DNA analyst's refusal to answer an activity level question did not violate the defendant's right to confrontation

Abstract Evaluative activity level guidance cautions DNA analysts not to respond to courtroom questions asking “how” and “when” DNA was deposited. However, criminal defendants have the right to confront and cross‐examine witnesses against them. Al‐Atiyyat v. State is the first U.S. case to address whether a DNA analyst's refusal to answer an activity level question violates a defendant's Sixth Amendment right to confrontation. Under the circumstances described, the court ruled that it does not. This case report examines the Al‐Atiyyat decision and provides a detailed description of both the trial and appellate courts' Sixth Amendment analysis, including their collective frustration with the analyst's refusal to respond to defense counsel's activity level question. That frustration is symptomatic of the tension between current scientific guidance on activity level testimony and U.S. legal standards that control such testimony—whether evaluative or informal. This case report compares existing activity level guidance with relevant case law that governs the scope of a DNA analyst's testimony. It concludes that a gap exists between current guidance and U.S. law, which considers DNA analysts both qualified to offer opinions on activity level questions and legally obligated to respond to defense questions on cross‐examination. The parties should litigate anticipated activity level issues before trial, so the court can define the proper scope of anticipated questions and testimony. The U.S. forensic DNA community should publish substantive guidance for analysts faced with activity level questions first raised during trial that considers both scientific and relevant legal principles.