SJC hears challenge to substitute DNA analyst testimony after Smith v. Arizona

The Supreme Judicial Court heard argument in Commonwealth v. Antonio B. Nascimento DePena over whether testimony from a substitute or reviewing DNA analyst violated the Sixth Amendment's confrontation clause and Massachusetts evidentiary precedents.

Defense counsel Attorney Benyon told the court the case “is pretty clear and on point” with respect to Smith v. Arizona and argued the substitute analyst’s testimony improperly conveyed the underlying analyst’s results to the jury, which created prejudice for the defendant.

The issue, Benyon said, was not whether a reviewing analyst can describe lab procedures but whether the witness impermissibly vouched for another analyst’s raw test results and calculations. “It's those calculations that even though she did them, they're still based on the underlying chemist's work,” Benyon said, adding that the jury could treat that testimony as corroboration of the Commonwealth’s theory.

David Mark, appearing “for the Commonwealth,” acknowledged errors in the way the evidence was presented and in the state's brief, conceding that portions of the reviewing analyst Jessica Hart’s substantive testimony reflected the underlying analyst Kira Snyder’s report. Mark said the Commonwealth would specify by page and line numbers which portions it now agrees were erroneously admitted and characterized the error as both evidentiary and, potentially, a confrontation-clause problem.

Justices pressed both sides on doctrine and remedy. Counsel and the justices discussed Smith v. Arizona at length, including whether Smith altered Massachusetts practice or simply reinforced preexisting state authorities (Williams, Grenader/Granadere and related lines of cases). One justice read aloud key language from Smith: “neither may the state introduce those statements through a surrogate analyst who did not participate in their creation,” and asked whether Smith requires reversal where a substitute’s opinion depends on an out-of-court analyst’s work.

The court also debated standard-of-review issues. The Commonwealth urged the court to treat the error as harmless on these facts, noting that the defendant’s strategy relied on the same DNA package and that defense counsel had, at trial, used the laboratory reports. Defense counsel disputed that characterization, pressing that the absence of the original analyst from cross-examination created a substantial risk of a miscarriage of justice.

Argument also focused on concrete transcript points: counsel identified specific portions of volume 5 of the trial transcript (pages 61, 62–63, 67–68 and roughly 71–72) as where the reviewing analyst moved from procedural testimony to recounting another analyst’s underlying calculations and conclusions. The Commonwealth agreed it would follow up with a letter identifying the precise page-and-line concessions.

The justices probed hypothetical lines between permissible testimony about lab protocols and impermissible recounting of another analyst’s results. Counsel debated whether a reviewing analyst may describe lab standards, verify arithmetic, or give an independent bottom-line opinion without creating confrontation problems when the tester who performed the wet-lab work is absent.

The argument concluded with the Commonwealth urging the court to deem the error harmless on the facts presented and to decline to expand Smith beyond its core holding; defense counsel urged reversal on confrontation and prejudice grounds. The court did not announce a decision at argument.