Aaron Tang .

Posted Mon, December 5th, 2011 8:50 am

The Confrontation Clause and Williams v. Illinois

This week’s Community discussion concerns the Court’s Confrontation Clause jurisprudence, which has been one of the more active and heated areas of case law in recent years.  Much of the debate stems from the Court’s decision in Crawford v. Washington in 2004, which overruled the prior approach to Confrontation Clause objections adopted in Ohio v. Roberts in 1980.  In Roberts, the Court had held that an out-of-court statement could be admitted (consistent with the Confrontation Clause) even if the declarant was unavailable so long as the statement bore “adequate indicia of reliability.”

In an opinion written by Justice Scalia, Crawford shifted the focus of the Clause from judging the out-of-court statement for indicia of reliability to asking whether the statement was “testimonial” in nature, in which case the declarant must be subject to cross-examination.  But the Court never precisely defined what makes a statement “testimonial,” resulting in a a great deal of subsequent litigation – the most recent case of which is Williams v. Illinois, set for oral argument in the Court on Tuesday 12/6.  We look forward to hearing your views on the Court’s handling of the Clause, Williams v. Illinois, and related issues per the topics posed below.

SPECIAL NOTE: Professor Nesson’s evidence class has obtained permission to post anonymously in this discussion as part of their final.


  • Aaron Tang – 0 Promoted Comments

    How have the Court’s recent Confrontation Clause decisions affected law school evidence classes? Have you used any of the Court’s recent Confrontation Clause decisions – Melendez-Diaz v. Massachusetts, Bullcoming v. New Mexico, Michigan v. Bryant, and now Williams v. Illinois – as a teaching tool to illuminate the Court’s Confrontation Clause jurisprudence? If so, how did you use the cases: did you read them, debate them in class, listen to oral argument? As a general matter, do you think the use of timely cases in the classroom is helpful?

    • Joelle Moreno – 1 Promoted Comment

      “There must be some way out of here,” said the joker to the thief. “There’s too much confusion, I can’t get no relief.”

      This is what it feels like to teach the Supreme Court’s current Confrontation Clause jurisprudence and the post-Crawford delineation between “testimonial statements” — which raise confrontation concerns — and all other hearsay statements. In his majority opinion in Crawford in 2004, Justice Scalia opted to leave the definition of testimonial statements for “another day.” Since that day has not yet arrived, students demand and deserve a more helpful approach. It is easy to teach them that, after Crawford, testimonial statements are inadmissible absent confrontation. But given the range of hearsay statements made by victims and witnesses during the course of a criminal investigation, students invariably find it difficult to understand how judges should apply any of the Court’s possible definitions of “testimonial statement” which include: (1) the broadest of the three Crawford definitions (statements “made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial”); (2) the narrower Davis definition (statements where “the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions”); or (3) the narrowest Bryant definition (statements procured for the “primary purpose of creating an out-of-court substitute for trial testimony”).

      Those of us who hoped that Bryant would bring clarity to the constitutional standard have been disappointed. The Crawford Court tasked state and federal judges with the unenviable job of assessing an objective crime victim’s or witness’s reasonable beliefs regarding the possible primary purpose of the making and taking of mid-investigation statements. The Bryant Court has now added the confusing new requirement that judges use “a combined inquiry that accounts for both [the intent of] the declarant and the interrogator.” The Bryant Court has also muddied the Davis distinction between testimonial statements and statements that are non-testimonial because the primary purpose of interrogation was to help the police resolve an ongoing emergency. Bryant, which involved police interrogation of a bleeding gunshot victim before the suspect was apprehended, is illustrative of the complexities of determining the extent and duration of an ongoing emergency. The Bryant Court provides little clarity in a decision that ricochets among a range of possible factors including: (1) the nature of the dispute; (2) the scope of the potential harm to the victim; (3) the threat to additional identifiable victims; (4) the existence of a more generalized threat to the public; (5) the suspect’s choice of weapon; (6) whether the suspect remained at large; (7) the declarant’s medical condition if it may have affected the declarant’s ability to form a primary purpose; and (8) whether the informality of the interrogation evinces a primary purpose of resolving an ongoing emergency and/or failed to alert the reasonable declarant to the possible prosecutorial use of his statement.

      By the time evidence students have finished reading and discussing the post-Crawford cases, they are convinced that the Sixth Amendment protects a defendant’s vitally important right to cross-examine prosecution witnesses. Although they also learn that Crawford has influenced almost 10,000 state and federal court confrontation decisions, students are equally convinced that judges cannot accurately or consistently apply the current standard — especially in cases where crime victims, witnesses, and police officers have multiple, shifting, or conflicting goals. Evidence teachers can do little to alleviate students’ legitimate concerns; but they can help channel this constructive critique into a thoughtful analysis of many of the underlying issues. This discussion might begin with specific questions, such as asking the class to assess the costs and benefits of the Court’s increasing attention to the formality of the testimonial statement. However, a genuinely productive discussion would also integrate more global concerns, such as: (1) assessing the Court’s recent emphasis on a textualist, originalist, and historical approach to confrontation; (2) evaluating the practice concerns raised by the Melendez-Diaz and Bullcoming dissenters; and (3) contrasting the Court’s narrow focus on the purpose and circumstances of the making of the statement before trial (which students should recognize from the hearsay exceptions) with a broader focus on the admission and use of these statements at trial as a surrogate for live witness testimony (which students should recognize from Bruton and other Sixth Amendment contexts).

      • Richard Friedman – 4 Promoted Comments

        I certainly agree with Joelle that Bryant introduced unnecessary confusion. I’ve been very critical of the decision — you can see my posts on the Confrontation Blog, http://www.confrontationright.blogspot.com (I also have a series of posts on Williams, and will add to that, including commentary on the state-side briefs.) But the problem isn’t with the testimonial approach itself, which I think simply expresses the fundamental meaning of the Confrontation Clause; I’ll have more on that as a commentator on Wednesday’s topic.

        As to teaching this stuff: It’s not a bad thing for students to see a doctrine in flux. If they want things to be simple and clear, I think the answer is, “Well, it would be nice if that were always so. Maybe it will become so eventually in this area — remember it’s still less than a decade since the slate was wiped clean in this area — but in the meantime just bear in mind that sometimes, particularly when law changes and is in deep contention, it can remain quite confusing for some time. As lawyers, you have to learn to deal with this situation as best you can, because otherwise you’re not prepared to deal with reality.”

        More broadly, I think Evidence courses have been doing hearsay and confrontation in an unfortunate way. The tendency is to spend a few weeks on hearsay and then, almost as an afterthought, say, oh, there’s this thing called the Confrontation Clause, and in some cases it requires the exclusion of statements that modern hearsay law would not oppose. I think the confrontation right, and Crawford’s transformation of it, should be introduced much earlier. Indeed, in the next edition of my own book (The Elements of Evidence), the whole unit will be organized much more around confrontation principles. I think historically this is valid — the confrontation right developed before the rule against hearsay — and it should leave students asking a very important question: After the right of a party to cross-examine adverse witnesses — that is, those who make a testimonial statement against the party — has been protected, what further purpose remains to be served by the rule against hearsay? My own view — not much.

  • Aaron Tang – 0 Promoted Comments

    The Court is set to hear oral argument today in its latest Confrontation Clause case, Williams v. Illinois. Please discuss how you think the Court should decide the case (as opposed to how it will decide the case).

    • Albert Locher – 3 Promoted Comments

      In Williams v. Illinois, the Court focuses on the reach of the Confrontation Clause in the field of forensic science. A DNA analyst, Lambatos, matched Williams’ DNA to a rape, basing her conclusion in part on the work of other DNA analysts who processed the rape kit sample; those analysts did not testify. The prosecution contends the opinion of Lambatos is evidence in its own right, and her testimony is sufficient. Williams and his amici say this violated the Confrontation Clause, asserting it is not enough to confront the expert whose opinion linked the defendant to the crime; we must have “the analyst” whose underlying work was relied on by Lambatos.

      The defense argument seems simple, but where does pulling this thread lead us? In many types of forensic analysis (DNA being one), there are often several underlying “analysts” in an assembly-line process. Here, Lambatos directly relied on the work product of Analyst A, who put the prepared forensic sample into the genetic analyzer machine, which produced the electropherogram charts showing the specific DNA profile of the rapist. But A necessarily relied on the work and documentation of B, who used an automated process to amplify (chemically copy) the DNA from the rape kit swab, and tag it with florescent tags, so the genetic analyzer could read it. B necessarily relied on the work and documentation of C, who quantified the DNA from the original sample. C in turn relied on D, who submitted the original sample to chemical processes to break open the cells, freeing the DNA material for analysis. D relied on the work of E, who examined the rape exam swab itself for biological material, and made cuttings of the swab. While Lambatos only directly relied on the work product of A, if A is also required to testify, then how can one avoid the conclusion that B (on whom A relied), must also testify, and so on? There is no principled distinction that can avoid this result. Should we hear from six or more “analysts,” or should labs change their procedures and abandon the assembly line? If they do, it will reduce capacity for the technology that not only identifies the guilty, but exonerates the innocent. Likewise, if an original expert is no longer available for a forensic test that cannot be redone, such as an autopsy where the pathologist who has died, then how can a new expert review the underlying autopsy material and reach a conclusion that the Confrontation Clause will allow? In a medical setting, doctors reach opinions and treat patients based on the work of others; many scientific and technical fields operate in a comparable way. Why is the opinion of the final expert, based in part on the work of others, not sufficient in court? If it is not, the Confrontation Clause has departed from the reality of scientific practice.

    • Don Bartell – 1 Promoted Comment

      There are two systemic problems that would arise if the Court rules against Williams. The first is what I call the Brady problem. The constitution does not require the prosecution to provide inculpatory evidence. As such, under the constitution the first time a defendant may become aware of what a prosecution expert is relying upon is during trial. In many instances it would be impossible for the defense to secure the attendance of an underlying analyst that a prosecution expert is relying upon during the time management problems of trial. This would result in the following: Evidence could be prepared against a defendant. An expert could rely on that evidence. The defendant would not be able to confront or, as a practical matter compel the attendance of the person who prepared the evidence. This is hardly in keeping with the principles of the Sixth Amendment.

      The second problem is that a ruling against Williams would result in the use of surrogate witnesses. If the prosecution does not like the past history of an expert who did the actual analysis they could call a different expert to testify. This is precisely what happened in a case currently before the California Supreme Court. People v. Dungo. The prosecution did not like “baggage” associated with the coroner who did the autopsy so they called a different coroner to testify. Hopefully the court will avoid these problems with a ruling in favor of the Sixth Amendment.

    • Julie Seaman – 1 Promoted Comment

      When an expert witness bases her opinion solely – or even largely – on a testimonial report prepared by someone else, the notion that the jury can evaluate the expert’s opinion without considering the reliability (read “truth”) of the underlying report is nonsensical. Such (il)logic, relied upon by a surprisingly large number of courts in recent years, should be rejected. Which is not to say that this is how the Court will decide Williams v. Illinois.

      In its recent opinion in Bullcoming v. New Mexico, a slim majority of the Court held that a stand-in expert could not serve as a vehicle for the introduction of a blood-alcohol analysis prepared by a different forensic analyst. Williams presents a scenario hypothesized by Justice Sotomayor in her Bullcoming concurrence: “this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” Several commentators have predicted that Justice Sotomayor will join the Bullcoming dissenters to provide the fifth vote to reject the Confrontation Clause challenge in Williams.

      That seems like a pretty good bet, but it would be an unfortunate result for the integrity of the Confrontation Clause because it would permit prosecutors to use what I have called “stealth testimonial hearsay” against criminal defendants. Indeed, it’s a worse place to draw the Crawford line than Melendez-Diaz would have been because the (possibly unreliable, untested) testimonial hearsay is hidden behind the veil of the testifying expert’s testimony. If the Court, in Melendez-Diaz, had balked at excluding forensic reports absent the opportunity to cross-examine their authors, at least the evidence would have been relatively transparent to the jury. If the Court balks here, in Williams, the jury is even further removed from the source of the testimonial hearsay and the expert’s opinion is even more difficult to penetrate.

      • Richard Friedman – 4 Promoted Comments

        I think that at base Williams is a reasonably simple case, and the petitioner (Williams) should win. I think the result follows from the answers to three questions.

        (1) Was the Cellmark report testimonial? Of course it was; the state’s attorney appeared virtually to concede the point at argument today. The report was plainly prepared in contemplation of prosecutorial use. That a suspect was not yet identified does not mattered.

        (2) For purposes of Confrontation Clause analysis, was the report presented to the jury? Yes it was. The written report was not formally introduced into evidence, and the testimony about it was rather cryptic, but Lambatos, the in-court expert, clearly conveyed that Cellmark had deduced a male DNA profile from the vaginal swab and this profile was such that, when compared both by a computer and by her with Williams’ known profile, they matched.

        (3) For purposes of Confrontation Clause analysis, was the report presented for the truth of a matter that it asserted? Yes it was. The prosecution side tries, as did the Illinois appellate courts, to create a veneer that the report was used solely as a basis for the expert’s opinion, but the fact is it would not have supported her opinion unless it were true. In this context, therefore, there is no meaningful distinction between admitting the statement fort he truth and admitting it in support of an opinion.

        More complex cases could lurk behind this one as to who in the lab has to testify, but I think the fears raised by some – including Albert Locher’s posting on this thread – that it would mean that a whole string of witnesses would have to testify are way overstated. Bran Carroll replied effectively on this point at argument today; for a more detailed analysis, see my posting of yesterday on the Confrontation Blog, analyzing one of the amicus briefs in the case. http://confrontationright.blogspot.com/2011/12/thoughts-on-brief-of-new-york-da-and.html. One answer, among others, is that not everyone who gets her hands on the sample makes a testimonial statement – most do not – and not all those statements should be deemed to have been presented to the jury. But the bottom line statement as to the DNA profile sure was testimonial, and it was presented.

        • Albert Locher – 3 Promoted Comments

          With all due respect to Bran Carroll and Prof. Friedman, I think that the contention that “not everyone who gets her hands on the sample makes a testimonial statement — most do not,” betrays a fundamental misunderstanding of the analysis process. Renumbering the analysts from my discussion above, and taking them in chronological rather than reverse order (as I did above), Analyst A examines the rape exam swab itself for biological material, uses chemicals to confirm the presence of biological material sutibale for DNA testing and makes cuttings of the swab. [This may actually be done by more than one person, but we will simplify here, because it is complicated enough.] Analyst A will have documented all of this, in lab documents which become part of the lab record. Analyst B next takes the cutting sample, and subjects it to chemical processes to release the DNA; in so doing, he/she relies on the work of A — how else does B know the work done by A was properly done, and that the cutting he/she is working on is for case # 1234, the L.J. rape sample. B will also document his/her work. The material that B has thus worked with and altered, through chemical means (to release the DNA) moves on to C, who will quantify the DNA, relying again on the work and documentation from A & B. After C’s quantification work (which is again documented), D will review and rely on that work, in manipulating the sample from case # 1234 though the amplification process, where there sample has certain chemicals added to it, and then goes into a PCR machine, to amplify (copy) the DNA, D again documenting his/her work. After D has thus manipulated the sample in this process (again fully documented), it moves on to E, who will add additional chemicals (flourescent tags) which will attach to the various alleles (pieces of genetic material) so that the machine he puts it into (a genetic analyzer) can read the genetic material, and produce a chart with lines and peaks, representing the individual genes. It is this chart (an electropherogram) that Cellmark then uses to determine the rapist’s genetic profile; it is also this electropherogram chart the Lambatos received, reviewed and analyzed. Why is it that when Lambatos reviews and relies on the chart the machine produced for E, that E’s work becomes testimonial; but that when E is then called to testify, the work and documentation of D that he relied on is not?

          Each person, A thru E, and Lambatos, performed a necessary step in getting the DNA profile produced and matched to Williams. Each step along the way was thoroughly documented, in writing and in some cases through instrument entries. Demonstrating the paper documentation trail that is produced in each step, and relied on by each successive analyst, was the reason behind the lengthy appendix to the OCME amicus brief. At oral argument, much was made about how Lambatos can only know that the charts and electropherograms were from the L.J. rape sample by relying on the supposedly testimonial statements of Cellmark — but why is it that just the statement of E, who put the material into the genetic analyzer machine, is the only testimonial statement necessary? E relied on what D’s documentation told him about the sample that he/she put in the machine — if E is called to testify, how does E know that the sample (s)he put in the machine came from L.J.’s rape sample? What is the principled reason that E’s statements that Lambatos relied on are testimonial such that E must testify, but D’s statements about the identity of the sample that he amplified, and the fact that he followed proper protocol in amplifying the material, are not? And how does D, and C, and everyone back to A (who cut the sample from the original swab) know that the sample they were working on, and then passed on, came from the case # 1234 L.J. rape sample? Either it can be inferred from circumstantial evidence (as the Solicitor General argued), or everyone from A through E must testify.

  • Aaron Tang – 0 Promoted Comments

    Wednesday’s discussion topic: Do you think the Court’s current approach to the Confrontation Clause – that is, its focus on whether a particular statement is “testimonial” under Crawford, as opposed to whether it bears “adequate indicia of reliability” under Roberts – is the correct approach? Why or why not?

    • Richard Friedman – 4 Promoted Comments

      Is the testimonial approach to the Confrontation Clause the proper one? Absolutely.

      The Clause expresses a fundamental procedural principle that has governed in the common law system for half a millennium, and in other systems for even longer: Prosecution witnesses testify in front of the accused (in open court if reasonably possible), not in any other way – such as by speaking to a court official behind closed doors, as in the old civil law systems, or to a police officer in the station-house or in one’s living room.

      This is a simple, easily understood principle that is clearly reflected in the language of the Clause – the accused enjoys the right “to be confronted with the witnesses against him.” What do witnesses do? They testify – that is, make testimonial statements. In many languages, unlike English, the word for the person (witness) has the same root as the words for what the person does (testify) and what the person creates (testimony).

      A key to understanding the nature of the Confrontation Clause is to recognize that a statement might be testimonial in nature even if it is not made in court or as part of a formal adjudicative proceeding – if it is made in anticipation that it will be used in such a proceeding – but the purpose of the Clause is to ensure that testimony is not used against an accused unless it is given under proper procedures: Face to face, under oath and subject to confrontation, and in a formal procedure, at trial if reasonably possible.

      Note that the Clause does not speak of reliability, or hearsay, or exceptions. It states a categorical rule, just like the protections of the right to a jury trial and to assistance of counsel, also found in the Sixth Amendment. The hearsay rule developed well after the confrontation right, and as it expanded and took shape it tended to obscure the right. As a result, by the time the Supreme Court incorporated the right against the states in 1965, it was poorly understood, and as a result the Court ultimately devised the mushy Roberts test, based on hearsay law and principles of reliability. But Roberts articulated no principle worthy of respect, and its flaws were evident long before the Court recaptured the essence of the right in Crawford v. Washington. That decision wiped the slate clean; we should not be discouraged if it takes a good number of years and decisions until the law seems relatively stable and clear. For now, we can say that Crawford took a giant step in the right direction.

    • Charles Nesson – 4 Promoted Comments

      Neither is the right approach. Crawford brilliantly dismantled Roberts, no problem there, but then pulled its “testimonial” approach out of a dictionary. The Court would do better to consider who is the defendant’s accuser.

