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Court hears arguments in confrontation case

October 9, 2008

The Indiana Supreme Court heard arguments today in a case that asks whether the defendant had the right to confront the lab technician who performed the DNA testing relevant to the case.

The Indiana Court of Appeals affirmed Richard Pendergrass' child molesting convictions in Richard Pendergrass v. State, 71S03-0808-CR-445.

One of the core issues of this case is whether the lab technician's supervisor, Lisa Black, who testified on behalf of the technician at trial, had firsthand knowledge of the procedures and information the technician used to analyze the DNA samples. Another is whether Black's testimony could be considered expert testimony.

Deputy Attorney General J.T. Whitehead argued that Black had firsthand knowledge in the case and she was qualified to testify on behalf the technician. Pendergrass' attorney, Jeffrey Kimmell, argued Black could only testify about the technician's character and how tests are typically performed, but not about the DNA test conducted for Pendergrass.

Justice Theodore Boehm questioned Kimmell as to why the technician wasn't subpoenaed to testify, and Kimmell answered that it wasn't the defendant's burden to subpoena witnesses to testify against him.

Chief Justice Randall T. Shepard said expert testimony is often admitted, citing accident reconstruction and blood-testing procedures. He asked Kimmell whether in addition to the expert witness testifying about an accident based on data collected at the scene, if the person who measured the skid marks on the road also had to be in court.

Also coming up during arguments was whether the test results were considered a business record, if the test could be considered ex parte, and if the tests were testimonial or non-testimonial.

The arguments can be found online on the Supreme Court's Web site.

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