Michael R. Lied

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Jason Negron was convicted of residential burglary. 

At trial, Negron had filed a motion to exclude the testimony of the State’s Cellmark expert witness, Gina Pineda, and certain DNA evidence.  The basis for the motion was that Pineda did not actually perform the DNA test. Negron argued that the DNA report was testimonial evidence that should not be admitted because it would violate the holding of Crawford v. Washington, 541 U.S. 36 (2004).

Negron also filed a motion to bar the opinion testimony of a fingerprint expert, William Kovacs, arguing that there was no foundation for his opinion because the prosecution tendered no notes in pretrial discovery concerning Kovacs’ examination of the fingerprints, and because Kovacs gave no basis in his report for his opinion that the latent prints recovered from the scene matched Negron’s prints. The trial court found that Negron’s motion was premature but granted it, anyway, stating that the state could try to lay a proper foundation at trial.  Kovacs was ultimately allowed to testify. On appeal, Negron argued that the Kovacs’ testimony lacked sufficient foundation and therefore was inadmissible.

In the area of fingerprint evidence, expert testimony based on scientific knowledge is necessary.  People v. Hunley, 313 Ill. App. 3d 16, 29 (2000). The proponent must lay a foundation to establish the reliability of the information upon which the expert relies. People v. Safford, 392 Ill. App. 3d 212, 221 (2009), appeal denied, 233 Ill. 2d 590 (2009).

Negron contended that Kovacs’ testimony was deficient because he did not document the features that led him to his conclusion and did not count the areas of similarity between the latent prints and Negron’s prints. Negron asserted that this type of testimony—where no explanation was provided for how the expert reached his opinion—was inadmissible because it deprived Negron of any means to challenge the conclusion of the expert.

In Safford, the expert provided no testimony as to how he arrived at his conclusion that the latent print could only belong to the defendant. His testimony therefore lacked an adequate foundation and was inadmissible.   The expert’s testimony amounted to little more than ‘take my word for it.

However, Kovacs not only explained the process of fingerprint comparison, but testified how he compared the prints, including a description of the various details he looked for in the comparison process. Kovacs compared the prints side-by-side and testified that he found unique areas in the minutia that matched.  Kovacs also later confirmed his opinion with a new set of palm print standards from Negron.  

In the view of the appeals court, Negron’s argument about the number of points of fingerprint similarity addressed to the weight of the evidence, not its admissibility. 

Moreover, the number of points of comparison was part of the facts underlying the expert opinion and the burden was on the defense to elicit such facts.  The Illinois Supreme Court adopted Federal Rule of Evidence 705 and under that rule, the burden is placed upon the adverse party, during cross-examination, to uncover the facts underlying the expert opinion.

The defense vigorously cross-examined Kovacs regarding his lack of notes and the fact that he did not rest his analysis or ultimate opinion on a specific number of comparison points, but the jury determined the weight of credibility was with the State’s expert witness.

Negron also argued that Pineda’s testimony regarding the results of the DNA analysis at Cellmark violated his sixth amendment right of confrontation because she was not the person who actually performed the analysis.

This argument was doomed. In Williams v. Illinois, 567 U.S. ____, 132 S. Ct. 2221 (2012), a plurality of the U.S. Supreme Court held that the confrontation clause of the sixth amendment was not implicated by expert opinion testimony from a forensic DNA analyst who did not personally conduct the DNA analysis.

The plurality concluded that this form of expert testimony does not violate the Confrontation Clause because that provision does not apply to out-of-court statements that are not offered to prove the truth of the matter asserted.

An expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.

The appeals court found the narrow holding by the Supreme Court plurality in Williams was applicable; the admission of the expert testimony of an expert who did not personally perform the DNA analysis does not violate the confrontation clause.

The court of appeals noted that the DNA report was not prepared for the primary purpose of accusing a targeted individual or for the primary purpose of providing evidence in a criminal case.  In fact, Negron could have requested a viewing of any analysis conducted by the Illinois State Police.

The appeals court noted a potential concern regarding the admission of such testimony based on DNA reports prepared by nontestifying witnesses in jury trials. Juries may not appreciate the subtle distinction that the underlying facts in the reports are not offered for the truth of the matter asserted as easily as a judge might. This is especially true because DNA and other forensic evidence is now commonly considered as almost conclusive evidence by many people.

Nevertheless, the evidence was strong in this case and there was no indication that the jury either felt the evidence was close or had questions concerning the evidence.

Therefore, the trial court properly admitted the testimony of both the fingerprint expert and the DNA expert.

People v. Negron, 2012 IL App (1st) 101194

· Michael R. Lied
· Howard & Howard Attorneys PLLC
· One Technology Plaza, 211 Fulton Street, Suite 600, Peoria, IL 61602
· (309) 999-6311
· MLied@howardandhoward.com