    • Richard Lempert – 3 Promoted Comments

      To first dispose of the most hotly contested issued, the data from Cellmark relied upon by the state’s expert to confirm Williams’ identification as a rapist is testimonial by any honest understanding of the term. It was produced at the behest of the police to specifically indicate the DNA profile of the man who raped the victim. Suppose a Cellmark analyst had taken the stand and presented the profile on which the state’s expert relied for her identification and then had refused to answer any questions on cross-examination. Surely the evidence would have been stricken, and the state’s expert would not have been allowed to state a judgment that assumed the truth of the stricken testimony. Or suppose Williams had followed the pattern of the more usual DNA data base identification in which DNA recovered from a rape victim is shown to match DNA already in a criminal records data base. Would the fact that the name was attached to the DNA in the data base and not to the “unknown rapist’s” DNA make the Cellmark analyst’s report less testimonial and necessitate calling whoever did the DNA analysis that populated the data base? No doubt the Illinois court would have used the analysis it used in Williams to argue that only the Cellmark analyst’s judgment of identity was testimonial, but what is and is not testimonial shouldn’t flip flop on the basis of who is available to testify. Nor will it do to say that the state’s expert was not a conduit for hearsay because she said little about the data before she was cross-examined. Her explicit reliance on it is enough, for if she did not believe that the report’s description of the rapist’s DNA profile were true, she could not have identified the defendant as the rapist with the certainty she conveyed. It is only because the analyst took the report’s assertions as true that she could testify as she did, and in so testifying she was affirming the truth not only of her own results and judgment but also of the results and judgment of the analyst who produced the report for Cellmark. The analogous situation, which has not fooled the courts, is one in which a state argues that a police officer’s testimony that he arrested the defendant following a conversation with a trusted informant does not run afoul of the confrontation clause because evidence of what the informant said was never conveyed.
      The problem with correctly analyzing the testimonial nature of the Cellmark report as incorporated into the conclusion of the state’s analyst is not only that it overturns the conviction of a guilty man, but it does so in a situation where confrontation could serve no purpose. This, of course, is a conclusion prosecutors have pushed in the Melendez-Diaz line of cases, and the Supreme Court has correctly rejecting the argument. In this line of cases the state’s attitude and underlying argument has been that the scientific evidence it offers is so reliable that no matter what the quality of the cross-examination, a reasonable fact finder would be compelled to accept the scientific evidence (e.g. identification of a drug) as true. But empirically the argument fails given what we know about errors made in the processing of scientific evidence and an unfortunate history of perjury by some scientific experts. Moreover, to fully understand and correctly weigh the import of the scientific evidence expert instruction is often needed. Only if an expert is in court and subject examination will it be possible to ensure that the fact finder understands the strengths and limitations of the methods used and the precise meaning of the results presented.
      Williams presents a different situation. Here there is no possibility of what is usually the most threatening laboratory error, inadvertent (or intentional) sample contamination or misreporting. The DNA samples in Williams were collected at different times and analyzed in different laboratories. The chance that other collection or laboratory errors threatened Williams with a possibly unjust conviction is also vanishingly small because no plausible errors by Cellmark would have generated a profile that precisely matched William’s profile on the alleles tested. To the extent that cross-examination might have value in instructing the jury on the interpretation of the evidence, the state’s expert analyst could provide pretty much everything the Cellmark analyst could including explaining the science and logic of DNA analysis, how the probabilities of non-involvement were arrived at, and how these probabilities might differ under special conditions such as if the suspect had a genetic twin.
      My solution to this dilemma is to reinsert a little bit of Roberts’ concern for reliability into Confrontation Clause jurisprudence and to treat cases like this as cases in which any deficiencies in confrontation are harmless error or better still not error because they are indisputably harmless. The move is not trivial in its effects, and would help to preserve Crawford and Melendez-Diaz from erosion by accommodating an important reality of scientific police work, data base matching. An indisputably harmless test would mean that in all cases in which a suspect was identified by comparison with an independently established data base profile, only the analyst who did the matching analysis would have to testify and the data base information could be explicitly referenced rather than danced around as in the Illinois trial court. Nor would a door to admissibility swing open as happened in Roberts where the Court from the start made the counterfactual assumption that all hearsay admissible under an established exception was reliable and, in addition, allowed claims of reliability to be made on an ad hoc basis. A failure of confrontation would be declared harmless not by reference to the likely truth or accuracy of the out-of-court statement, but because the unlikely conjunction of two statements would mean that everything that might undermine a conclusion based on the conjunction could be learned from questioning the producer of only one of the linked statements. A limited and strict rule that there is no Confrontation Clause violation when the state does not call the maker of a data base profile that matches an independently constructed profile can keep this hard case from making bad law.

      • Roger Park – 1 Promoted Comment

        Williams will have impact beyond its forensic science context. The decision will be cited in other cases involving prosecution experts, including police experts on subjects such as gangs and drug dealers.

        Let’s hope that if the state wins in Williams, lower courts dealing with other police experts will distinguish Williams on practical grounds. I’d rather have courts consider matters such as the burden on the prosecution and the need for cross-examination than to base decisions solely on analysis of concepts such as whether evidence is testimonial, formal and offered for its truth. Richard Lempert’s posting makes a persuasive argument that in Williams itself, error is unlikely despite the prosecution’s reliance on statements of other experts, and if the state wins Williams could be distinguished from other expert cases on those grounds.

        We may end up being nostalgic for Ohio v. Roberts. It wasn’t a bad idea to focus on considerations such as the availability of witnesses, the need for cross-examination, and the trustworthiness of the evidence. The mistake was in giving immunity to “firmly rooted” hearsay exceptions and being too permissive in assessing trustworthiness.

        The Confrontation Clause doesn’t lend itself to literal interpretation. Taken literally, the provision that the accused shall enjoy the right “to be confronted with the witnesses against him” would fit most comfortably a rule that the accused merely had the right to confront witnesses who appeared in court. That rule would be so narrow that it wouldn’t even cover Raleigh’s case, so a broader prohibition is appropriate. One choice is a Roberts-like approach taking practical considerations into account. Another is the Crawford approach of identifying out-of-court statements that are analogous to in-court testimony and giving primacy to original intent. A purely historical approach isn’t a better idea here than it is on other areas of constitutional law – in addition to more serious problems, it would place an impossible burden on trial judges if it were taken seriously. The analogy to in-court testimony also creates the anomaly of making the recording of a statement a strike against its admissibility (because it increases formality).

  • Albert Locher – 3 Promoted Comments

    I agree with Prof. Friedman that we will be many years in determing what “testimonial” means. That is part of the problem; it is probably inherent in fleshing out any constitutional doctrine. The oral argument in Williams illustrates the problem.

    The defense (Brian Carrol for petitioner) argued that not all analysts/technicians who processed the sample will be required to testify. Justice Scalia agreed (p. 14, argument transcript), saying that the it is up to the prosecutor whether to bring in 12 or just one, “if he thinks the jury will be sufficiently persuaded by bringing in just one, he can bring in just one, right?”

    That is essentially what the prosecutor did in Williams, though. Conceptually, there is really no difference between bringing in the one analyst, Lambatos, from the Illinois State Police Crime Lab, when she relies on the other analysts/technicians from Cellmark; than it would be if the other analysts/technicians she relied on were ISP personnel, who worked down the hall, or on another floor of the same building. She still would not have personally done the work that the others did, she would not have observed it, and she would be relying on what they did. It may be a weaker case to only bring in Lambatos; or Lambatos plus one analyst from Cellmark (foregoing calling the other two, or three, or eight from Cellmark who may have processed the sample at different steps). But Justice Scalia seemed to be saying that the prosecution can make that choice, at the risk that the jury won’t find it convincing. Where is the reasoned principle, as a matter of confrontation analysis, that draws the distinction between “this is a necessary person who must be called to testify,” and “this is a person the prosecution can skip; the confrontation clause will be satisfied, although the prosecution risks that the jury won’t find it convincing.”

    In this regard, it is worth noting the context in which the Williams facts arise. Williams is a stranger rape. The DNA matches to Williams with the odds of one in 8.7 quadrillion. After the DNA match, the victim L.J. picked Williams out of a lineup. The defense response to this evidence was to waive jury, and submit to a court/bench trial — what in the business is often called a “slow plea.” The defendant doesn’t have to admit he did it, and gets to make his record, but neither does the defense have any serious expectation that of an acquittal. In this setting, the prosecution may be more willing to put on a case with fewer of the bells and whistles than would be used for a jury trial. A weaker case, by jury trial standards, but that is the risk the prosecution bears.

    In short, the problem with the “testimonial” standard, at least at this writing, and in the forensic science setting, is knowing what is required as a matter of confontation right, and what the prosecution can omit, in the words of Justice Scalia, “bring[ing] in just one [witness]“. Both the petitioner, the defense amici, and Justice Scalia seem anxious to insist that the rule will not lead to an “all analysts must testify” result. But nobody has articulated a principled analysis for how we get there without simply adopting the longstanding rule in expert evidence law that the expert’s opinion is evidence in its own right.

    • Paul Vinegrad – 1 Promoted Comment

      The critical issue in Williams is not whether any out-of-court statement from a Cellmark employee was testimonial.

      The critical issue in Williams is not whether any statement from a Cellmark employee was introduced to prove the truth of the matter asserted.

      The dispositive question that the Court must answer in Williams is as follows: Did the prosecution’s case rest upon an out-of-court statement from a Cellmark employee to prove that the DNA profile — that the expert (Lambatos) compared to the defendant’s DNA profile — came from semen that was found in the victim’s vagina?

      The answer to this question is no. That is the end of the inquiry. That is as far as the Court need go in order to resolve the alleged confrontation clause issue posed by this case.

      As I stated on Prof. Friedman’s blog on July 9, 2011 (and as concisely explained by Deputy Solicitor General Dreeben at oral argument), there is no confrontation clause issue in Williams, because the prosecution, through circumstantial evidence (which did not include any out-of-court statement), established that the Cellmark-generated DNA profile (i.e., the electropherogram or allele chart) that Lambatos testified “matched” the defendant’s DNA profile came from semen found in the victim’s vagina.

      This circumstantial evidence consisted of the fact that the victim’s vaginal swab was sent to Cellmark (with a particular case number) and was thereafter received back from Cellmark (with the same case number) together with the the DNA profile — the electropherogram or allele chart — that Lambatos testified “matched” the defendant’s DNA profile.

      Accordingly, any reference by Lambatos, on direct examination, to an out-of-court statement by some unknown Cellmark employee that the DNA profile came from semen obtained from the victim was simply duplicative of what the prosecution had independently established through circumstantial evidence. Thus, the introduction of any such statement was harmless error, even if the judge, sitting as trier of fact, ignored Illinois evidence law and considered such statement for its truth.

      While it is true (as noted by several justices at oral argument, especially Justice Kennedy) that the Cellmark-generated DNA profile that served as the basis for Lambatos’s “match” opinion might be completely inaccurate or utterly unreliable for any number of reasons, that is no longer the concern of the confrontation clause, as Crawford repudiated the reliability-approach to confrontation clause analysis set forth in Roberts. Perhaps Justice Kennedy’s emphasizing this point was his way of pointing out that the Court went down the wrong path when it followed Justice Scalia’s lead in adopting the testimonial formulation? The four dissenters in Melendez-Diaz & Bullcoming certainly reject any such testimonial formulation, at least with respect to declarant’s who did not witness any aspect of the defendant’s alleged criminal behavior, i.e., in Justice Kennedy’s words non-”conventional” witnesses.

      As I previously noted on Prof. Friedman’s blog, the reliability or unreliability of the Cellmark-generated DNA profile is certainly subject to any restraints imposed by the forum’s evidence law or, if the government produced the evidence and its introduction denied the defendant a “fair” trial, the due process clause, of the 5th or 14th Amendments. But, after Crawford, the confrontation clause no longer serves as a shield from even patently unreliable testimonial hearsay.

  • Aaron Tang – 0 Promoted Comments

    Thursday’s topic: Please discuss Williams v. Illinois in light of how oral argument proceeded on Tuesday (you can view the oral argument transcript here). What stood out to you from the argument? How do you think the Court is likely to rule on the case now?

    • Myrna Raeder – 1 Promoted Comment

      Predicting the outcome in Williams v. Illinois appeared a slam dunk in favor of the defendant until the very end of the oral argument when the Deputy Solicitor General appearing as amicus curiae for the Respondent managed to find an issue that gave some of the Justices pause. Williams is the third in what could be a never ending series of cases addressing the contours of the Confrontation Clause when forensic science evidence is admitted or relied upon at trial without testimony from one or more of the analysts who conducted the underlying tests. Forensic issues currently defy a one size fits all solution, and because the testimonial approach has disrupted business as usual in large numbers of cases involving forensic evidence, Williams is a high stakes case.

      It was one of those arguments where the lawyers barely got a chance to say anything, because the Justices addressed each other, used questions to articulate their own views, or provided answers to the lawyers for questions previously asked by other Justices. Justice Kennedy was the big surprise given his vigorous dissents in Melendez-Diaz and Bullcoming that seemed to predict the sky would fall if forensic scientists and other experts were required to testify. Instead, here for most of the argument he sounded like a champion for the defense, a position he shared with Justice Scalia, who kept feeding answers to the Petitioner’s attorney. The best remark of the argument went to Justice Kennedy who said “The key actor in the play, the Hamlet in the play, is the person who did the test at Cellmark. And she or he is not here.” He asked how the case was any different from Bullcoming and Melendez-Diaz, suggesting it was even weaker than the showing in Bullcoming.
      Justice Breyer engaged in a lengthy discourse about Wigmore’s views of hearsay and expert testimony, suggesting a rebuttable exception for expert testimony could be created in the Confrontation Clause realm, only to be reminded by Justice Scalia that Wigmore’s approach to Confrontation had been rejected by the Court. Justice Breyer voiced concern that continuing down the current path could lead prosecutors to rely on less reliable evidence from eyewitnesses rather than on forensic evidence. He mentioned the possibility of needing 10 witnesses, which evoked one of Justice Ginsburg’s few remarks saying she thought only one witness from Cellmark was involved in the current case. Justice Alito then commented that ten was not far fetched, citing an amicus brief from the Manhattan D.A.’s office.

      The issue that consumed the most time was whether the DNA analysis by Cellmark labs that identified the semen found in the victim as originating from Mr. Williams was introduced for truth of the matter asserted, since the expert relied on it to make the comparison that linked William’s as the perpetrator. If used for its truth, the Confrontation Clause was implicated; if not, there was no Confrontation Clause violation. Several justices including Justices Sotomayor and Kennedy appeared to believe that without the report there was no basis for the expert to reach a conclusion linking the defendant to the sexual assault. In other words, the testifying expert was simply a conduit for the hearsay in the report even though the report was not admitted and the information in it was ostensibly not coming in under Illinois law for truth of the matter asserted.

      The one wildcard issue is how Illinois evidence law that does not permit the reports to be used for their truth, but only as a basis for the expert’s opinion, plays into the decision. If the defendant loses, it will be because of the Deputy Solicitor General who focused on Illinois law that provides the expert’s testimony could not prove what Cellmark did. When Justice Kennedy asked why wasn’t there insufficient evidence of guilt in this case under that analysis, the response was that the circumstantial evidence of chain of custody regarding the shipping manifest resulted in this being a very weak case, but not a Confrontation Clause violation. Chief Justice Roberts suggested that a separate witness could testify to the quality of Cellmark as an accredited lab to make the case stronger, which in fact happened. It is fairly clear from the argument that the Chief Justice, and Justices Alito and Breyer will find no Confrontation Clause violation in Williams. Justice Thomas did not ask questions, but is likely to find no violation. The question of how much deference should be given to Illinois law appeared to engage both Justices Kennedy and Sotomayor, so their votes could still go either way. Justice Kagan’s vote was not easily predicted from her questions. As a result, we will have to wait to see how the case will be decided, or for that matter how much value the decision will have if the state wins, since such a decision is likely to rest on a counter-intuitive quirk of Illinois law.

      • Patrick Cassidy – 1 Promoted Comment

        I agree completely with your analysis. What I don’t understand is how it can be contended that we should presume the trial court didn’t consider Cellmark’s assertion for its truth. It is true that Illinois law presumes that a trial court in a bench trial only considers proper evidence. But that presumption can be rebutted where the record indicates the evidence was considered by the court. See People v. Naylor, 229 Ill. 2d 584, 605 (2008).

        More importantly, the presumption that a trial court considers proper evidence actually cuts the other way in this case. As pointed out in the oral argument, the expert’s opinion was irrelevant unless the Cellmark assertion was taken to be true. We know the trial court considered that opinion, and we can safely presume the trial court would only consider that opinion if it was relevant – after all, the rule that only relevant evidence may be considered is cemented in the mind of every judge, whereas the rule at issue here is still being fleshed out. Thus, under Illinois law, we should presume that the trial judge took the Cellmark assertion as true.

    • David Kaye – 1 Promoted Comment

      In yesterday’s oral argument in Williams v. Illinois, Justice Breyer posed the following question:

      I mean, there is no expert who isn’t relying on what his teachers told him in college, which reflect dozens of out-of-court statements given to dozens of people who wrote them up in books. So expert opinion is always built on hearsay, almost, and –- and so are business records; they are filled with hearsay. But Wigmore writes a treatise, doesn’t he, where he says exceptions have been recognized since the 17th century or earlier to cover that kind of material? So my question for you is why shouldn’t we recognize a similar, related kind of exception here?

      Counsel, with an assist from Justice Scalia, replied that a reliability-based exception to the Confrontation Clause departs from Crawford v. Washington — which unequivocally rejects reliability as the guide to the scope of the Confrontation Clause.

      But there is more to say. To begin with, no Confrontation Clause exception is required to permit expert reliance on hearsay from textbooks, journal articles, classrooms, shoptalk, and the like. Those materials describe generally applicable facts or principles rather than case-specific “adjudicative facts” accusing or linking the defendant to the crime. Moreover, like most business records, they are nontestimonial because they are not produced for the purpose of providing evidence against a potential or actual criminal defendant. Therefore, a broad reliability-based forensic-science exception is hardly necessary to allow experts in criminal cases to rely on scientific hearsay. This is not a matter of the heightened reliability of forensic science experts that Justice Breyer suggests flows from control by “the canons, by accreditation, by tests of reliability . . . .” It is implicit in Crawford’s definitions of “testimonial” statements.

      Neither is it entirely convincing to claim, as Justice Breyer seemed to, that forensic analysts in a police laboratory “are not normally interested in the results of the trial, as here they couldn’t care less; they don’t even care if it is used in the trial.” At least some analysts do care — they self-identify with the prosecution, and, like all human beings, they are subject to subtle cognitive biases. The recommendation in the National Academy of Sciences’ 2009 report on forensic science to keep forensic laboratories administratively separate from police agencies and prosecutors reflects this concern.

