A DNA analyst’s testimony was valid in a burglary trial, even though she did not process the sample in one piece of evidence used to convict the defendant, the state Supreme Court ruled on Monday.

“[L]ocal law enforcement outsourced DNA testing and an expert then testified relying on the results of testing performed by someone else,” wrote Justice Monica M. Márquez. “But the defense here failed to object to the admission of such testimony on Confrontation Clause grounds.”

The Denver Police Department Crime Laboratory analyzed a soda can found at the scene of a home burglary and matched the DNA to a profile of Brandon D. Campbell in the Colorado Bureau of Investigation’s database. Police arrested Campbell and took another DNA sample for comparison. Campbell filed a request to prosecutors for the testimony of “any employee or technician” from CBI or from the Denver Police Department who was involved in the testing.

Subsequently, Campbell’s DNA matched that found on a plum at another burglary scene. 

The defense attempted to block the evidence from the second crime scene, but a judge denied it. At trial, the DNA analyst who processed the initial samples – but not the plum sample – testified. Campbell had not specifically requested the testimony of the plum analyst.

The analyst acknowledged that it was not possible to say whether the DNA came from Campbell’s saliva or when and how it was deposited on the objects. Campbell’s lawyer did not dispute that the DNA was the defendant’s, but did question whether the DNA got on the soda can and the plum during the burglaries.

Campbell received convictions for burglary, theft and criminal trespass. He appealed, citing a violation of his Sixth Amendment right to confront witnesses against him, due to the lack of testimony from the plum analyst.

The Colorado Court of Appeals ruled against Campbell, citing that he failed to object at trial.

Márquez wrote that “state and federal courts have struggled to discern a clear test for the admission of expert testimony relying on DNA test results performed by a non-testifying analyst.” However, “any error here was not so obvious that the trial judge should have identified it without the benefit of an objection.”

The 2014 case of People v. Merritt decided that testimony from an autopsy expert who did not perform the autopsy in the case at hand was nevertheless permissible. The majority indicated that in that case, as in Campbell’s, there was no error in allowing the testimony that would have clearly affected the outcome.

Justices Melissa Hart and William W. Hood, III joined a dissent from Justice Richard L. Gabriel. While the three justices agreed with the handling of the DNA evidence, they objected to the majority’s order for re-sentencing after prosecutors mislabeled a past conviction of Campbell’s as a drug offense instead of a felony trespass. The prosecution pursued habitual offender charges against him due to his past felonies.

“The statute expressly requires the prosecution to allege the specific felony,” Gabriel wrote. “Today, the majority adopts a rule that effectively allows prosecutors to convict defendants on charges different from those specifically alleged, by name, in the charging instruments.”

He added that he would have reversed Campbell’s conviction. The majority called the discrepancy in labeling a “simple variance.”

The case is Campbell v. People.