpose of obtaining evidence against the petitioner. Smith abrogated Williams on the hearsay issue but did not address its reasoning about whether the third-party test results were testimonial. Indeed, Smith remanded the matter before it to the state court to determine whether the statements relied upon by the testifying analyst were testimonial. Thus, Smith eliminated one basis for the admission of information about a non-testifying analyst’s work (the nonhearsay basis) but left open the possibility that some evidence of this sort still may be admitted on the basis that it is nontestimonial.
What is nontestimonial? Tate carves out as nontestimonial the statements and results from a large swath of forensic analyses, arguably capturing within that ambit any analysis performed before a suspect is identified that tends to exculpate individuals not implicated in the analysis. Slip op. at 36. These types of analysis include, but certainly are not limited to, DNA profiles. For example, under the test set forth in Tate, an expert analyst arguably may testify about her reliance on an autopsy performed by another, non-testifying analyst if, at the time the autopsy is performed, a suspect (and perhaps even a crime) has not been identified. See ,e.g., Commonwealth v. Bloom, 2025 Wl 1901932, ___ A.3d ___ (Pa. Super. July 10, 2025) (concluding that trial court’s admission of pathologist’s testimony regarding toxicology report of victim did not violate the defendant’s confrontation rights; reasoning that toxicology report was created for the primary purpose of establishing the victim’s cause of death rather than to “prove some fact in a criminal proceeding, to serve an evidentiary purpose, or to aid in a police investigation.”); Jackson v. State, No. 14-24-00241-CR, 2025 WL 1934181, at *4 (Tex. App. July 15, 2025) (not yet released for publication) (citing earlier cases standing “for the proposition that raw DNA data generated by non-testifying analysts is not testimonial because it does not serve as an out-of-court substitute for trial testimony,” and finding no violation of defendant’s confrontation rights where testifying witness linked the DNA profile created by a third-party laboratory “which [stood] for nothing on [its] own,” to the defendant’s DNA).
Recall also that the North Carolina Supreme Court held in State v. Lester, 387 N.C. 90 (2025) (discussed here) that machine-generated raw data is not hearsay and is not testimonial under the Confrontation Clause. While phone records automatically generated by a service provider’s computers were the data at issue in Lester, the Court cited data produced by a gas chromatograph as another example of machine-generated data that “fall[s] outside the [Confrontation] Clause’s sweep.” Id. at 101-02. Thus, Lester indicates that a substitute forensic analyst may provide expert testimony that is based on the machine-generated data that informed the original analysts’ report because that information is not hearsay and is not testimonial. See, e.g., Gurley v. State, 710 S.W.3d 368, 378 (Tex. App. 2025) (holding that admission of testimony from toxicologist who reviewed raw data collected by other analysts who tested the defendant’s blood and who formed his own conclusions did not violate defendant’s confrontation rights).
To be sure, allowing this sort of testimony undercuts some of the interests Smith said its rule was designed to protect because a defendant would not be able to cross-examine the testing analyst about “what she did and how she did it” and whether the machine-generated “results should be trusted.” 602 U.S. 799-800; see, e.g. State v. Hall-Aught, 569 P.3d 315 (Wa. 2025) (finding violation of the defendant’s confrontation rights when supervisor of laboratory who did not herself test the the defendant’s blood but reviewed the work of another technician and signed off on the technician’s report testified about the tests performed by the technician and the results of those tests); State v. Widerman, 2025 WL 995110, 339 Or. App. 380, 397 (2025) (unpublished), opinion adhered to as modified on reconsideration, 340 Or. App. 746 (2025) (explaining that even though the testifying analyst, who did not herself test the defendant’s blood, had access to the results from the testing instruments, “that data could not provide her with personal knowledge of how defendant’s blood was prepared and tested, that is, whether the analysts followed the lab’s procedures as a factual matter and, consequently, whether the machine-generated results were accurate”; concluding that the admission of the testimony violated the defendant’s confrontation rights); cf. United States v. Seward, 135 F.4th 161, 169 (4th Cir. 2025) (opining that the State may not “sidestep Sixth Amendment problems created by having a witness testify to their opinions that are founded on a non-testifying analyst’s out-of-court statements by simply omitting any questions about the analyst’s work,” and stating that the “obvious implication” of the DNA expert’s testimony is that she “was representing that the non-testifying analyst who ran the underlying tests in fact followed the procedures the DNA expert had just described.”) Nevertheless, Smith itself left this door open by indicating that not all statements made by an analyst are necessarily testimonial. Id. at 801-02.
Where things stand. There were many questions in Smith’s wake about its import for substitute analyst testimony. One view was that following Smith, a substitute analyst could almost never testify to the results of a forensic analysis done by someone else. Another was that Smith was more limited and did not portend the end for testimony by an analyst other than the person who performed the original work. Tate (and Lester before it) lend support to the latter view—though many questions remain.