      Finally, Justice Breyer suggested that the exception “would have the virtue of not requiring ten people to come in and testify.” In the same vein, Justice Alito pointed out that “the New York City Chief Medical Examiner’s office [says] that their very fine crime lab [uses] at least 12 technicians in the analysis of DNA.” These observations may require the Court to refine Crawford further. Ascertaining which preliminary steps in a forensic analysis necessitate testimony from the individuals involved at that stage is difficult under Crawford’s quasi-historical approach. Crawford rests on an analogy to ex parte inquisitorial proceedings used to produce accusations of criminality. On the one hand, the strongest reading of Crawford is that all investigative personnel who acquire information about a crime are accusers and all their statements that supply part of the case against the accused are testimonial. This reading would make all documentation or reporting of the preliminary steps in forensic-science tests testimonial. On the other hand, if the recording or reporting of every phase of the forensic analysts’ investigative work is not ipso fact testimonial, which preliminary steps in forensic-science tests are outside the scope of the Confrontation Clause? Specifically, can records establish the chain of custody both before and during the forensic tests? Is a technician who extracts DNA from a bloodstain and records this action making an accusation? Are the records of a laboratory worker who places the extracted DNA in a thermocycler and amplifies it for subsequent analysis an accusation? Is the analyst who uses the amplified DNA to generate the electropherograms the accuser, or is only the one who interprets them and delivers the ultimately incriminating scientific judgment?

      In oral argument, the state took the formalistic position that Illinois law (like Federal Rule of Evidence 703) necessarily fills the void produced by its failure to call a witness to the earlier phases of the testing because the electropherogram technically is not introduced for its truth, but only to show the basis for the interpreting expert’s judgment. But the issue would be the same if the state introduced the electropherogram itself under the business-records exception to the hearsay rule or pursuant to a special statute making laboratory reports admissible. The question still remains: Do the peaks in the elctropherograms accurately reflect the locations of the STRs in the DNA from the original samples. The answer depends on whether the analyst properly performed the PCR amplification and the subsequent capillary electrophoresis. Realistically, the state’s total reliance on a surrogate expert limited Williams’ opportunity to confront a witness produced by the state who could be impeached as to the electropherogram itself. Consequently, even if the notion of preparatory steps that fall short of an accusatory, testimonial statement is valid, there is reason to doubt that it stretches this far.

    • Richard Lempert – 3 Promoted Comments

      Justice Sotomayor posed the most interesting question in the Williams oral argument. She asked:
      “[I]f no expert from either lab came in, if an expert had the Cellmark information and the Illinois State police information, not offered for the truth of the matter, and came in and said I match this and I match that, and it’s the defendant — could that have been done?”

      Her question dissipates confusion caused by the fact that the state’s expert had herself typed the defendant’s DNA and gets to the heart of the matter: if an expert relies on information provided by others, as permitted by FRE 703, does failing to call those who provided the information relied upon violate the Confrontation Clause. In a system where a dozen people may play a role in the analysis of forensic information the answer must be “not necessarily” if we are to have a workable forensic science system. Realizing this, William’s counsel conceded the point in his oral argument. Thus, Williams did not claim that that the Confrontation Clause required the phlebotomist who drew Williams’ blood to testify even though if he had confused Williams’ sample with other blood he had drawn, Williams would have been falsely implicated. He similarly did not object to the absence of the lab techs who used the PCR process to derive DNA sufficient to allow for further analysis.

      Is there a difference when we reach the penultimate stage of the analysis, the assertion that in each sample the allele distribution took a particular form such that an expert viewing the data could assert that there was virtually no chance that the rapist’s DNA came from someone other than Williams? By itself the last stage is no different from the preceding stages. Indeed, the ultimate specification of the rapist’s genetic profile could hardly be less testimonial because it is the output of a machine and so is not even hearsay. But a simple statement of a genetic profile is not what is being asserted. The assertion is that a multi-step process was correctly performed, and it yielded a certain genetic profile. The expert who compares the two profiles must believe this is true of both the crime scene and data base analysis to justify her strong identification testimony. Even if no report of a step or action that justified the final conclusion was testimonial in nature, the final report of the genetic distribution is classic testimony. It was produced at the behest of the police/prosecution; the person providing the report knew it would be used to establish guilt in a legal proceeding, and it is designed to point a finger at a specific, if temporarily unknown, individual. The rapists DNA profile may derive from scientific rather than perceptual processes, but analytically it is like the detailed description a person might give of an assailant. In order to prosecute the identifying information must be linked with a person matching that description but the need for a link doesn’t make the description less testimonial. Neither the prosecutor’s decision refrain from introducing the report into evidence nor the fact that the report’s assertions form the basis for an experts conclusion should affect the analysis. Although FRE 703 says that an expert may rely on evidence that is inadmissible if it is of a type that experts in a field typically rely on, it does not relieve the state of the burden of introducing evidence just because an expert relies on it. Nor does FRE 703 allow an expert to implicitly assert as true what she has learned from another when a direct assertion of what the other said would violate the Confrontation Clause.

  • Paul Vinegrad – 1 Promoted Comment

    With respect to Mr. Lempert’s “implied” assertion theory:

    True, by relying upon the Cellmark-generated DNA profile, Lambatos was “impliedly” asserting that she “believed” Cellmark correctly performed its work. But Lambaotos’s belief is not a “statement” (or assertion of fact), as hearsay is defined.

    If Lambatos had testified on direct examination that “Cellmark told me that they correctly performed all of the steps needed to generate the DNA profile,” certainly that statement (that direct assertion of fact) would have violated the defendant’s confrontation right, if introduced for its truth. But that did not occur.

    Moreover, if the Court were to accept this “implied” assertion theory it would lead to the absurd result that every single “belief” underlying an expert’s opinion — of which there can be many — would be transformed into hearsay (i.e., a direct assertion of fact) subject to confrontation clause scrutiny. Respectfully, I don’t believe this novel theory will fly with even a single justice.

    Assuming the validity of this “implied” assertion theory, it would certainly be remedied by a limiting instruction to the jury not to consider anything that the expert “impliedly” appears to “believe” for its truth, but only to help evaluate the weight to be given to the expert’s opinion.

    Unlike Bruton, where a “powerfully incriminating” direct assertion of fact from a nontestifying accomplice was introduced by the prosecution, there is no reason to believe jurors would not follow an instruction not to accept as true an expert’s “implied” assertions of “beliefs.”

    Justice Sotomayor’s question is an indication that she does not perceive a confrontation clause violation in this case.

    With respect to Prof. Raeder’s comments:

    I was also initially taken back by Justice Kennedy’s apparent about face from his powerful dissenting opinions in Melendez-Diaz & Bullcoming. However, upon further reflection, I don’t believe Justice Kennedy or, for that matter, Chief Justice Roberts, Justice Alito or Justice Breyer, are going to retract or tone down their strongly-worded criticism of the “testimonial” approach, at least with respect to forensic evidence cases involving experts who did not “witness” any aspect of the defendant’s alleged criminal conduct.

    In fact, in a very nuanced way, I believe Justice Kennedy’s questions were intended to point out how absurd he believes the “testimonial” formulation is when it comes to cases involving forensic experts.

    I do believe that Justice Kennedy, and other members of the court are concerned with the following question — a question that has been lurking in the background ever since Crawford was decided seven years ago:

    What federal constitutional protection exists, if any, prohibiting the government from introducing patently unreliable, accusatory, nontestimonial hearsay against a criminal defendant?

    Under Roberts, in theory, this protection was found in the confrontation clause. But it no longer exists under the testimonial formulation penned by Justice Scalia in Crawford.

    It is doubtful that the due process clause affords any protection in the form of pre-trial exclusion, as that provision only applies where a defendant has suffered an actual deprivation of liberty, i.e., after a defendant has been convicted and sentenced. And, any such protection — a prohibition on any “State” actor from depriving a defendant of liberty without due process of law — is only applicable to situations where the government was involved in generating the allegedly unreliable evidence. It does not have any applicability to accusatory, unreliable, nontestimonial statements made to private parties.

    The Court’s upcoming opinion in Perry v. New Hampshire might provide some answers to the question of the constitutional admissibility of unreliable, nontestimonial hearsay?

    The more one considers the seemingly never ending constitutional pandora’s box that Crawford opened, the more one begins to believe that Justice Rehnquist was right in his dissenting opinion.

  • Richard Lempert – 3 Promoted Comments

    You are correct that the Federal Rules do not on their face consider implied assertions as hearsay. The exclusion was intended to remove doubt over the treatment of non-assertive conduct as hearsay; that is actions (including statements)where there is no intent to assert. When there is an intent to assert the proposition implied the situation changes. Cases go both ways, but the better analysis treats such statement as hearsay. (You can find a discussion of assertions implied from intended assertions on p. 546 of A Modern Approach to Evidence (4th edition).) Thus the statement “I arrested X after Y told me who robbed him” would run afoul of the Confrontation Clause and should be inadmissible hearsay even though a statement by Y identifying X as the robber is only implied. There can be close and difficult to analyze situations. In Williams there was enough discussion about the quality of Cellmark’s work, how the evidence was handled, etc. that I believe the expert witness’s statement can fairly be read as adopting and reasserting in court the Cellmark report’s conclusion about the rapist’s genetic profile. Otherwise, as the state tried to do in this case, the door is opened to gaming the hearsay rule and Confrontation Clause. The normal way of proceeding to explain things fully to the jury would be: “Cellmark found that the rapist’s profile was “1-13.” I analyzed Mr. William’s blood and found that his DNA matched each allele, and the odds are only 1 in a quadrillion that another person has that profile.” Why should the situation change if instead the state’s expert begins, “I looked at the Cellmark report. Based on my analysis of Mr. Williams DNA and what I saw in the report I conclude that…” Your quarrel should be with Melendez-Diaz and Bulcoming, not with an analysis which treats the implicit reference to the Cellmark report as an introduction of hearsay. (I might also add that as is oft stated, the Confrontation Clause and hearsay rule are not coextensive. A state could abolish its hearsay rule but Confrontation Clause restrictions would still remain. So even if one reads the exclusion of implied assertions from the hearsay rules so broadly as to exclude even statements of the “I arrested X because of what Y said” kind this would not resolve the Confrontation Clause issue.)
    On your other matter, I will simply note that I am not a strong supporter of the “testimonial statement” approach to Confrontation Clause analysis. I am not an originalist when it comes to Constitutional interpretation; indeed I do not believe that with respect to most issues an honest originalism is possible. I think we should strive for a Confrontation Clause jurisprudence that maximizes the protection of the innocent while minimizing our inability to convict the guilty and maintaining the appearance (and actuality) of fairness. The three goals may conflict, and balances must be struck. I think the testimonial approach to the Confrontation Clause both overprotects and underprotects with respect to these three goals. Whether we can do better is a different question. In theory Ohio v. Roberts offered a better approach, or would have but for the assumption that all hearsay admissible under traditional exceptions was reliable. In practice it’s protections of reliability and availability were rapidly subverted. The Crawford standard may prove better in attaining the goals I see as underlying the Confrontation Clause so long as traditional hearsay exceptions remain and are taken seriously. But if hearsay rules are relaxed, on the books or in practice, the Crawford standard can allow in non-testimonial statements, including anonymous rumor, that cry out for the protections of confrontation.

  • Richard Friedman – 4 Promoted Comments

    I haven’t been able to keep up with this whole thread, but I would like to make a few quick points.

    1. The most arresting part of the argument in Williams, in my view, was clearly comments by Justice Kennedy suggesting that he was willing to abide by Melendez-Diaz and Bullcoming. In dissenting in those cases, he predicted dire consequences. But one would expect that if he accepting them as given he would want to work towards applying them in a reasonable, practical, and principled way. And, though one can’t infer too much from comments at argument, his statements – especially the one comparing “supporting actors” to “the Hamlet in the play” — suggested that this is just what he is doing. I have posted more extensive thoughts on the argument on my blog, at
    http://confrontationright.blogspot.com/2011/12/williams-argument.html

    2. Paul’s circumstantial evidence theory, no matter the frequency and the conspicuous ability with which he and Michael Dreeben assert it, just doesn’t hold up. Let’s bear in mind: What Cellmark did was not just run stuff through a machine that spat out a chart. Rather, they compiled a profile, with the exercise of human judgment, and stated what that profile was. Circumstantial evidence cannot demonstrate what that profile was. Lambatos took the profile and compared it to that of the defendant, and a computer program did a match as well. If the profile generated by Cellmark had been different, it would not have supported Lambatos’s opinion. I don’t think anyone has yet responded to my point (forgive me if I’ve missed something) that the situation is exactly as if an eyewitness gave Lambatos a description of the assailant and Lambatos compared that to a description of Williams. I say “exactly as if” because in fact that is what Cellmark (though not an eyewitness) did – gave a genetic description of the assailant. Calling this circumstantial evidence simply distorts the actual situation.

    3. Victory for Williams has no impractical consequences. The whole specter of a parade of DNA witnesses in every case fails to take into account the facts that (1) most of those who work on a DNA test do not make testimonial statements that must be conveyed to the trier of fact to present the results (but somebody at the lab does, which is a point that I think Albert Locher overlooks), and (2) states that have always followed the procedures for which Williams ocntends have managed just fine.

    4. A principal virtue of Crawford is that it recognizes that the confrontation right, just like the right to counsel and the right to jury, is a basic procedural right that we adhere to as a uniform matter; we do not decide case by case whether it is worthwhile in the particular circumstances. I really do hope that the Court doesn’t edge back towards Ohio v. Roberts, as my senior colleague Rick Lempert suggests. We wold lose sight of the fundamental principle underlying the confrontation right, and (in part because most judges don’t have anywhere near the intellectual subtlety of Rick) over time the right would once again be severely impaired.

    • Richard Lempert – 3 Promoted Comments

      Rick,

      Upon further thought there are some complexities which determine the practical consequences of a decision for Wlliams. Consider two kinds of DNA data bases; one with individually identified DNA and the other with crime scene DNA. The first one is used when DNA is recovered at a crime scene and the effort is to identify who left it. The question asked is, “Does the crime scene DNA match any of the DNA samples in the data base?” This is the most common kind of data base use. A decision for Williams along the lines you propose has little consequence beyond increasing system costs somewhat – a common price of liberty. The possibility of data base error does not loom large because once a defendant has been arrested because a DNA collected at a crime scene matches DNA associated with him in the data base, he will (should) following arrest be retested to confirm that the crime scene DNA does in fact match his. The second kind of DNA data base is a data base of crime scene DNA that has not matched any individual DNA in an extant/searched data base. As new individuals are arrested and their DNA typed, the crime scene data base can be searched to see if the newly acquired DNA matches DNA left at a crime scene. This is the less common use of DNA data bases but is the use more like that of the Cellmark analysis in Williams. Williams was, however, a low consequence case if the witness must be called since the two DNA analyses were in close temporal proximity and requested by the same police department. Moreover, not only the company but the analyst who who supervised the DNA analysis was known and, one assumes, available to testify if called. This will not always be the case. A crime scene analysis may have been done decades before matching DNA has been acquired from someone arrested/convicted for another crime. The lab that did the analysis may be located in a distant state or even overseas, and the analyst who supervised the analysis may be long gone. It may even be the case that the identity of the lab that did the crime scene analysis and forwarded it to the data base is not known. In these circumstances there can be serious consequences both financial and to justice if courts hold that the Confrontation Clause makes inadmissible the testimony of someone who analyzed the suspect’s DNA and found it matched a crime scene profile unless the producer of the the crime scene profile is called. Moreover, as I point out in my original comment the chance that the crime scene DNA did not match the suspect’s DNA but that errors in collection or analysis meant that the reported results matched precisely is so minuscule that it can be safely ignored. About the only error that is even remotely possible is that samples of crime scene DNA were confused and while the defendant left DNA at a crime, it was not the scene which the analyzed DNA was associated with. Not only is this quite unlikely, it is not the kind of error that an analyst who presents the DNA analysis for Confrontation Clause purposes would be aware of.

      It is because I agree with your characterization of the testifying analyst’s use of the Cellmark DNA profile as hearsay reporting testimonial assertions that I suggest a special “not error because harmless” excuse from the requirement for confrontation is the best outcome in Williams. (I might add that since no one has suggested this resolution I do not expect the Court to arrive at it.) Otherwise I fear that Williams could lead the Court to erode in a potentially unfortunate way the meaning of testimonial and allow gaming the Confrontation Clause by clever ways of presenting evidence that relies on and implicitly conveys what is in fact a testimonial assertion by an uncalled witness.

      More generally and speaking now more as a sociologist than a lawyer, a major reason for incoherence and inconsistency in the rules of evidence is that courts like to do justice – not a bad thing unless one teaches evidence.[:-)] Because only criminals can appeal convictions, most cases heard by appellate courts and,indeed, trial courts as well involve guilty parties. Hence, judges often produce tortured interpretations of rules of evidence to facilitate what they see as substantively just outcomes at the trial level and to avoid overturning what they perceive as factually justified convictions on appeal. (We can argue about whether they should do this, but that is a legal/philosophical and not a sociological question.) I think it is this tendency that largely gutted Roberts, both by watering down the reliability standard (which was low from the start) and abandoning the requirement to bring available witnesses to court before their hearsay could be admitted. This tendency also leads courts, including the Supreme Court, to characterize errors in evidence law or even instructions as harmless, although any reasonable person can easily imagine that but for the error a verdict might have been different. Nevertheless, I often find myself applauding (albeit with only one hand) findings of harmless error because at least the court is not mucking up the rules of evidence with a tortured interpretation that may secure justice in the case appealed but will do so at the cost of making the rules of evidence less coherent, fair, workable, protective, etc. For similar reasons, I think to preserve a realistic view of what is testimonial under Crawford, the Court would be wise to carve out the kind of “not error because harmless” standard I suggest. I do not call this “harmless error” because in in the kind of situation I describe the chance of any harm to the defendant is so small that not calling the person/lab rep who did the pre-identification crime scene DNA profile should not be called error. If my standard were adopted Illinois would have been able to admit the Cellmark lab report and would not have had to go through an elaborate charade to pretend that the Cellmark report was not important evidence crucial to the testifying analyst’s certain identification of Williams as the man who raped L.J.

  • Albert Locher – 3 Promoted Comments

    Professor Friedman, it is not correct, or at least fails to acknowledge the full and clear record, to say that Cellmark “compiled a profile, with the exercise of human judgment, and stated what that profile was.” Cellmark did do that, certainly; but the chart that their machine “spat out,” the electropherogram, was sent from Cellmark to ISP, where Lambatos personally reviewed it, evaluated it exercising her own human judgment, and based on her own review, also “compiled a profile.” She reached the same conclusion that Cellmark did as to the profile, because the genetic evidence, based on the electrophergram, was equally clear to both analysts (the one at Cellmark, and Lambatos); both could look at 2+2 and conclude the answer was 4. If the machine-produced data (the electropherogram) is not hearsay (as everyone seems to agree), then what is the testimonial statement that Cellmark made, that Lambatos relied on? It can only be two things: (1) the chain of custody matters (i.e. that this electropherogram chart indeed came from the L.J. rape sample); and/or (2) that the procedures undertaken to get the genetic material from the swab to the genetic analyzer machine that produced the electropherogram were properly done. If either or both of these are testimonial, then how can the issue be resolved under this line of analysis without calling all analysts (a result you have said will not be required in this case under Crawford)?

    The chain of custody evidence may be weaker here than if Illinois had called someone from Cellmark to testify, but Melendez-Diaz said it is up to the DA to decide how to prove up chain of custody, and there is circumstantial evidence in this record as to chain of custody here. As the solicitor general pointed out, the fact that evidence may be weak is not a confrontation issue.

