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Court News Ohio

Right to Confront Witnesses Not Violated When Defendant Stipulates to Report from Expert Witness Who Does Not Testify at Trial

A Marietta man who claimed that a trial court took away his right to confront a witness about a DNA report lost his appeal today in the Supreme Court of Ohio.

During trial, David Arden Keck II’s attorney agreed (stipulated) to the admissibility and content of a report from a forensic analyst who was not called to testify in person. In a unanimous decision, the Supreme Court ruled that a second expert’s testimony that relied on the stipulated report did not infringe on Keck’s constitutional right to confront witnesses against him.

The decision, authored by Justice Judith Ann Lanzinger, affirms the judgment of the Fourth District Court of Appeals.

Keck was found guilty in 2009 of multiple counts of rape, gross sexual imposition, pandering obscenity involving a minor and to a minor, and other offenses involving children. He was sentenced to 71 years in prison.

Mark Losko of the Bureau of Criminal Identification and Investigation (BCI) had created DNA profiles based on oral swabs taken from Keck and the alleged victims. BCI forensic scientist Kristen Slaper testified at trial that she also developed genetic profiles from evidence samples found in Keck’s home. She then compared her profiles to Losko’s and determined that several of her samples contained genetic material matching Keck’s profile, and other evidence matched the DNA of two alleged victims.

Losko was also scheduled to testify at the trial. However, the day before he was to appear, Keck’s attorney stipulated to the admissibility and content of Losko’s entire report. The state’s attorney then informed the court that the state would not call Losko to testify given the stipulation of the report.

Following the verdict, Keck appealed to the Fourth District arguing that because he was denied the chance to cross-examine Losko about the report, his right to confront witnesses as guaranteed by the Sixth Amendment to the U.S. Constitution was violated. The appellate court held, however, that Keck’s right to confront witnesses had been satisfied. Keck asked the Ohio Supreme Court to review the decision, and the court agreed to hear the case.

In her opinion for the court, Justice Lanzinger reviewed recent federal decisions involving the Confrontation Clause. She noted that, unlike this case, none of them involved a defendant who had stipulated to the admissibility and content of a report that another expert witness relied on.

“By stipulating to Losko’s report, Keck waived any argument that the report was inadmissible or inaccurate,” she wrote. “By stipulating, Keck agreed that the report was admissible and a truthful representation of Losko’s findings; he could no longer assert any right to confront Losko. It is especially revealing that, according to the record, the state was prepared and willing to call Losko to testify before Keck agreed to the stipulation. It was thus Keck’s own decision that rendered Losko’s testimony unnecessary. We cannot hold that Keck’s confrontation rights were violated.”

Joining the court’s opinion were Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Sharon L. Kennedy, and Judith L. French. Justices Terrence O’Donnell and William M. O’Neill concurred only in the judgment of the court.

2011-0686. State v. Keck, Slip Opinion No. 2013-Ohio-5160.

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