A defendant’s Sixth Amendment confrontation rights are not violated by the admission of DNA test results through the testimony of an expert who did not personally perform the tests. Appellant was convicted of child molest. At trial, a senior criminalist testified that a fellow senior criminalist had authored a report concluding on the basis of DNA analysis that sperm found on the child’s genitals matched appellant’s, and sperm found on her underwear could not be excluded as having DNA matching appellant’s. The testifying criminalist also said that the report had been made in the normal course of business at or near the time the testing was completed, reports are reviewed for accuracy, and that after he looked at the information in the report, he arrived at the same conclusion. The trial court granted a new trial on the grounds that the record wss inadmissible as a business record and because it violated appellant’s Sixth Amendment confrontation clause rights. The appellate court found that the report was admissible as it qualified as a public records exception to the hearsay rule and that it did not implicate appellant’s Sixth Amendment rights because it was not testimonial. Citing People v. Geier (2007) 41 Cal.4th 555, the court found that a statement is testimonial if (1) it is made to a law enforcement officer or by or to a law enforcement agent and (2) describes a past fact related to criminal activity for (3) possible use at a later trial. Conversely, statement that does not meet all three criteria is not testimonial. Here, when the analyzing criminalist made the observations recorded in the report, she was not acting as a witness or testifying. (Ed. note: The issue as to a defendant’s Sixth Amendment rights in this context is presently pending in the California Supreme Court in People v. Rutterschmidt, S176213; People v. Gutierrez, S17662220; People v. Dungo, S176886, and People v. Lopez, S177046. [“How does the decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___, 129 S.Ct. 2527, 174 L.Ed.2d 314, affect this court’s decision in People v. Geier (2007) 41 Cal.4th 555?”].)