    As to the propriety of the lab procedures at Cellmark, there is also circumstantial evidence supporting that they were OK. First, Cellmark is an accredited lab. Second, how could poor lab procedures have produced a sample that not only matched Williams to a probability of 1 in 8.7 quadrillion [remember, there was no other Sandy Williams DNA at Cellmark to serve as a possible source of contamination]. And also, third, that the person identified by that match would be the person L.J. would then pick out of a lineup? Again, this may not be the strongest circumstantial case that the lab procedures were OK, but neither is it the weakest, and as Paul has pointed out, if you are going to rely on an analysis that says that weak circumstantial evidence supporting this point is insufficient under the confrontation clause, then haven’t you reverted to Roberts, with its “reliability” standard?

    That is why for me, one of the most telling points in oral argument was when Justice Kagan questioned Mr. Carroll, asking (page 16 of the transcript), “So why is that a Confrontation Clause issue? Why isn’t it just that the prosecutor has failed to prove an element of his case?”

  • Paul Vinegrad – 1 Promoted Comment

    First, I want to thank scotusblog for providing an opportunity for non-academics such as myself to engage brilliant professors like Richard Friedman & Richard Lempert in dialogue on constitutional issues. It is quite a privilege.

    In response to Prof. Lempert’s implied assertion theory:

    In Williams, in effect, what Lambatos said on the stand was the following: “I rely on the electropherogram (not any statement or assertion from a Cellmark employee regarding the accuracy of it or how it was generated) in forming my “match” opinion, because I believe, based upon my past experience with Cellmark as an accredited lab, that it was produced through a reliable scientific procedure.”

    Lambatos did not directly relate any statement or assertion of any Cellmark employee. And her reliance upon the electropherogram (in forming her “match” opinion) was not intended by her as an assertion of anything that any Cellmark employee stated.

    At most, Lambatos was the declarant — the only declarant — and any implied testimony/statement/assertion that the electropherogram was produced through a reliable scientific procedure was subject to cross-examination. Indeed, defense counsel confronted her (regarding any implied assertion by her regarding the reliability/accuracy of the electropherogram) by pointing out that (1) she had no personal knowledge how that graph was produced; (2) she wasn’t there when the graph was produced; and (3) she had no idea what procedures Cellmark actually used in generating this particular graph. Having confronted the “witness” “against” him with these facts, and thereby undermining any implied assertion by her regarding the reliability/accuracy of the electropherogram, the defendant could (and did) argue that her ultimate “match” opinion — an opinion that relied upon the electropherogram being accurate and reliable — was worthless. The defendant’s confrontation right was fully safeguarded through this adversarial process.

    Addressing Prof. Friedman’s comments:

    Point 2. Contrary to Prof. Friedman’s claim, circumstantial evidence (and the reasonable inferences that can be drawn therefrom) can (and did) establish that the Cellmark DNA profile from the victim’s vaginal swab — a graph not containing any express or implied statements or assertions by any human being — that Lambatos compared to the defendant’s DNA profile “matched.”

    Prof. Friedman’s argument that the situation in Williams is “exactly” the same as an “eyewitness” giving Lambatos a physical description of the assailant, and her testifying that the description by the out-of-court declarant “matched” the defendant, completely misses the mark.

    In Prof. Friedman’s hypo an out-of-court declarant (a human being) made a statement by asserting that the assailant was a particular height and weight, etc. In Williams, there is no statement, no assertion, by a human being, set forth in the graph that Lambatos testified matched the defendant’s DNA profile.

    A more apt example of the scenario presented in Williams is the following: An ATM camera took a picture of the rapist committing the crime and Lambatos (or someone familiar with the defendant’s physical appearance) testified that the picture “matched” the defendant on trial.

    The picture, like the electropherogram in Williams, could not have been produced by the ATM machine unless some human being properly built the camera, correctly set it up in the ATM, made sure that the lighting was such to ensure an accurate snapshot, and regularly maintained the camera to make sure it was in proper working order. Yet, despite the conduct of humans in ensuring an accurate picture, no one would seriously contend that the picture produced by the camera was a statement or an assertion within the ambit of the hearsay rule, would they?

    Point 4. Prof. Friedman’s hope that the Court doesn’t edge back towards Roberts is a day late and a dollar short. The Court already did that in Bryant by its emphasis throughout the opinion on reliability-based hearsay exceptions. If there is to be more backsliding from Crawford’s “wodden” testimonial approach (Justice Kennedy’s description in Melendez-Diaz, not mine), I believe it will be members of the Court adopting Justice Thomas’s “formalized testimonial materials” theory — a narrower formulation than Justice Scalia’s and Prof. Friedman’s. And an estimation, a proxy, that is certainly more closely aligned with whatever relatively clear 18th century historical record exists regarding the meaning of the phrase “witnesses against.”

  • Charles Nesson – 4 Promoted Comments

    questions for richie friedman:

    The moral force of the Raleigh story lies in Raleigh’s call to confront his accuser:

    1. Is Cellmark Williams’ accuser?

    2. Does it make any difference to you whether Cellmark is or is not his accuser?

    3. Why should the admissibility of testimonial statements which are not accusatory be determined by judges at a constitutional level? Why not leave the issue of their admissibility to the lower realm of the hearsay and expert basis rules?

    Sole reliance on such evidence to convict may raise a due process problem, but that is an issue of sufficiency of the evidence to convict, not admissibility of the evidence for the jury to consider.

    :<)

  • Aaron Tang – 0 Promoted Comments

    Friday’s topic: The Court’s recent Confrontation Clause cases, beginning with its decision in Crawford v. Washington, are often viewed as a triumph for proponents of originalism, as Crawford’s basic rule is based on a historical view of the meaning of the Confrontation Clause at the Founding. Yet as the late Chief Justice Rehnquist and Justice Kennedy have argued, in reaching this result Crawford implies that U.S. courts (including luminaries such as John Marshall) misinterpreted the Confrontation Clause for the first 218 years of its existence. The counter-argument is that Crawford actually reinstates the proper understanding of the Clause, and that the Court improperly departed from this understanding in Ohio v. Roberts. What does this debate tell us about originalism as a mode of Constitutional interpretation? Is a correct view of the Constitution “better late than never,” or are originalists wrong to claim to a “correct” view of the Constitution in the first place?

    • Ronald Carlson – 1 Promoted Comment

      I just read the Sixth Amendment again, looking for the word “testimonial.” I could not find it anywhere in the text of this most important constitutional provision. Yet this seized-upon term is deemed the key to interpreting the Constitution. Worse yet, slavish obedience to its imagined mandates has spawned unwanted disharmony. Consider the sometimes intemperate dissent lodged against the majority opinion in Michigan v. Bryant. The dissent says it is all about whether an emergency makes a declaration nontestimonial. Whether this unwarranted approach is used in an effort to destabilize decades of Supreme Court jurisprudence or simply to invalidate the last words of a dying declarant, application of the “test” is not worth the candle.

    • David Schwartz – 1 Promoted Comment

      The vigorous debates over the extent of “testimonial” hearsay under Crawford is valuable. What puzzles me is the handwringing about the purported “indeterminacy” of that concept, as if the imprecise boundary of “testimonial” is more problematic than the fuzzy edge of any other legal rule – such as “reliable” hearsay under a “firmly rooted” exception. All legal rules are uncertain at the margins, and Crawford provides more certainty than Roberts. We now know, for instance, that station-house confessions by now-unavailable co-defendants are inadmissible against the defendant. Period. Crawford makes clear why that is an easy case for Confrontation Clause exclusion; yet under the pre-Crawford cases, many judges and justices were still trying to fudge those confessions into evidence as “against penal interest” statements under 804(b)(3).

      I think Crawford is Justice Scalia’s greatest opinion (I would say his only great opinion), and if there is a case to be made for originalism, it has to use Crawford as exhibit A. In a closely reasoned and convincing historical analysis, Justice Scalia showed the legal context in which the 6th Amendment was drafted and persuasively showed the kinds of problems the framers intended to reach. Scalia, who has no loved for criminal defendants, reaches a principled result by following where the analysis leads him, with a rigor unusual for most justices most of the time, originalists included.

      What makes Crawford a good case for originalism is that it is not only more coherent than the approach it replaces; but it also stands as an instance in which the original intent is more protective of the rights in question than a pragmatic, abstract interpretation of the right. Under Roberts’ mushy vision of why we even have a Confrontation Clause, untethered to historical understandings, the right was far more subject to erosion from the relentless pressure of the governmental interest in crime control. I don’t believe originalism works well in all cases of constitutional interpretation. But it is worth thinking about why it works so well in Crawford.

    • – 2 Promoted Comments

      In oral argument Justice Kennedy remarked that “the key actor in the play, the Hamlet in the play, is the person who did the test at Cellmark.”

      Kennedy was right, though not for the reasons he thinks. Cellmark’s analyst did play a role akin to Hamlet—a King Hamlet, that is, not the prince.

      It was the king’s ghost who gave evidence of murder most foul, just like Cellmark. And the killer Claudius, like Williams, couldn’t confront that evidence; the ghost spoke to Young Hamlet alone. Horatio, no fan of hearsay, demanded “the sensible and true avouch of mine own eyes” before believing. But grieving Prince Hamlet took “the ghost’s word for a thousand pound.” He found Claudius guilty and, with a poison-tipped sword, delivered lethal injection.

      By Confrontation Clause standards, Claudius got screwed. Or so Walter Raleigh might have said. Raleigh, Shakespeare’s contemporary, was in the Tower of London as “Hamlet” premiered at the Globe. But “Hamlet” was basically a revenge tale, after all. It succeeded if audiences left convinced that rough justice was done. Sir Raleigh’s plight was probably far from their minds. And so “Hamlet” was a hit.

      Here on SCOTUSblog, our Globe is the Supreme Court chambers, and WILLIAMS is our drama. The Justices may think of Raleigh, but like the Bard, they know what their audience wants: justice—the poetic kind—with a clear narrative frame.

      Ghosts don’t tangle courtroom plots anymore, yet science, in banishing such mysteries, has itself become mysterious. Laymen can never comprehend DNA analysis, its dangerous strengths and hidden weaknesses—just as Hamlet could not really tell “a spirit of health [from] goblin damn’d…intents wicked or charitable.”

      In sober moments these doubts may matter. But when something’s gone rotten, we adopt Hamlet’s grief and bloodlust. We follow where the ghost beckons, up to “the dreadful summit of the cliff.” On that cliff Raleigh is far from our minds.

      On that cliff DNA is plenty reliable enough. That’s why the Court won’t free Williams. The only question is what tale it will spin.

      CRAWFORD, after all, was sold as principled protection for defendants. CRAWFORD refused “to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’”

      But the Court didn’t really mean it. Compare BRYANT, a 2011 case about “ongoing emergencies”—an escape valve for public pressure that demands criminals receive justice, no matter how rough. BRYANT suggests “there may be other circumstances, aside from ongoing emergencies,” where a declarant’s purpose sidesteps the Sixth Amendment, and “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”

      A rose by any other name? It takes little imagination to see how WILLIAMS will use BRYANT to clear away practical barriers for DNA evidence—our modern equivalent of an all-knowing ghost. It will happen because our justice system remains, like “Hamlet,” the story “of carnal, bloody, and unnatural acts, of accidental judgments, casual slaughters.” That’s what sells tickets.

      HLS students 54843 and 59421

    • – 1 Promoted Comment

      Some may argue that the consequence of Crawford’s originalist approach is largely positive in that it upholds the adversarial process and respects the cross-examination mechanism as a means for protecting the innocent until proven guilty. The problem arises, however, when strict originalism does not shed light on how the Crawford doctrine should apply to Constitutional evidentiary matters unique to the twenty-first century. As Albert Lochner correctly points out, “‘Strict originalism’ is of limited value when trying to determine how the Court should deal with modes of evidence that did not exist when the Sixth Amendment was adopted.” Specifically, identifying the framers’ subjective intent regarding the relationship between the Confrontation Clause and an expert witness’s statement regarding forensic evidence is impossible. Thus, in modern-day scenarios such as that presented in Williams, originalism in a vacuum (what I call “naked originalism”) is an unhelpful approach to Constitutional interpretation.

      Perhaps it is in part due to the shortcomings of naked originalism that some justices are subsequently reaching for alternative rationales for their decisions. Rather than discussing America’s founding principles of liberty, justice, and “we the people,” they are discussing efficiency and contending that it is too costly to require lab technicians to testify at trial regarding DNA results. But (adapting from Crawford) dispensing with confrontation because such cross-examination is inefficient is akin to reducing juries down to one – a change that would inevitably lead to more efficiency, but eliminate the presence of “we the people” in criminal trials.

      For these reasons, I prefer Amartya Sen’s “constitutional motivation” as a mechanism for Constitutional interpretation. This approach not only avoids liberty-infringing results such as the school segregation mentioned by Bernard Freamon, it also maintains the flexibility to respond to twenty-first century subjects using a methodology grounded in America’s founding principles.

      This dichotomy between strict/naked originalism and constitutional motivation also lurks behind the scenes of Professor Nesson’s comments regarding accusers. Crawford’s focus on “witnesses” rather than “witnesses against” shows how the results of naked originalism can vary greatly depending on which subsection of the original phrase the judge focuses. By focusing on “witnesses” and defining such term with a nineteenth-century American dictionary, the Court develops its “testimonial” standard for Confrontation Clause jurisprudence, overlooking the fact that such term never appears in the Constitution. However, adoption of Sen’s constitutional motivation approach in place of naked originalism may have decreased the likelihood of such misguidance, as analysis of America’s founding principles might have reminded the Court of the importance of the adversarial process during this country’s inception (recall Raleigh), thereby refocusing the justices’ interpretive efforts on “witnesses against.” While Sen’s constitutional motivation leaves unclear whether judges would have interpreted such phrase as Professor Nesson does (i.e., accusers) or as Richard Friedman does (i.e., witnesses called by opposing counsel, even if they do not make accusations), at least the Court would have been focusing on the correct operative element of the Sixth Amendment, rather than on a term stemming from Webster’s dictionary.

      HLS Student 49928

  • Bernard Freamon – 1 Promoted Comment

    It is a pleasure to weigh in on a topic that has caused many of my evidence students to ask whether they had signed up for a reprise of constitutional law rather than evidence. The topic is “originalism” and the primary question for us today is whether the Crawford decision, and its rather troublesome progeny, can tell us anything about originalism as a mode of constitutional interpretation. I would suggest that the Crawford line of cases, particularly the very recent cases–Melendez-Diaz, Bryant, Bullcoming and now Williams–profoundly demonstrate the difficulties engendered by application of what Erwin Chemerinsky has called “strict” originalism, that is, a mode of interpretation requiring the Court to follow the literal text and “the specific intent” of its drafters. Justice Scalia, in his opinion in Crawford, sought to be “strictly” originalist in his interpretation of the Confrontation Clause. His version of “strict” originalism seeks to apply the original meaning of the constitutional clause rather than simply the drafters intent and, under the facts of Crawford, this was fairly easy to do. If the out of court evidence is “testimonial,” it must be rejected unless the declarant is unavailable and the defendant has had a prior opportunity to cross-examine its author or he is deemed to have forfeited that right. The result was wonderful for criminal defendants and dismaying for prosecutors, but nonetheless understandable because all Confrontation clause analyses involving unavailable declarants would turn on (1) whether the out-of-court statement was “testimonial” and (2) whether the defendant had a prior opportunity to cross-examine the declarant. Easy, bright-line rules to follow. The powerful paradigm presented by the historical example of Sir Walter Raleigh carried the day, even though the Court did not define “testimonial.” The subsequent cases, particularly the cases involving scientific reports and forensic analyses, but also cases like Davis and Bryant, show that “strict” originalism is not always satisfactory when courts are required to interpret the constitution in order to adjudicate a dispute involving modes of evidence and criminal procedure that just simply did not exist at the time of the framing of the 6th amendement. This is the larger problem with “strict” or even “purposive” originalism and the Crawford line of cases graphically show that. Critics of “strict” originalism have pointed out that the “strict” originalists would not have permitted the Court to outlaw racial segregation in the District of Columbia schools because those schools were segregated when the Equal Protection Clause was adopted. It is only because of modern sensibilities that we want to outlaw segregation, they argue, and not because of the meaning of the words of the clause, as understood by the framers. There is an eerie similarity between the segregation issue and the problem of scientific advances in criminal procedure. Several justices have remarked that it will now require 10 scientific witnesses to prove a DNA match in every criminal case if we want to “strictly” apply the Confrontation Clause.

    As one who actually firmly supports the principle established in Crawford, this state of affairs causes me some despair but I am loathe to advocate a return to the morass created by Roberts and it seems to me that the hard problems will just have to be sorted out using the “testimoniality” formulation as the Court goes forward. Because the problem is hard does not mean we should abandon it. I only have some preliminary thoughts on this but here goes: (1) There seem to be two strands of “testimonial” evidence emerging in the cases, one set involving viva voce evidence of an out-of-court, oftentimes eyewitness, declarant and the other involving scientific and forensic testing that is interpreted by an expert who is far from the crime scene. In the first category, Crawford can still be consistently applied without much difficulty. By this view, the Bryant decision is probably wrong. In the second category, Crawford’s third formulation, involving statements “that would lead an objective witness to reasonably believe that the statement would be avaialble for later use at trial” would seem to also cover reports by scientific and forensic examiners and it should still be applied, or their procedures changed, so we don’t have a parade of 10 witnesses. Otherwise we will have the specter of a continental procedure in the scientific cases and I don’t think we want that in our system; (2) The existence of evidence rules permitting reliance on expert reports of a type “reasonably relied upon” by experts in the field does not change any of this. The originalists, and even non-originalist constitutional theorists all acknowledge that the Confrontation Clause is about higher principles and the purposes behind that evidence rule simply do not cut the mustard when we are talking about bedrock criminal procedure norms; (2) Jack Balkin has argued that originalism and the notion of a “living constitution” are compatible with each other but he seems to suggest room for a larger and more inclusive (“moderate”) originalism, one that remains true to the framers purposes and desires but accomodates modern practices. I agree with that and I think that the Crawford line of cases will ultimately follow that path. The constitutional thinkers who have discussed originalism have concentrated on the big and heavy political disputes (segregation, commerce, speech, arms) and largely ignored criminal procedure. It would probably be fruitful to look at other aspects of criminal procedure in the constitutional structure and caselaw (search and seizure and self-incrimination come to mind) to see whether originalism has played a role in reaching interpretive understandings and, if so, how. This might help us with the Confrontation Clause jurisprudence but, alas, that search will have to be for another day.

    • Albert Locher – 3 Promoted Comments

      I agree with Professor Freamon that “strict originalism” (at least Justice Scalia’s view thereof concerning the Confrontation Clause) is of limited value when trying to determine how the Court should deal with modes of evidence that did not exist when the Sixth Amendment was adopted. It is worth remembering that the Sixth Amendment was proposed in 1789, and adopted in 1791. At that time, only a few branches of science (as we know science today) were even in their infancy; forensic science as we know it did not exist; and the manner in which science was practiced, both on an exploratory and practical basis, was not at all what it has become in the last 200 years. One can search the available resources in vain to learn how forensic scientific evidence was handled by late 18th century courts, in England or the U.S. That is probably just as well. It would not seem productive, and certainly not prudent, to search for hidden wisdom about how the law should deal with scientific evidence from an era when one of the principle forms of medical treatment was bleeding the patient.

  • Pamela Metzger – 1 Promoted Comment

    The originalism debate aired in Crawford and its progeny is an important one for the future of constitutional criminal procedure. For scholars, Crawford continues to spark fascinating inquiries about the original public understanding of the Confrontation Clause. For criminal defendants, Crawford has restored an essential adversarial entitlement.

    However, scholars and practitioners of constitutional criminal procedure ignore, at their peril, the larger implications of the originalist criminal procedure jurisprudence that Crawford portends. As Aaron suggests above, in a post-Crawford world, we must carefully consider whether the Court’s commitment to Confrontation Clause originalism threatens good or ill for the larger panoply of constitutional criminal procedure rights. As I explain below, I have grave concerns that an originalist approach to criminal procedure imperils many of our most fundamental expectations about modern criminal process.

    Most contemporary originalists advocate the “original public meaning” approach to the constitution and its amendments. In Crawford, this originalist analysis returned the Confrontation Clause from the hinterlands of evidence law to the mainland of constitutional criminal procedure. The result was been an important restoration of the constitutional commitment to a criminal procedure that has a profoundly adversarial structure. However, a rigid application of originalism to constitutional criminal procedure risks a reversal of other constitutional protections that are essential to adversariness in modern criminal procedure. (For purposes of this comment, I am addressing the “exclusive originalism” that views originalism as the sole legitimate means of constitutional interpretation.) Carried to its logical conclusion, this rigid constitutional originalism may demand the reversal of even the most well-established constitutional criminal procedure doctrines – even those that are more central to guarantees of adversarial process.

    For example, an originalist interpretation of the Sixth Amendment right to counsel would justify overturning the Sixth Amendment appointed-counsel guarantee that was established in Gideon v. Wainwright. After all, to the Framers and their contemporaries, the Sixth Amendment meant only that any criminal defendant who could secure counsel had a right to appear through that counsel. Certainly Crawford demonstrates that the Court is prepared to sacrifice precedent to principle when the principle at issue is a Sixth Amendment guarantee. Similarly, Professor Donald Dripps has argued that originalist commitment to Crawford’s confrontation right, coupled with an originalist understanding of the right counsel might mean that a pro se defendant’s cross-examination of witnesses at a preliminary hearing satisfies the counsel and confrontation guarantees. Thus I am deeply skeptical about originalism’s capacity to produce rules of constitutional criminal procedure that continue to protect structural adversariness.

    I do not which to underplay the very important ways in which the Court’s confrontation originalism has refocused constitutional criminal procedure on the Framer’s intentional creation of an adversarial structure. Thus far, in Crawford and its progeny, the reversal of the Roberts precedent has indeed strengthened the adversarial structure of criminal procedure. And, as I have written elsewhere, I firmly believe that the structural imperatives of confrontation are essential elements of an adversary criminal procedure.

    Still, originalism may prove to be a double-edged sword for promoting an adversarial architecture of criminal procedure. Those of who favor an increased focus upon the adversarial architecture of criminal procedure cannot afford to adopt originalism as a means to an adversarial ends. True, the current Supreme Court’s originalism has produced a Confrontation Clause outcome that advances core structural components of an adversarial process. However, we ignore, at our peril, the need for a more nuanced, less rigid approach, to constitutional criminal procedure.

  • Richard Friedman – 4 Promoted Comments

    Before I offer a few words on today’s topic, let me respond to a couple of the prior comments; I am sorry I cna’t be exhaustive.

    I think the descriptions of the facts offered by Albert Locher and Paul Vinegrad are not quite right. The electropherogram that Cellmark generated was not of the male profile; rather, Cellmark deduced the male profile by subtracting from the mixed profile (which was reflected in the electropherogram) the profile of the victim. (No electropherogram of the female profile was included in the report.) That was a human operation, and it required human perception and judgment. The presentation of the profile was a human statement as to what was found on the vaginal swab.

    I believe that Wiliams should win even if this were not so. The circumstantial evidence argument — that the particular piece of paper bearing an electropherogram can be shown circumstantially to be that of a particular test without the testimony of anybody form the laboratory — is in my view pretty weak. But if you address the actual facts of the case, there is just nothing to that argument at all, I don’t believe. I hope to say more about this soon on my blog (www.confrontationright.blogspot.com).

    In answer to the questions posed by my old teacher (and Evidence teacher, no less — from 1975!) Charlie Nesson: The confrontation right is one with respect to witnesses, not just accusers. Some witnesses provide pieces of the puzzle, even crucial pieces, without accusing a person of doing anything. Suppose one person says, “I can’t identify the perpetrator, but I saw that he was wearing blue sweatpants and an orange sweatshirt and I saw him running towards the Flatiron Building at 10:30,” and another person says, “I saw a person — whom I can now identify as the defendant — run into the Flatiron Building at 10:30, wearing blue sweatpants and an orange sweatshirt.” I don’t think there’s any doubt that the second person (assuming the statement is made with anticipation of prosecutorial use) is a witness against the defendant, even though he hasn’t accused the defendant of anything.

    This leads me to a discussion of originalism and the Confrontation Clause. Personally, I tend to be eclectic in my approach to the Constitution; I think text and original meaning matter, in some contexts a lot, but they’re not the whole story. In the case of the Confrontation Clause, I do think text and original meaning matter quite a lot, because the Clause reflected a procedure that had already been established for hundreds of years in common law courts, and was a central feature of some other systems as well: Witnesses against an accused must give their testimony face to face. (Note, as I suggested in my posting on Wednesday, that the use of the term “testimonial” is not adventitious; giving testimony is what witnesses do. If Crawford had used the term “witness-y statements,” nobody would think they made it up out of whole cloth, but in the English language the word we happen to use is “testimonial” rather than “witness-y”.)

    I think the Confrontation Clause was meant to adopt and protect this basic, long-standing procedure. I don’t think it was meant to constitutionalize the minutiae of evidentiary law as it stood in 1791. Indeed, the law of evidence then was rather primitive, unformed, and very fluid — Edmund Burke said he could teach it to a parrot in a few minutes.

    Put another way — I think that broad understandings of proper criminal procedure in the 17th and 18th centuries are far more important in understanding the proper meaning of the Confrontation Clause than is the status of particular evidentiary doctrines as of 1791. (And I think a focus on such broad understandings should be consistent with Justice Scalia’s attention to the “public meaning” of the text.) And, if I can vent a little bit, if the Court had adopted this approach, it might have adopted a more robust doctrine of forfeiture in 2008 in Giles v. California. And if it had done that, it would not have been tempted to issue an unduly narrow view of “testimonial” in Michigan v. Bryant. (But hey, Paul, that reliability language in Bryant has to be read against Justice Sotomayor’s clarification in Bullcoming; I don’t think it’s going to undermine Crawford to the extent you might hope.)

    • Charles Nesson – 4 Promoted Comments

      Richie says, “In answer to the questions posed by my old teacher (and Evidence teacher, no less — from 1975!) Charlie Nesson: The confrontation right is one with respect to witnesses, not just accusers. ”

      Richie, right there is where you and make your mistake. The constitutional phrase is not just “witnesses” but “witnesses against.” The rhetorical dynamic of confrontation calls for the jury to see the moment of conflict between the accused and his accuser.

      Ron Carlson looks for the word “testimonial” in the Constitution and does not find it. Crawford introduced the word as the constitutional shibboleth of confrontation it in just two sentences, set out separately below. Each speaks with the authority of a dictionary, and speaks from an interpretational philosophy that Amartya Sen characterizes as an “originalism of words.” These are the two sentences:

      (1) “The text of the Confrontation Clause … applies to ‘witnesses’ against the accused–in other words, those who ‘bear testimony.” 1 N. Webster, An American Dictionary of the English Language (1828).

      Note the quote marks surrounding just “witnesses”, not the two word phrase “witnesses against.”

      (2)” ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ Ibid. ”

      Those two sentences set the Court’s on a misguided quest for the meaning of “testimonial”.

      Crawford’s next sentence suggests shows the way out.

      (3) “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. ”

      An “accuser” who makes a “testimonial” statement — there is a narrower category that makes sense.

      Richie does not answer my first question, “Is Cellmark Williams’ accuser?” To him it makes no difference because the Cellmark report was “testimonial”.

      • Charles Nesson – 4 Promoted Comments

        Richie says, “Some witnesses provide pieces of the puzzle, even crucial pieces, without accusing a person of doing anything.” Bingo! That is why treating all “testimonial” witnesses as “witnesses against” sweeps within the ambit of the constitutional requirement the testimonial statements of non-accusers. That is why Melendez and Bullcoming should be overruled and Williams affirmed, and why “testimonial” statements as the focus of confrontation should be narrowed to the testimonial statements of accusers.

        • HLS Evidence Students – 1 Promoted Comment

          Professor Nesson –

          Perhaps the Court can focus on who is a “witness[] against” without overruling Melendez-Diaz and Bullcoming. Someone is not an “accuser” – a “witness[] against” – unless she knows or has reason to know that her testimonial statement is inculpatory.

          A lab technician who confirms that someone’s BAC is over the legal limit has reason to know that her testimony will harm the person whose blood is being tested. Cf. Bullcoming. So too with a technician who determines that someone possessed cocaine. Cf. Melendez-Diaz. Such findings could only go one conceivable way: against the defendant. But a technician who produces a single, unmatched DNA profile does not know whether that profile will be inculpatory or exculpatory. Cf. Williams. And perhaps as importantly: she does not know how to modify her answer to produce an inculpatory result.

          Accordingly, even if the Court focuses on who the “accuser” is in Williams, which should likely lead to it affirming the Illinois Supreme Court’s decision, it may not have to overrule Bullcoming or Melendez-Diaz to do so.

          Students 60886, 61306, and 57609

          • – 1 Promoted Comment

            I agree with the posts above. Because Cellmark did not know whether its statement was inculpatory (see HLS Evidence Students’ post above), Cellmark did not accuse Williams of anything, and its report cannot be covered by the Confrontation Clause.

            The challenge in not overruling prior cases is that Scalia plainly rejected Nesson’s read of the Clause in Melendez-Diaz. (“The text of the Amendment contemplates two classes of witnesses–those against the defendant and those in his favor . . . there is not a third category of witness helpful to the prosecution but somehow immune from confrontation.”). I think Nesson is right that the Court cannot narrow its read of the Confrontation Clause without rethinking Melendez-Diaz and Bullcoming.

            We should also note how far Nesson’s view reaches. If Nesson is right that the Confrontation Clause only covers “accusers” who make testimonial statements, it would fail to cover many witnesses for whom confrontation has traditionally been viewed as essential. Take an example brought up in our evidence class: Hypothetical witness X, not invested in the outcome of the case, says she cannot identify the offender but she can describe his appearance. An expert compares X’s description with the suspect and says, “Based on that description, I think that’s the guy.” Wouldn’t we all agree that the accused has a right to confront the (non-accusing but damaging) witness X? Surely we would want the accused to ask how far away X was from the perpetrator, how attentive she was to the scene, how much time she had to form a perception. But like the lab-analyst in Williams, X is not herself an “accuser” because she does not know or have reason to know that her testimonial statement is inculpatory. Maybe we can avoid this problem by reading “witnesses against the accused” as “human witnesses” (i.e. reports generated by machines, not people, are not witnesses; see respondent brief), but I am not sure this adequately addresses Nesson’s point.

            Perhaps the takeaway here is something else: that originalism simply does not work well as a mode of interpreting the Confrontation Clause. When the founders drafted the Constitution, the criminal justice system looked dramatically different than it looks today. Not only were there no confrontation cases (as there were no intermediate appellate courts), the founders could not have anticipated the fallibility of DNA analysts’ work (see DC PDS brief), nor that an “all-technicians-must-testify” rule would have dire consequences for the criminal justice system (see Manhattan DA’s brief). Modern-day social, economic, and scientific realities of the criminal justice system simply were not in play in the 1790s. In my view, the Supreme Court should recognize the limits of the Confrontation Clause as it relates to these realities. Issues of admissibility and hearsay should be decided by trial judges. They are the proper “law lord” (to use Nesson’s phrase) for these issues because only they are positioned to understand how truth can be best communicated to the jury in any given case.

          • HLS 60630 – 1 Promoted Comment

            The problem with using Scalia’s work in Crawford to parse the Constitution’s right to confront “witnesses against” the defendant into meaning “‘accuser’ who makes a ‘testimonial’ statement,” as Professor Nesson has done, notwithstanding Scalia’s rejection of a third category in Melendez-Diaz, is that it assumes a line can be drawn between accusers and non-accusers. There does not appear to be a satisfactory line that can be drawn. Without a workable line, the addition of “accuser” is effectively meaningless.

            Accusers obviously cannot be limited solely to the specific members of the prosecution. Given that litigation operates through witnesses, this would effectively destroy the category. Conversely, to define the category as ‘all prosecution witnesses’ is overbroad in the other direction and would make this distinction similarly meaningless.

            The middle ground, which has already been put forth in this blog, is to draw a line between testimonial statements that have an inherent accusation regarding the defendant and those that do not. In many ways, this standard would not be unlike the relevance standard. Those whose statements suggest a defendant’s guilt would be accusers whereas those whose statements do not in and of themselves suggest guilt would not be accusers and thus not subject to the Confrontation Clause. Thus, the individuals testing DNA in the abstract—whether it is the unknown DNA found at a crime scene or the DNA taken as a routine matter upon arrest— are not making findings that would be accusatory in and of themselves and thus would not be accusers. Only the person tasked with seeing if DNA from a crime scene matched the DNA of the defendant would be making findings that were inherently accusatory. This framework is satisfactory on another level in the sense that the concerns about bias raised earlier on this thread only arise where testimony has an inherent meaning.

            However, such a framework ignores the reality of how problems might arise. The weak link in the chain that cumulatively builds to an inferential conclusion may not be the same step where the data has come together to the point of being an accusation. The person testing Williams’ DNA had no awareness of the DNA at the L.J. crime scene and thus no reason or ability to manipulate the DNA into matching, either consciously or unconsciously. However, that fact does not preclude the technician being poor at her job for whatever reason and creating a DNA profile of Williams that did not in fact match Williams but happened to be a match for the DNA report at the L.J. crime scene. Upon discovery of that chance match, Ms. Lambatos would compare the two reports and find, correctly, that they do indeed match. The ability to confront in court and cross-examine Ms. Lambatos but not the Cellmark technician would never give Mr. Williams the ability to bring to light the real problem in the analysis, which occurred in a pre-inferential and accusatory step of the proof. He could of course, as he in fact did, show that Ms. Lambatos had no knowledge of the creation of the DNA report. Although not meaningless, the effectiveness of such cross-examination pales in comparison with the opportunity to present the jury with a potentially uncompelling or problematic witness actually testifying to that process. Thus, the accuser test would not necessarily protect the defendant fully and meaningfully or lead to a process most likely to identify truth.

            This point puts the fundamental question of the Confrontation Clause cases in stark relief: is the goal truth, is the goal procedure and process for the defendant, or is the goal procedure and process for society? If absolute truth is the goal, at least one lab technician, if not every single one, should be present, less to give the defendant an opportunity to create reasonable doubt but to double-check to everyone’s satisfaction that no error seems to have occurred.

            If the goal is to create process for the defendant, then the lab tech should testify in the Raleighan sense that no one wants to be convicted on the basis of evidence or accusations that were not allowed to be challenged. The defendant should have the right to ask questions that might show potential ambiguity in the findings against him. To the degree that the point of the Constitution and Bill of Rights is to protect individual rights and safeguard individual liberty as part of some sort of ex ante pact made by the people to protect themselves, the goal should be defendant-focused.

            If, however, the goal is creating a dispute resolution machine that society as a whole can accept—that is, being crippled neither by the fear of unjust incarceration without process nor by the fear of criminals roaming the streets—then the lab tech should not be required to testify. Requiring the testimony of one, or worse all, of the Cellmark lab techs involved likely adds a not insignificant burden to forensic labs and the prosecution, as noted in oral argument, without providing much at all in the way of increased reliability. Although science should not be treated as infallible, as it inevitably is subject to human limitations to some degree, the likelihood of problems with DNA analysis is so much less than that of eyewitnesses that to create a system that makes it easier to provide unreliable evidence than highly reliable evidence is not serving the goal of creating a dispute resolution machine that meets society’s needs. From the “law lord” perspective, if the goal of designing a functional system of dispute resolution is to create a reasonably efficient process that has legitimacy in the eyes of the society, it does not make sense to add a potentially expensive requirement that does not increase the perceived legitimacy or perceived accuracy. This is the approach of Solomon.

            The move from Roberts to Crawford is considerable indication that the defendant-focused line of thought is winning because it puts a strong statement of the constitutional right above practicality and realism. Despite this superficially robust protection of the Constitution, cases like Bryant and Davis show that the Court has limits in its willingness to stand up for the absolute right of confrontation when it poses a functional problem to conviction. Although there is no indication that Cellmark could not have offered lab tech to testify in this case, future cases might present a situation where the lab tech cannot be present, as discussed by others on this blog. In any case, even when testifying would not be impossible, it still might be expensive and undesirable.

            As in Bryant and Davis, the substance of the testimony at issue gives a clear sense of Williams’ guilt. I doubt the Court, when push comes to shove, will put procedure and process ahead of its consideration of clear guilt of such a violent crime, even if it would never admit to a harmless error type of analysis. I think Melendez-Diaz and Bullcoming, despite being more similar factually, can be distinguished practically if not legally given the nature of the crimes in those cases, which were less-extreme, non-violent crimes with shorter penalties. Faced with a stranger rape case, I believe the Court will likely, or at least should, as it did in Davis and Bryant, recognize the problem with Crawford and find fig leaf fictions to back away from the radical holding of Crawford in situations where reliability of the testimony and impression of guilt for a violent and major crime are both high. The Court can say that the testimony was merely part of her forming her expert opinion, just like the Bryant and Davis testimony was claimed not to be made for trial purposes. That fiction is fig leaf enough, regardless of how illogical it would be to be relying on something without believing its truth.

            In this sense, the Crawford sea change does not seem as powerful as it might have been, nor does the attitude of Roberts, if not the details, seem to be truly gone. However, this may be for the best, as a sweeping definition of “testimonial” is impractically large but the attempted intervention via the addition of accuser to the test does not appear to be functionally useful. Thus, such fig leaf fictions about the scope and meaning of “testimonial” may be necessary, at least as long as originalism reigns, for the continued functioning of our dispute resolution machine, which no longer resembles the trials our Founding Fathers would have recognized.

            - HLS Student 60630

        • – 2 Promoted Comments

          Professor Nesson,

          Williams should come down for Williams lest the entire rationale underlying confrontation and the rules of evidence be undermined.

          Trials are premised on an event (a tort, a murder, etc.), which serves as a foundation for constructing a narrative of other events, but evidence cannot fathom a naked event: it fathoms the event conceptualized by assumptions about nature and human action. The rules of evidence provide frameworks through which courts and juries conceptualize events, one that leads to dispute-resolutions, viz. verdicts.

          A verdict is manifestly not a statement of what happened. What “really” happened is inscrutable, and the courts are not well equipped to find out. [Notably, court decisions are often criticized when they rule, e.g., on matters of scientific fact (naked events). Rules about what are seem illegitimate because they are outside of the court’s scope.] A verdict, rather, conveys what the law recognizes as reality. The message is not that the occurrence of some naked event leads to legal consequences, but rather that a story about a naked event, once believed, leads to some consequence. Viewed at from that perspective, the charge starts the trial with a story about facts for the court to believe.

          Facts correspond to the two-dimensional system of line segments discussed in relation to the Necker Cube. Facts come together to project a story, a truth assignment to the facts. As with the Necker Cube, without a point of reference any set of facts can be made to project more than one story. In a trial the opposing parties may each have one overall story, but to the extent that no story is complete there are multiple sub-stories. The point of reference chooses the story: it is what an adversarial trial culminating in a verdict actually creates. Since one chooses the story one believes, the function of the trial is to create conditions whereby beliefs can be formed. The conjunction of the probability of beliefs need not be probable: assertions accepted as “true” are merely collectively more probable than their collective negations.

          A Necker Cube, however, is ambiguous. If an indisputable reference-point enters the schema, the Cube is destroyed. Unchallengeable DNA evidence forestalls the possibility of challenge: science is concerned with truth in the absolute sense, creating a story to which all must assent; Williams’ DNA pits the puny dispute-resolution machine of the law lords against the absolute truths of the science lords, allowing in to the judicial knowledge-space a reference-point external to the Necker Cube. Confrontation demands “not that evidence be reliable, but that reliability be assessed… in the crucible of cross-examination” (Crawford).

          Even if “Lambatos disclosed the underlying facts from Cellmark’s report for the limited purpose of explaining the basis for her opinion” the underlying “naked event” (the DNA record-matching) is unchallengeable, a deus-ex-machina. Unchallengeable science creates bad legal theatre (a story with no dénouement, no moment of conflict between accused and accuser), and thus creates unfair trials premised on the science lords’ rationalist-absolutism, not on the jury’s black box/dispute-resolution machine.

          HLS student 60977

  • Albert Locher – 3 Promoted Comments

    Professor Friedman, the vaginal swab had been subjected at Cellmark to “differential extraction,” a process whereby the sperm DNA can be extracted separately from the non-DNA sperm in the sample (which in a rape case vaginal swab is commonly the female’s DNA). The sperm DNA that is then extracted is commonly called the “male fraction,” and it was that sample that went into the genetic analyzer and produced the electropherogram of the rapist. On this electropherogram, there was one very low or shallow peak that matched one allele for the victim, and which Cellmark felt was some bleed-over during the differential extraction process (which does sometime happen). Lambatos, looking at the same profile, felt that this low/shallow peak did not represent a true allele at all, but rather, simply some “background noise,” which also happens in this type of analysis. Both the Cellmark analyst and Lambatos were able to readily distinguish this low/shallow peak, whatever it was, from the very strong peaks representing the male profile, and both did so. In so doing, Lambatos was engaging in a “human operation, and it required human perception and judgment.”

  • Bernard Freamon – 1 Promoted Comment

    I have a brief comment in response to yesterday’s posts. I think that Pamela’s observations on the dangers of what she calls “rigid” originalism for constitutional criminal procedure are right. Why should the “original public meaning” matter greatly for Confrontation Clause purposes but not matter so much for Counsel Clause purposes? Gideon is like the segregation decisions. It is not justified by a strictly historicist understanding of the clause but we know it is right and completely consistent with the meaning of the clause. We certainly do not want a slippery understanding of confrontation in our criminal justice system but this does not mean that our definitions must be formalistically frozen by historical understandings. The conceptions of rights engendered by the language of the constitution must be larger than that. In thinking about this problem, my mind recalls the great number of post-judgment DNA exonerations we have witnessed and continue to witness in our criminal justice system. These events show that such scientific testing, and the testimony of experts proving the results of such testing, are certainly accusatory and testimonial, in the core conception contemplated by Crawford. The Court should reverse in Williams and continue to follow Melendez-Diaz because, even under modern conditions, this kind of evidence must be tested in the crucible of confrontation. The “original public meaning” is not enough to justify such a result. It is also the jurisprudential lessons that we draw from that meaning.

  • – 2 Promoted Comments

    Professor Nesson,

    Williams should come down for Williams lest the entire rationale underlying confrontation and the rules of evidence be undermined.

    Trials are premised on an event (a tort, a murder, etc.), which serves as a foundation for constructing a narrative of other events, but evidence cannot fathom a naked event: it fathoms the event conceptualized by assumptions about nature and human action. The rules of evidence provide frameworks through which courts and juries conceptualize events, one that leads to dispute-resolutions, viz. verdicts.

    A verdict is manifestly not a statement of what happened. What “really” happened is inscrutable, and the courts are not well equipped to find out. [Notably, court decisions are often criticized when they rule, e.g., on matters of scientific fact (naked events). Rules about what are seem illegitimate because they are outside of the court’s scope.] A verdict, rather, conveys what the law recognizes as reality. The message is not that the occurrence of some naked event leads to legal consequences, but rather that a story about a naked event, once believed, leads to some consequence. Viewed at from that perspective, the charge starts the trial with a story about facts for the court to believe.

    Facts correspond to the two-dimensional system of line segments discussed in relation to the Necker Cube. Facts come together to project a story, a truth assignment to the facts. As with the Necker Cube, without a point of reference any set of facts can be made to project more than one story. In a trial the opposing parties may each have one overall story, but to the extent that no story is complete there are multiple sub-stories. The point of reference chooses the story: it is what an adversarial trial culminating in a verdict actually creates. Since one chooses the story one believes, the function of the trial is to create conditions whereby beliefs can be formed. The conjunction of the probability of beliefs need not be probable: assertions accepted as “true” are merely collectively more probable than their collective negations.

    A Necker Cube, however, is ambiguous. If an indisputable reference-point enters the schema, the Cube is destroyed. Unchallengeable DNA evidence forestalls the possibility of challenge: science is concerned with truth in the absolute sense, creating a story to which all must assent; Williams’ DNA pits the puny dispute-resolution machine of the law lords against the absolute truths of the science lords, allowing in to the judicial knowledge-space a reference-point external to the Necker Cube. Confrontation demands “not that evidence be reliable, but that reliability be assessed… in the crucible of cross-examination” (Crawford).

    Even if “Lambatos disclosed the underlying facts from Cellmark’s report for the limited purpose of explaining the basis for her opinion” the underlying “naked event” (the DNA record-matching) is unchallengeable, a deus-ex-machina. Unchallengeable science creates bad legal theatre (a story with no dénouement, no moment of conflict between accused and accuser), and thus creates unfair trials premised on the science lords’ rationalist-absolutism, not on the jury’s black box/dispute-resolution machine.

    HLS student 60977

  • – 1 Promoted Comment

    At the risk of pandering to our dear professor, Charles Nesson is right in suggesting that the Court’s determination must focus not on the elusive objective of defining testimony, but upon the necessity of determining who and what is the “accuser” in the evidence offered from the stand. Constructing the word “witness” within the Confrontation Clause to compromise essential accusatory testimony is the most feasible means by which the Court can give trial judges direction in their future applications of the Confrontation Clause to expert testimony.

    It seems inevitable that a year from now ADAs across the country will organize their presentation of expert testimony mindful of the Williams Rule: an expert who offers from the stand accusatory conclusions, the truth of which is entirely dependent upon the truth of a third-party analyst’s inherently accusatory finding, introduces testimonial hearsay and implicates the defendant’s rights under the Confrontation Clause. The holding will encourage prosecutors to place at least one such third-party analyst on the stand before the key expert; should the prosecution fail to do so, defendants will possess a waivable right to demand that the prosecution produce the original declarant or an adequate substitute, with the determination of such adequacy being left to the discretion of the trial judge. To curb the prospect of prosecutors calling innumerable additional analysts—or perhaps worse, none at all—the Court will allow that trial judges retain broad discretion to limit witness production to those first-source analysts who are reasonably deemed accusatory.

    Given DNA evidence’s perceived objectivity and reliability, forensic experts and the evidence they offer are both forceful “accusers” in the trial process. The use of DNA evidence is widespread. In Williams, the defense’s best chance for challenging the expert’s conclusion lay in challenging the “facts” presupposed by that conclusion. The decision envisioned above—which would ultimately require the State to produce at least one Cellmark representative—would not only safeguard a right for the defendant where such a right was in momentarily thought in limbo, but it will also mitigate concerns about the administrability of imposing a heightened witness production requirement by allowing trial judges the discretion to cap the production of first-source witnesses.

    The Williams rule will be a useful follow-on to Daubert, further refining the relationship between the judge and the expert. While Daubert called upon the trial judge to determine whether an expert’s testimony reflects “scientific knowledge,” is derived from “scientific method,” and is based on “good grounds,” Williams will empower the judge to consider who is an originator of accusatory testimony, and it will give the defendants the right to challenge accusatory testimony when it is introduced through a surrogate. Defendants should not be steamrolled by the facially objective force of scientific statements. Judges’ and defendants’ ability to challenge the “science” of expert knowledge may be limited, but both are positioned to question methods, protocols, and reliability underlying its production. The Supreme Court should entrust judges with the power to determine when purported science is the real “accuser,” hidden behind the shroud of an expert witness who did not herself make or oversee the finding that is fundamental to her accusatory statement. And, in turn, defendants should have an opportunity to challenge where this science comes from.

    HLS Students 49562, 49617, 50765, 60584

  • – 2 Promoted Comments

    HLS students 54843 and 59421

    In oral argument Justice Kennedy remarked that “the key actor in the play, the Hamlet in the play, is the person who did the test at Cellmark.”

    Kennedy was right, though not for the reasons he thinks. Cellmark’s analyst did play a role akin to Hamlet—a King Hamlet, that is, not the prince.

    It was the king’s ghost who gave evidence of murder most foul, just like Cellmark. And the killer Claudius, like Williams, couldn’t confront that evidence; the ghost spoke to Young Hamlet alone. Horatio, no fan of hearsay, demanded “the sensible and true avouch of mine own eyes” before believing. But grieving Prince Hamlet took “the ghost’s word for a thousand pound.” He found Claudius guilty and, with a poison-tipped sword, delivered lethal injection.

    By Confrontation Clause standards, Claudius got screwed. Or so Walter Raleigh might have said. Raleigh, Shakespeare’s contemporary, was in the Tower of London as “Hamlet” premiered at the Globe. But “Hamlet” was basically a revenge tale, after all. It succeeded if audiences left convinced that rough justice was done. Sir Raleigh’s plight was probably far from their minds. And so “Hamlet” was a hit.

    Here on SCOTUSblog, our Globe is the Supreme Court chambers, and WILLIAMS is our drama. The Justices may think of Raleigh, but like the Bard, they know what their audience wants: justice—the poetic kind—with a clear narrative frame.

    Ghosts don’t tangle courtroom plots anymore, yet science, in banishing such mysteries, has itself become mysterious. Laymen can never comprehend DNA analysis, its dangerous strengths and hidden weaknesses—just as Hamlet could not really tell “a spirit of health [from] goblin damn’d…intents wicked or charitable.”

    In sober moments these doubts may matter. But when something’s gone rotten, we adopt Hamlet’s grief and bloodlust. We follow where the ghost beckons, up to “the dreadful summit of the cliff.” On that cliff Raleigh is far from our minds.

    On that cliff DNA is plenty reliable enough. That’s why the Court won’t free Williams. The only question is what tale it will spin.

    CRAWFORD, after all, was sold as principled protection for defendants. CRAWFORD refused “to leave the Sixth Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous notions of ‘reliability.’”

    But the Court didn’t really mean it. Compare BRYANT, a 2011 case about “ongoing emergencies”—an escape valve for public pressure that demands criminals receive justice, no matter how rough. BRYANT suggests “there may be other circumstances, aside from ongoing emergencies,” where a declarant’s purpose sidesteps the Sixth Amendment, and “standard rules of hearsay, designed to identify some statements as reliable, will be relevant.”

    A rose by any other name? It takes little imagination to see how WILLIAMS will use BRYANT to clear away practical barriers for DNA evidence—our modern equivalent of an all-knowing ghost. It will happen because our justice system remains, like “Hamlet,” the story “of carnal, bloody, and unnatural acts, of accidental judgments, casual slaughters.” That’s what sells tickets.

    HLS students 54843 and 59421

  • – 1 Promoted Comment

    By Nesson-ites 60612, 60786, 50193, 60976

    The Confrontation Clause states, “the accused shall enjoy the right… to be confronted with the witnesses against him.” The purpose of this clause is to ensure that one cannot sling
    arrows from the shadows. Fundamental to the Confrontation Clause is the ability to cross examine one’s accuser. As Sir Walter Raleigh said, “[L]et my accuser come face to face, and
    be deposed.” Professor Nesson makes a compelling argument that the Clause was never meant to create broad rules governing all forms of testimony. He argues that the confrontation Clause’s protections should only come into play for accusatory statements. Let’s explore the relative merits of the “statements by an accuser” versus “testimonial statements” approaches.

    As Crawford and its progeny illustrate, the Supreme Court’s distinction between “testimonial” and “non-testimonial” statements is an unworkable rule. Crawford requires the exclusion of a testimonial statement if it cannot be cross-examined, but the Court did not define “testimonial.” However, it follows that there must be some spectrum for classifying statements, ranging from testimonial to non-testimonial. Clearly on the testimonial end of the spectrum are statements like the one in Melendez-Diaz, where a forensic lab technician submitted findings in an affidavit. What constitutes a non-testimonial statement is unclear, as Williams illustrates. If the other end to this spectrum is unclear, the fear that every single analyst could be required to testify seems well justified. That there are multiple “testimonial” spectra in different strands of case law makes the doctrine even more unworkable. In the context of statements made to the police, for example, the Court has struggled to craft meaningful distinctions that do not require fact intensive inquiries in each case (see Michigan v. Bryant).

    So does Professor Nesson’s distinction between accuser and non-accuser create a better system? To begin, what is an accusation? One idea is that an accusation occurs when an individual takes external stimuli and mentally processes it to reach a conclusion about the accused’s relation to the offense. Under this working definition, a lab technician who analyzes a DNA sample’s characteristics is probably not an accuser, since he makes no mental inference about the accused or his relation to the DNA. But then who is an accuser? There may be any number. Perhaps a police officer who alleges the DNA collected belongs to the accused is an accuser? Maybe. Surely the expert who confirmed the DNA match of the accused and the victim is an accuser.

    Where individual experts’ statements come together to form myriad accusations, but few statements seem clearly accusatory, the Confrontation Clause’s purposes may be frustrated. The sum of the whole trial system is larger than the bits and pieces along the way to an accusation at trial. By breaking the Confrontation Clause’s protection down in this way, into a series of questions about whether any given individual has made an accusatory statement, we risk denying the accused the opportunity to confront her accuser, which may well be a dispersed web of expert testimony rather than a singular entity (an “Accuser Lord,” as Professor Nesson might say). The inability to confront the Accuser Lord may diminish public confidence in the trial system. The challenges of applying both the “testimonial” and “accuser” approaches illustrate the difficulties inherent in using bright-line rules to determine Confrontation Clause violations. Perhaps a return to the pre-Crawford era is prudent.

  • – 1 Promoted Comment

    ~Of Conflict, Juries, and the Science Lord~

    As Professor Nesson points out, the Confrontation Clause concerns “witnesses against”—that is, accusers of—the Defendant. Students 60886, 61306, and 57609 (supra) propose a formulation of “accuser” as one who “knows or has reason to know that her testimonial statement is inculpatory.” In accordance with their theory, the technician in Bullcoming knows that a result of BAC above legal limit will be inculpatory, just as the technician in Melendez-Diaz knows that a result of the presence of cocaine will be inculpatory. However, when a technician prepares a “single unmatched DNA profile,” she “does not know whether that profile will be inculpatory or exculpatory.” This is an interesting idea because as Professor Nesson writes, “The rhetorical dynamic of confrontation calls for the jury to see the moment of conflict between the accused and his accuser.”

    Where is the moment of conflict between Cellmark and Williams? Is there even a moment of conflict? Clearly, there is cognitive violence—a conflict!—between the lab results in Bullcoming and Melendez-Diaz and a verdict of innocence. But Williams differs. Williams has no conflict with Cellmark—the lab’s bare DNA results are meaningless to Williams—until and only until Lambatos testifies about the matching.

    The conflict crystallizes in the testimony and body of Lambatos.

    There really is no conflict between Cellmark and Williams; it is between Lambatos and Williams. Although Lambatos relies on Cellmark, Cellmark has no stake in the game.

    The undercurrent in much of the discussion is the struggle between the Science Lord and the Law Lord. The elephant in the room is composed of twelve members of our peers. Does the jury understand that Lambatos did not perform the laboratory tests herself? During oral arguments, Illinois emphasizes that Lambatos openly admits this. This should be enough for a jury to realize that the accuracy of the DNA analysis performed at Cellmark has not been defended (beyond Cellmark’s accreditation).

    However, your students are uneasy. Student 60977 writes that the “DNA record-matching is unchallengeable, a dues-ex-machina.” Students 54843 and 59421 bemoan that DNA evidence is a “modern equivalent of an all-knowing ghost.”

    But they are too quick to assume that all juries will take DNA evidence as the word of God. In reality, I see no reason why juries would have trouble understanding that while Lambatos found that the result from Cellmark matched the other sample, that she did not independently verify the result from Cellmark. As Students 49562, 49617, 50765, and 60584 point out, the elements underlying expert testimony can be questioned. As a matter of fact, Lambatos was admittedly very thoroughly cross-examined in Williams.

    So Students 60977, 54843 and 59421 might be wrong to believe that DNA evidence is unchallengeable without Cellmark’s presence. And even if they are correct—that the DNA Science Lord is so powerful that it will overwhelm the juries’ senses—it is unclear how Cellmark’s presence will help the jury overcome the power of the Science Lord.

    Nesson’s HLS Evidence Class, Student 59696

    • Lawlord In Training – 1 Promoted Comment

      Of course Ms. Lambatos took Cellmark’s report for the truth of the matter it asserted. As so many others have pointed out, to believe that she didn’t would render her testimony meaningless.

      The question is: how far will the justices want to go in dismantling the fictions that make evidence law (more or less) workable and (at least nominally) coherent?

      A holding for Williams could initiate the demise of Rule 703 in its current form. Justice Breyer made this point, when he asked–how far do we reach here? Do we reach the knowledge in textbooks? Do we reach business records? How could litigation function without these exceptions to the hearsay rule, and hence to the confrontation clause?

      What are the consequences if we dismantle this fiction–the fiction that knowledge can rationally be compartmentalized, that we’re truly capable of putting this bundle of information in the “opinion” category and that other bundle of information in the “truth” category? (Clearly, I disagree with Student 59696′s assumption that truth can be so easily distinguished from opinion, especially when one’s opinion means nothing if one does not assume the truth of the statement upon which it is based.) Once we unravel this fiction, what other fictions are next in line?

      How about jury instructions? These are, again, a fiction, necessary to keep the dispute resolution system running smoothly. For if we truly believed that jury instructions worked, we wouldn’t have excluded the jury from hearings on the admissibility of confessions. We admitted to the illogic of jury instructions when we said: “no, this won’t work when the issue is too important.” Heck, here, we don’t even know if the district court judge followed them properly.

      I predict a narrow, technical holding against Williams. (Or, alternatively, I predict what might be functionally the same–not to Williams, but to evidence law: a narrow, technical holding for him.) In either case, I doubt the rules of evidence will be ruffled much.

      Thank you, all, for an engaging discussion.

      ~Nesson Evidence student # 54855

      • Max Little – 1 Promoted Comment

        An engaging discussion, indeed. The deputy solicitor said it best in my opinion. Simply because the prosecution presents a weak case does not implicate the confrontation clause. The Sixth amendment issue here is the right to (effective)counsel.

        Doesn’t the defense benefit from the Williams scenario? An effective attorney will get the Cellmark records and find out what they did (or didn’t do). S/he’ll bone up on the science enough to identify weak links in the profiling process. S/he’ll be prepared to take the Cellmark analyst through every painstaking step and point out what might have gone wrong.

        What’s the Cellmark person going to do on the stand? They’re going to defend their work. It’s highly unlikely that any errors will be exposed on the witness stand. If such mistakes did occur, counsel needs to ferret them out before trial.

        Let’s say some mistakes were made. Defense counsel can introduce them through the “Lambatos” expert, correct? After all, Lambatos is basing her opinion on the Cellmark records. Her opinion is only valid if Cellmark did their work properly. She has to admit that. If Lambatos agrees that mistakes were made, her opinion is compromised. Moreover, nobody from Cellmark will be there to defend or explain their work. A missing witness instruction may very well be appropriate. The prosecutor is going to look like s/he’s hiding something. Juries don’t like that.

        On the other hand, let’s say diligent pre-trial investigation discloses no errors on Cellmark’s part. Lambatos can still be cross-examined on every minute detail of the Cellmark profile’s provenance. The only thing she can say is, “I don’t know…I think so…they’re an accredited lab, y’know…” What could she say when asked if even “accredited labs” make mistakes? And every time she’s asked if her opinion would change if Cellmark did something wrong, what could she say?”

        If the defense investigation shows no mistakes occured at Cellmark, it’s better for the defense if they don’t show up. They at least can argue that the prosecution’s case does not meet the burdenof proof. If the defense investigation does raise red flags, they can be exploited through Lambatos and the prosecutor looks like a jerk. In either case, counsel probably has a better chance of establishing reasonable doubt if Cellmark is not in the courtroom.

  • – 1 Promoted Comment

    Williams raises serious problems for the integrity of the justice-space. Who are the players in the game? As the justices’ haphazard alternation between referring to Cellmark and Cellmark’s technician as providing a DNA profile suggests, there is an under-explored ambiguity in who provided testimony against Williams. I refer to this problem as “testimonial opacity”. The problem begins when we try to distinguish Cellmark and its technician. Supposing the Cellmark DNA profile Lambatos used as a basis for her opinion constitutes testimony against Williams, would it be sufficient to compel only the Cellmark technician to testify to the process used to produce the profile? Would the technician testify solely in his capacity as a qualified scientist, as Cellmark’s institutional actor, as Cellmark’s representative? These questions force us to re-examine what the Cellmark DNA profile represents: it represents a scientific translation performed by a technician; but it also bears Cellmark’s institutional approval, a mark of supposed legitimacy that augments whatever testimony the technician offers.

    Who can the defense cross-examine to account for all of the components of the Cellmark testimony? Justice Kennedy asked: “[W]ould this case have been a stronger or a weaker case if a representative, and employee of Cellmark had come and said although I didn’t do this sample, I want to tell you how our procedures worked and why we are a respectable lab . . . ?” Whether or not Justice Kennedy intended to, he touched on the crux of the problem. Whereas one Cellmark employee may be able to comment on the process that actually occurred, others may be the only ones who can comment on the reliability of the equipment Cellmark uses, the rationales Cellmark uses for conducting analyses in a specific way, Cellmark’s code of conduct, etc. This gets to the multiple witnesses/impracticability problem several justices addressed, through another avenue. Even if the lab employs only one technician, that technician may only be able to answer for a fraction of the “testimony” that the jury hears against the accused. According to Crawford, testimony is “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Under Crawford’s definition, it is quite plausible that admitting the content of the Cellmark report requires giving the defense the opportunity to cross-examine several witnesses to account for the different forms of testimony the Cellmark report contains.

    Embedded in this problem of testimonial opacity is the problem of articulating a workable means for identifying the range of witnesses against the defendant. When an institution gives testimony, who are all of the necessary witnesses? Any definition requires the justices to consider the risk of admitting testimony that violates defendants’ Sixth Amendment rights against the institutional strain of requiring an overwhelming number of people to testify. (Cf. Oral Arg. pp. 12-14).

    Lest this appear to be a problem only in the case that the court decides to reverse the Illinois Supreme Court, consider Lambatos’ role within the police force. The same institutional concerns arise when only state actors offer testimony. This casts light on a shortcomings of Melendez-Diaz and Bullcoming.

    Nesson’s HLS Evidence Class, Student 49879

  • – 1 Promoted Comment

    Nesson students: 57743, 55219, 50496, 55697, 49786, 49512, 49674, 50929, 45174

    The Confrontation Clause reserves the right of the accused “to be confronted with the witnesses against him.” As Amartya Sen suggested, the Clause should be understood in light of the motivation behind its initial inclusion: to ensure that our legal system promulgates verdicts perceived as legitimate by “we the people,” thereby protecting equality and, in turn, preventing social unrest (the former motivation driving the Framers in their role as “the people,” the latter in their role as Law Lords). To that end, the Clause must ensure the knowledge-space of the jury conforms to societal notions about what is required for acceptable convictions. Since convictions are society’s greatest deprivation of liberty, the law-machine must ensure that they are supported by statements made with heightened awareness of their critical role in the truth-seeking process.

    A strict text- or Framers’-intent-based originalism is unsuitable; it only contemplates the nature of trials as they existed in 1789. A large number of criminal convictions no longer hinge on the veracity of a traditional accuser’s in-court statement but instead on a myriad of scientific tools including DNA evidence, expert witnesses, empirical data. The role of witnesses has expanded to include these sources of information, making it increasingly difficult to identify who is testifying as a “witness against” and who is simply contributing relevant facts to the knowledge-space.

    Thus, we shouldn’t rigidly adhere to a text- or intent-focused originalism at the expense of a “more nuanced, less rigid approach” to criminal procedure (see Professor Metzger’s comment). Instead, the Confrontation Clause should be read with a more “social vision of constitutional appropriateness” (Sen) that accounts for the evolving functional meaning of “witnesses against.” This objective cannot be divorced from the practical realities of our system. The more administratively difficult the system of evidence we construct, the less likely it is to be utilized in a manner that fulfills the motivation behind the Clause: allowing juries to witness the clash between accuser and accused.

    Williams illuminates the problems of this stricter approach. Rigidly applied, the Confrontation Clause might require the presence of every individual involved in collecting data used against Williams. In addition to being impractical, such a stringent requirement would serve little impeachment purpose. (See Richard Lempert’s discussion.) A strict Crawford approach to the Clause properly accounts for neither the administrative burdens nor the relatively small protections afforded by embracing this interpretation. “We the People” value juries’ full access to evidence we deem essential to dispute resolution. By requiring the state to incur the cost of jumping through several intermediary hoops in order to make such evidence available, we risk preventing the jury from properly evaluating an essential component of the story. For the law-machine to function smoothly and generate acceptable — and probable — verdicts, the Law Lord’s interest in unimpeachable outcomes must be weighed against the jury’s interest in uncovering objective truth and must not be submitted to a strict rule. For this reason, the dialogue surrounding such evidence must play out in full before the jury.

    - Nesson Students: 57743, 55219, 50496, 55697, 49786, 49512, 49674, 50929, 45174

  • – 1 Promoted Comment

    If past precedent is worthy of the name, then it is quite likely that the Supreme Court will rule for Williams in Williams v. Illinois.

    First, under the definition of testimonial announced Crawford v. Washington (2004) – statements “made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial” – the Cellmark report undoubtedly contained statements that were testimonial in nature.

    Second, the substance of those testimonial statements was conveyed to the trier of fact. Even though the report itself was never formally admitted, the testimony of the prosecution’s in-court DNA expert effectively communicated its substantive conclusion, namely, that Cellmark extracted a male DNA profile from vaginal swabs taken from the victim.

    Finally, the report was presented for the truth asserted therein. To be sure, the prosecution claimed the report only formed the basis of its DNA expert’s testimony, but this is a distinction without a difference. The Cellmark report could not have “supported” the DNA expert’s testimony unless its substantive content was presented as true – if the profile compiled by Cellmark was flawed, there would be no basis for the expert’s subsequent opinion that the swabs from the victim matched Williams’ profile.

    Resolving Williams along these lines – as Richard Friedman and others have advocated –would certainly maintain the internal consistency of the Court’s post-Crawford decisions. In spite of this – maybe even because of this – such a result would be normatively undesirable for it would continue to obscure the true meaning of the Confrontation Clause. Starting with Crawford, the main thrust of the Court’s Confrontation Clause inquiry has been whether or not a particular statement qualifies as “testimonial.” But as Charles Nesson has suggested, a proper analysis of the conditions under which the Clause is triggered must not only look to the nature of the statement at issue, but also to the identity of the declarant who made the statement. The Clause does not prohibit the inclusion of testimonial statements made by all witnesses; rather, it prohibits the inclusion of testimonial statements made by “witnesses against” the defendant. Crawford sidestepped the plain language of the 6th Amendment, and in so doing, committed future courts to the unenviable task of constructing an increasingly elaborate definition of “testimonial. See, e.g., Davis v. Washington (2006); Michigan v. Bryant (2011).

    Is it possible to refocus the Confrontation Clause inquiry to address the relationship between the witness and the defendant (i.e. whether the former stands as the latter’s accuser – a “witness against” – or whether he stands merely as a “witness”) without completely abandoning Crawford and its progeny? One possible solution lies in narrowing the definition of “testimonial” to reflect the accusatory intentions of the declarant. We need not stray far to find such a definition. In Bryant the Court defined “testimonial” as statements procured for the “primary purpose of creating an out-of-court substitute for trial testimony.” This is much more restrictive than the definition advance in Crawford, which required only a reasonable belief that a statement “would be available” for use a later trial. By defining as testimonial only those statements the declarant intends to serve as the functional equivalent of the in-court accusation, the overinclusive nature of the Court’s current approach to the Confrontation Clause could be significantly reduced.

  • – 1 Promoted Comment

    Nesson Students: 62453, 50789,49408,55005, 55806

    The Confrontation Clause offers a principle integral to the courtroom drama in the form of a procedural right necessary to control tyranny: the right to face one’s accuser. For decades the spirit of this clause was denied its true meaning. In the first half of Crawford, Justice Scalia refocused confrontation clause analysis on the specific evils the Founders sought to prevent. This emerging clarity, however, was subsequently muddled by Justice Scalia’s textualist focus on the term “witness.” To restore its original life into this indispensable clause there must be a nuanced concept of the “accuser.”

    The right of confrontation has always been seen as necessary to prevent false testimony. As far back as Cicero’s time (106-43 B.C.E), however, a defendant had the right to face his accuser in court while witnesses were not required to be present. Cynics will rightly point to the difficulty in defining “accuser.” But this line is no more arbitrary than one drawn along the lines of what is “testimonial” and has the added benefit of honoring the historical spirit behind the right.

    To define accuser, attention should be paid to witnesses whose testimony is prone to subjective bias. In applying the confrontation right, some English courts drew a distinction between specific testimony and general testimony: “The coroner is to inquire into the cause and circumstances of the death of the deceased: the justices are to inquire to what parish the pauper belongs: both inquiries are general, and no particular persons are parties to them.” In Williams, the technician speaks only to DNA evidence – to the alleles found in the sample given, and the process used to find them. The technician’s testimony is not directed specifically against the accused, it is given instead as a generally applicable recount of a limited technical procedure.

    As Lord Kenyon wrote in 1790, “[Evidence rules] are not rules depending on technical refinements, but upon good sense in which they are founded.” In the United States, the Confrontation Clause emerged as a response to ex parte testimony unjustly used against people in treason trials. The Founders contemplated this type of accusatory testimony when they drafted the Confrontation Clause to apply to “witnesses against.” Colonial judges continued this preoccupation with witnesses whose relationship to the accused supplied motive to lie. The evil was untested subjective bias of the accuser. The preferred weapon against it was confrontation. As Justice Scalia wrote in Coy, a witness “may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts.”

    A technician’s distortion or mistake with regard to lab results can be tested by applying the Federal Rules of Evidence or through the introduction of circumstantial evidence. By these means “tyranny by mistake” will be kept at bay. Tyranny by subjective bias, however, must continue to be combated through the right of confrontation. “We the people” and the spirit of the 6th Amendment deserve nothing less.

  • – 1 Promoted Comment

    Crawford’s interpretation of the Confrontation Clause as prohibiting the use of testimonial hearsay appears to mandate a ruling in favor of the petitioner in this case. In light of Bullcoming and Melendez, Cellmark’s DNA report would seem to constitute a testimonial statement. The prosecution’s expert witness, Lambatos, related the material content of that statement at trial, when she described the results of her comparison of the Cellmark report with the petitioner’s DNA profile. The report was clearly offered for its truth, because the expert witness’s testimony would have lost all probative value had Cellmark’s DNA analysis been inaccurate. Thus, under the Crawford framework, it would appear that testimonial hearsay was improperly admitted into trial against the petitioner, in violation of his rights under the Confrontation Clause.

    However, Justice Breyer suggests an exception that would rule for the state and uphold the Crawford framework, by recognizing a presumption applicable to third-party DNA labs would allow the Court to rule for the State. The fact-finder may presume, based on evidence of the state lab’s shipping manifest and the accreditation of the laboratory, that a DNA profile created by that laboratory was derived from the sample. Hence, to accept Lambatos’ testimony, the fact-finder need not have accepted for their truth any statements by Cellmark, purportedly introduced via Lambatos, that the profile Cellmark sent corresponded to the sample it received. Williams did nothing to rebut the presumption. Since we assume that the judge followed the law, and did not consider for their truth Cellmark’s statements about the correspondence, there is no Confrontation issue.

    Nonetheless, the existing Crawford framework is flawed. To implement an ad hoc exception in this case would be, in essence, to return to the case-by-case analysis required by the indicia of reliability test that was rejected in Crawford. Alternatively, the ramifications of a ruling for the defendant would be substantial. An increasing number of technical experts would have to appear in court, and, as Breyer notes, the burden of using DNA evidence may become so great that prosecutors would hesitate to use it. From the perspective of the Law Lord, to preclude one of the most reliable forms of evidence and to thereby return to unreliable oral testimony would constitute a direct attack on the purported search for truth at trial.

    By focusing on the “testimonial” character of statements, the Crawford framework is at once overly narrow and overly broad. It excludes damning statements of accusation that are deemed “non-testimonial” (such as the 911 call in Davis), and does not subject them to the “crucible of Confrontation.” But it also encompasses statements that, by themselves, do not inculpate the defendant, and are made by individuals with no ability to affirmatively identify or indict the accused. A statement that “this is DNA” does not require and should not receive the same constitutional protection as the statement “this is the defendant’s DNA.”

    Replacing/refining the testimonial distinction developed in Crawford, an accusatory framework would more precisely define when Confrontation is required, and would do so in a way that aligns with the Confrontation Clause’s founding purpose. This framework identifies when the basis of an expert’s testimony is itself an accusation and requires cross-examination: when the out-of-court declarant’s evidence, by itself, is sufficient to establish the guilt of a defendant, the evidence is an “accusation.” In Bullcoming, the outcome of the blood alcohol test itself established the guilt of the defendant and thus was an accusation that required the analyst who made the test to appear in court and testify to its authenticity. Likewise, in Melendez, the outcome of the chemical analysis that revealed the tested substance to be cocaine was alone sufficient to determine guilt and required “confrontation.”

    This framework is also consistent with the moral weight behind the Raleigh story – a story that even Crawford recognized as central to the Sixth Amendment’s introduction in 1791. “Witnesses against” the accused—such as the witnesses in Bullcoming and Melendez— had the opportunity to incorporate a personal opinion about the accused into their work product and thus into the statement at issue. As a result, their statements must be subject to the attempt of the accused to test the four testimonial capacities— most importantly, whether the fact-finder should have reason to doubt the witness’s objectivity, and thus, truthfulness. In Williams, there is no “Raleigh injustice” because the Cellmark employees had no personal opinions about the defendant with which to influence their ultimate statement. Their final analysis meant nothing without the match made by the prosecution. Their final analysis did not require the Confrontation Clause to protect the defendant.

    HLS Students 49841, 66774, 66783, 66815, 55347, 60501

  • – 0 Promoted Comments

    Very briefly, I don’t think using “witnesses against” to define the scope of the Confrontation Clause is helpful. I don’t think “witnesses against” can be limited to “witnesses with the subjective intent to accuse” or “witnesses who know their statements are inculpatory.” I think a fair interpretation of “witness against” would ultimately lead to the testimonial rule already in place.

    From the defendant’s perspective (the most important perspective), a “witness against” is anyone who makes a statement in anticipation of a criminal prosecution, and whose statement is later incorporated into the State’s case. What does it matter if the witness’s subjective intent is not to accuse him? If the State is using what she said in an effort to convict him, then she has served as a “witness against.” For the defendant’s purposes, any building block of the State’s case operates against his interests.

    Accordingly, the Cellmark DNA analysts are “witnesses against.” They have also made testimonial statements relied on for the truth of the matter asserted. Whichever way you choose to look at it, they need to appear in court.

  • Nesson's Law Lords in Training #59536 & #60795 – 1 Promoted Comment

    Nesson’s Law Lords in Training: 59536 & 60795

    In order to secure the legitimate truth-producing functions of criminal trials, as perceived by “We the People” who signed the Declaration of Independence in 1776, claimant’s assertion that failure to produce a lab-technician from Cellmark constituted a a violation of the confrontation clause must fail.

    The Confrontation Clause, establishing that defendants have the right to face their accusers in Court was adopted to secure fair trials, in part, responding to the injustice of Sir Walter Raleigh’s conviction, based on an out-of-court statement by Lord Cobham. In Crawford, the Court was wise to abandon the unusable Ohio v. Roberts Test of reliability. However, after correctly realizing that the Confrontation Clause must be interpreted with Sir Walter Raleigh in mind, the Court shifted to a test of testimonial-vs-nontestimonial. This test is both irrelevant to the Confrontation Clause and unworkable (demonstrated by Bryant v. Michigan).

    Requiring a Cellmark lab-technician to be present in Court for purposes of cross-examination to avoid violation of the Confrontation Clause is nonsensical and destroys the truth-telling functions of the trial. As already suggested, and contrary to Professor Friedman’s beliefs, the Confrontation Clause only addresses “witnesses against” defendants, that is accusers. Yet, the lab-technician at Cellmark was not an accuser, and had no relation to the defendant or the victim. Relying on the lab-technician’s test is not a question of constitutional significance, but only one of the Federal Rules of Evidence. And, according to FRE 703, experts may rely on hearsay evidence without admitting such evidence. Whether or not this detracts from the influence of the respective expert’s testimony is ultimately for the jury to decide. We undermine the intelligence of the jury by asserting that they are not able to understand the difference between the expert utilizing the lab results to form an opinion and the expert attempting to establish the truth of those underlying facts. As mentioned by Mr. Debreen in oral arguments, juries are frequently confronted with far more convoluted and potentially disruptive instructions. Additionally, the practical burden placed on the labs that perform these test cannot be underestimated.

    To require every lab-technician who performs a test to serve as a witness in Court in order to satisfy the Confrontation Clause would prove truly destructive to the truth-telling functions of the Court. For, if such were the case, every time an expert relied on a test, every technician who worked on that test would be required to be present in Court – if 5 technicians worked on each of 20 tests, upon which one expert relied upon, 100 technicians would be required to constitutionally convict a defendant. Moreover, as indicated by the oral arguments, it is quite conceivable that as many as a dozen technicians work on one analysis of DNA — and for purposes of the Confrontation clause if it is determined that one of the analysts is required to be present as defendant’s accuser, it surely does not make sense to exclude all-other technicians, for, each would constitute an accuser (as Justice Alito suggests).

    As science has progressed, Judges made a decision to allow reliable DNA and other scientific evidence to be presented in the Courtroom, as well as to allow expert witnesses to depend on that information. If the Supreme Court were to rule in favor of Williams, for all practical purposes, the Court would risk excluding expert-testimony of this nature from future litigation. For, any evidence relied upon by an expert, otherwise admissible under FRE 703 would be forced to address the harsh standard of the Confrontation Clause — and authors or reports relied upon by expert testimony used to convict defendants would be required to appear in Court in order for the testimony to be permissible. Increasing the number of witnesses by such a degree, discussing intricate scientific tests, which jurors are likely to lack understanding of, will only harm the truth-telling and dispute-resolution functions of the trial.

    If the Court feels the need to rule in favor of Williams, the Court should still abandon the Crawford-test, and merely impose the practical solution of mandating that a representative from each lab come forward to establish the credibility of their respective facility. Although Lambatos did not perform the actual tests at Cellmark, she is intimately familiar with their procedures and can vouch for their credibility at least to some extent. Perhaps she would be able to fill this role in this respective trial, but if such a policy was instituted it would be more typical for a representative from the respective laboratory to come forward. This would help substantiate smaller and less established producers of data while attempting to not place unfair or unsustainable burden on larger and more established laboratories, where the results could be perverse along the lines of bringing in 80 or 100 employees if multiple tests were performed for the case. The individuals from these laboratories should not be required to discuss the specific test performed for the given case, but rather they could be encouraged to delineate general safety procedures and employee qualifications within the facility. While a one representative per lab policy could be a viable alternative, this is not currently required, and as a result if we find for Williams in the matter at hand we support perverse results which will drain resources from the courts and discourage the use of valuable DNA evidence and testing.

  • – 1 Promoted Comment

    This case has no easy answers.

    The Supreme Court faces a delicate, Jenga-like balancing act. In Jenga, players take turns to remove an individual block from a tower and balance it on top, creating a taller and increasingly-unstable structure as the game progresses. Similarly, the Court seeks to resolve each individual case, adding it to an ever-growing tower of legal and constitutional precedents. The difficulty lies in facilitating acceptable outcomes in individual cases while avoiding tortured interpretations that make the legal tower unstable (and future cases harder to resolve). This is the Williams Court’s dilemma: to resolve Williams in an acceptable manner while preserving constitutional values.

    There is a constitutional value at stake. Looking at current post-Crawford jurisprudence, the Cellmark reports were arguably ‘testimonial.’ Sandy Williams, the accused, contends that he should have been given the right to confront the Cellmark analyst who generated a DNA profile from vaginal swabs from the crime scene. It’s also worth noting that Cellmark has an imperfect track record: in 2004, an employee overrode procedures designed to ensure the tests’ accuracy, although she did not alter their outcome. Under the Confrontation Clause, the accused has a right to confront the ‘witnesses against’ him. To confront his Cobham.

    But Cellmark is no Cobham, and Sandy Williams is no Walter Raleigh. The Cellmark DNA sample matched Williams to a probability of 1 in 8.7 quadrillion. Given that Cellmark had no other samples of Williams’ DNA to serve as a possible contaminant, the DNA match was found in spite of — not because of — any contamination, incompetence, or lab errors by Cellmark. Furthermore, the victim identified Williams out of a lineup containing foils (decoys) of similar height, build, and complexion. The most plausible (and acceptable) narrative is that Sandy Williams did rape L.J.

    While the Court plays Jenga, the defendant plays chess: Having lost all his pieces, Williams, facing evidentiary checkmate, can only hope for a constitutional stalemate.
    +
    How should the Court resolve this case? Three professors, three paths. The first path is Charles Nesson’s approach: overrule some of the post-Crawford ‘testimonial’ jurisprudence and rebuild the doctrine on a stronger foundation. The second path is Richard Friedman’s approach: reinforce the current testimonial doctrine and overturn Williams’ conviction. A third path is Richard Lempert’s approach: preserve the testimonial framework, but carve out a narrow exception where Cellmark’s hearsay might be considered harmless error.

    Nesson’s and Friedman’s approaches seems most principled. Nesson thinks current doctrine is suboptimal and ought to be revised; Friedman thinks current doctrine is sound and ought to be extended to its logical conclusion. But each has its impracticalities. Nesson’s approach entails overturning Melendez and Bullcoming, a good chunk of post-Crawford jurisprudence. Friedman’s approach would likely overturn a guilty man’s conviction. Lempert’s approach seems to me to be the most pragmatic (and likely): it will ensure that a credible conviction is sustained, while doing as little damage as possible to the current legal structure.

    HLS 61646

  • – 1 Promoted Comment

    Professor Nesson,

    The Supreme Court of Illinois’ decision in Williams should be overturned.

    The U.S. Supreme Court resent Confrontation Clause jurisprudence in Crawford. Writing for the Court, Scalia held that testimonial statements trigger Confrontation Clause protection, requiring the availability of cross-examination, regardless of relevant statutory hearsay exceptions. As Prof. Nesson rightly contends, “testimonial,” with no qualification, is an unworkably broad standard on which to base a strict Confrontation Clause rule. Prof. Nesson argues for a “testimonial statements of the accusers” construction, thus adding the role of the testimony-giver as an equally necessary element for the Confrontation Clause to be triggered. Such an approach is certainly more consistent with the Constitution’s “witness against” formulation.

    Left open as a question after Crawford, the definition of “testimonial” statement has been appreciably narrowed by the Court, first in Davis (Statements are testimonial when . . . the “primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions”), and then in Bryant (Statements are testimonial when obtained for the “primary purpose of creating an out-of-court substitute for trial testimony”). In truth, the Court’s most recent iteration of the “testimonial” definition in Bryant is functionally equivalent to Nesson’s “testimonial statements of accusers.” Under the Bryant standard, it is difficult to envision any scenario in which the individual providing the testimonial statement would not know that the primary purpose for obtaining her statements is to create a substitute for trial testimony. And if the individual knows she is providing a substitute for trial testimony against a defendant, then what else could she be other than a witness against (i.e. an accuser)? Instead of overturning Crawford and its many recent progeny as Prof. Nesson suggests, a solidification of the narrow Bryant standard achieves precisely the more workable framework for Confrontation Clause jurisprudence that Prof. Nesson seeks. Thus, the Court can avoid an unprecedented rejection of stare decisis, even by contemporary standards (see Bowers), and, instead, remain faithful to at least the baseline of Crawford.

    Utilizing the Bryant framework for “testimonial” statements, two questions must be answered in order to reach a decision in Williams. First, is the Cellmark analyst a “witness against” (i.e. an accuser)? Contrary to Prof. Nesson’s position, the answer to this question is yes. The expert, Lambatos, testified that Cellmark prepared the DNA report for the purpose of investigating and eventually prosecuting a crime. Preparing a report, on behalf of government prosecutors, that represents a powerful determinant of potential guilt (regardless of whether it is technically admitted into evidence or described by an “expert”) has to qualify as accusatory under the Confrontation Clause. It does not matter whether the DNA lab analyst prepares a report knowing against who it will be used. It simply matters that they know the report is prepared with the purpose of aiding an investigation and prosecution. To be sure, preparing a report that essentially says “this is the DNA of someone who likely raped someone else” is accusatory in nature. Thus, the Cellmark analyst is a witness against Williams.

    Second, Crawford recognized that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” The government argues that the report in question was not introduced to prove the truth of the matter asserted because, unlike in Melendez-Diaz and Bullcoming, this report was not offered into evidence. Functionally, however, the report was most certainly introduced to the jury (see Melendez-Diaz; Bullcoming) to prove the truth of the matter asserted. The expert’s opinion was wholly informed by the report. Any probative value to the expert’s opinion is dependent on a presumption that the DNA report defining that opinion was true. The notion that jurors will not treat an expert whose opinion testimony is developed solely on the basis of a DNA report as essentially being a conduit for the report’s testimonial statements is a fiction created by the Law Lord to protect FRE 703. As Prof. Nesson puts it, our legal system has a terrible time digesting scientific evidence. Indeed, without the report being admitted into evidence, the jury is consequently beholden to an expert’s take on a topic that is surely difficult to decipher for those unfamiliar with DNA science (i.e. most jurors and judges), thus exacerbating a Confrontation Clause problem.

    Williams has the right to try to impeach the person who conducted the analysis that produced the Cellmark report. The report, even if it remains in the shadows of the knowledge space created for the jury by the court because it is not technically admitted into evidence, is functionally what stands between the defendant and his liberty. This is the ultimate out of court statement offered for the truth asserted – precisely what the Framers intended the Confrontation Clause to protect against. To be sure, cost and efficiency concerns regarding the precedent that would be set by this ruling in Williams (i.e. opening the floodgates for new witness requirements regarding forensic report analysts) is a genuine practical concern. But a fearing the cost of too much justice cannot deter our Constitution from fulfilling its promises.

    HLS Student #60184

  • – 1 Promoted Comment

    The Williams case brings up issues of what role evidence serves, the idea of originalism, which is problematic in its own right, and do we value expediency and cost saving measures at the expense of a Defendant. To start, the Cellmark report was testimonial in every sense that it has been defined or alluded to. (It was made at the behest of the police department and I don’t think police often ask for things that won’t aid in prosecution, made as substitute for trial testimony, etc…,). I think it important as we look at the 6th Amendment, we see in this case that the witness against the Defendant is actually the Cellmark report. Since you can’t talk to, engage in discussion with, or ‘confront’ a piece of paper in the abstract there must be an individual there that can attest to the accuracy, and methods used to arrive at result.

    Taking a step back, if the report wasn’t introduced for the truth of the matter asserted, then the report actually serves no purpose. By allowing the witness to testify and base her conclusions on the Cellmark report the court is implicitly stating the defense has stipulated to this information. The reasoning is very similar to the idea of building a house on shaky foundation, it the foundation isn’t stable (Cellmark report), the house will eventually fall down (expert’s testimony has no relevance or credibility). The idea that the expert’s analysis was independent of the Cellmark report is another ridiculous idea, because without the report she would have only have one piece of the puzzle that wouldn’t add any value, or even be relevant.

    Taking this idea further, hopefully prohibited by other rules or ethics, giving a fabricated report to a expert witness to draw conclusions from would leave the Defendant no way to questioning the accuracy of the report. We spent a good deal of time taking about relevance in class, and if you don’t’ assume that the report is factually accurate then the report wouldn’t be relevant at all. Even though experts can base their opinions on things that wouldn’t be admissible, it seems that the information would atleast have to be relevant (FRE703)– if its not true then its not relevant. This could even raise issues of expert testimony using the Dauberert test. Confrontation Clause wise this is a problem, relevancy and hearsay wise this is a problem as well. It’s a relevancy problem because it wasn’t a population sample, or a study widely peer reviewed, it was 1 test specific to 1 DNA strand. Defendant should be able to question, probe, and delve into the accuracy of the underlying reports.

    Concerns raised in oral arguments and the postings, seemed worried about having to call multiple witness (all the people involved in generating the report) when the report is used at trial. There is already a feeling that experts speak with certainty that they might not actually possess, and by not allowing the report to be questioned, that only bolsters that appearance of superior knowledge and correctness. This brings up the bigger issue of what do we think the confrontation clause does, and how much do we really value the ability of the Defendant to actually confront those who accuse him. I submit, if you were a Defendant and a report wasn’t being introduced for its truth, but rather an expert based her analysis on it, that pointed you out as the guilty party, you would like to be able to delve into the details of how that report was generated.

    The old Robert’s test of reliability, and the newer originalism testimonial approach both miss the mark on what the Confrontation Clause is trying to do. It is intended to be a Defendant’s rule that works to ensure that Defendant doesn’t end up like Raleigh. Continually expanding hearsay in all forms worsens this problem.

  • Albert Locher – 3 Promoted Comments

    In a different website, the actual report from Cellmark in the Williams case has been posted. The report was not a part of the record on appeal, but the petitioner here lodged it in SCOTUS, with the court’s permission. Based on comments made in this blog and in some other online comments as to the impact of that report itself, here are my observations on some of the points raised

    1. Data Base Search: The fact that Illinois State Police (ISP) analyst Lambatos used the Cellmark allele chart for the initial database search for a match is irrelevant. This process identifies a suspect. After that, the analyst does further work, examining the original data from both the known suspect sample and the rape kit. The analysis and opinion which comes from this new examination (prompted by the database hit) is the evidence presented in court; any mention of the database hit is superfluous. (Joint Appendix 55-56) The same thing happens with automated database fingerprint matches, and other investigative procedures that point to a suspect.

    2. Mixed Sample Interpretation: The Cellmark report shows that the rape sample was a “mixed sample” – that is, even after differential extraction procedures, there were alleles of the victim found in the sample (which sometimes happens), so the victim’s alleles, as derived from the analysis of her reference sample, were subtracted from the overall results from the rape sample analysis to deduce the male portion. In the Cellmark materials Lambatos used, the victim’s profile was only represented by a table, not by the victim’s electropherogram (which was the basis for the table). One should note there will be little if any individual interpretation necessary when deducing the victim’s DNA from analysis of the reference sample of her blood (which had no mixture of DNA from other sources). For that reason, it hardly seems a tipping point of Constitutional dimension that Cellmark failed to send the Illinois State Police (ISP) the victim’s blood sample electropherogram as an enclosure with its report. If the court finds that indeed was necessary, then simply including the victim’s electropherogram with the report would solve that problem.

    3. Identity of the Sample: Many have stated the electropherogram is not simply machine produced data, because the machine still needed human input, “at least to identify the sample tested.” True enough. But that is true of not only the processing done at the phase which produces the electropherogram. The opening of the rape package at Cellmark occurred several steps before the electropherogram step. The swab was screened, and a cutting was taken; the cutting was subject to chemical DNA extraction procedures; the extracted DNA went through PCR amplification; the amplified DNA was then processed to attach fluorescent markers to the targeted DNA; all before it was fed into the genetic analyzer. In an assembly line process, for each step a different analyst was involved, documenting the work as being done on this particular case. [The appendix to the amicus brief by the Office of the Chief Medical Examiner (another lab that uses assembly-line processing) gives examples of how some of that paperwork appears in their lab, at pp. A1 through A11.] Why is only the last step when “identity of the sample” is entered into the last machine (the genetic analyzer which produces the electropherogram) testimonial, requiring a live witness? Why is not each person who materially processed the sample along way required to testify? Each successive technician relies on the identifying and processing information produced by the predecessor(s), to ensure the proper ID of the sample for the next person who deals with the sample or data. The Illinois Public Defender, in oral argument, seemed anxious to demonstrate that not all analysts/technicians would be required to testify, and both Justices Scalia and Ginsburg seemed to be searching for a way to agree. But if the “identity of the sample” is a point requiring live testimony of a witness who can give direct observation evidence identifying the sample, no one has offered a principled explanation as to why the analyst who put the processed DNA sample into the last machine, the genetic analyzer, must testify, but that the other technicians who materially processed the sample in successive steps along the way need not. In other words, no one on that side of the issue has offerred a convincing rationale that will avoid the “all analysts/technicians must testify” result.

    4. Who must testify: The Cellmark report was signed by Dr. Robin Cotton, Dir. of the Cellmark Forensic Lab, and Dr. Jennifer Reynolds, Dir. of the Cellmark Identity Lab, both as “Reviewer.” Neither of them did any of the lab work, nor handled the samples at any step. Each relied on the work of others at Cellmark. Must the prosecution call Dr. Cotton and/or Dr. Reynolds? Must it also call the analysts A1 and A2 who separately put the both the rape sample and the victim’s blood reference sample into separate genetic analyzer machines? That is at least three Cellmark witnesses. But then don’t we need others to establish that the samples A1 and A2 processed are the samples from this particular ISP case (the “identify of the sample” issue, see above)? At a minimum, that brings us to three or four added witnesses for each for the various steps for both the rape sample and the victim’s reference samples, a total of at least nine (or more) Cellmark witnesses. Certainly, everyone involved in the process (with the possible exception of the FedEx employees who were the shipping intermediaries) knew their work was for a criminal case, and that if it led to identification of a suspect, it would wind up in court.

    5. Circumstantial Evidence: Here, as discussed in oral argument, the circumstantial evidence as to the identity of the sample and the fact that the Cellmark results are relevant to this case include: (a) the testimony of ISP analyst Hapack as to how he packaged and labeled the rape kit items; (b) the testimony of Lambatos as to how ISP rape kits are packaged, labeled, and shipped to Cellmark, with a record on the shipping manifest; (c) the shipping manifest showing the return shipping and return Cellmark of those items, with the report; and (d) the fact that Cellmark is an accredited lab. To these I would add another piece of circumstantial evidence — the fact that the victim L.J. identified Williams in a lineup, and Williams’ DNA matched the DNA from the rape kit. From these, the trier of fact can reasonably draw the inference for the ultimate facts (the definintion of how circumstantial evidence works) that the L.J. rape kit was sent to Cellmark, analyzed in accord with accreditation standards, and it was those results Lambatos relied on in her analysis. This may not be the strongest possible evidence for these ultimate facts, but if such circumstantial evidence is not allowed, you are saying only direct evidence (a witness who personally observed and/or conducted each step) satisfies the Confrontation Clause; circumstantial evidence does not. Nothing in the Confrontation Clause suggests that only direct evidence satisfies the constitutional requirement.

  • Charles Nesson – 4 Promoted Comments

    Confronting Accusers
    - Fern and Charles Nesson

    Justice Scalia was spot-on in Crawford when he conceptualized the constitutional right of confrontation as “a procedural rather than a substantive guarantee.” This is key to understanding the difference between confrontation and hearsay and good reason to overrule Ohio v. Roberts. But Scalia then lost his way by failing to distinguish accusatory from non-accusatory statements. It is focus on the accusatory character of statements, not merely their testimonial character, that responds directly to the real and historically accurate concern of the Confrontation Clause. Raleigh’s problem with Cobham’s statement was not that it was testimonial but that it was accusatory.

    The Confrontation Clause is embedded within our Constitution’s broader mandate for fair public jury trials:

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury … and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

    Justice Scalia in Crawford, describes the concept of confrontation correctly as the “right to confront one’s accusers,” quoting both Stephen, History of the Criminal Law of England (” ‘accusers,’ i.e. the witnesses against him”) and Raleigh’s historic objection: “Call my accuser before my face!” Yet, inexplicably, he ignores the element of accusation in “witnesses against.” He focuses instead on the word, ‘witnesses’, isolating it in quotes: “The text of the Confrontation Clause … applies to ‘witnesses’ against the accused.” Disregarding the word’s context, he then adopts a dictionary meaning for ‘witnesses’ that renders irrelevant the accusatory or non-accusatory nature of the statements in question. By making the testimonial character of statements the measure of the confrontation requirement, he generates the very problem that he purported to scorn: the necessity for constitutional scrutiny of cases that are “far removed from the core concerns of the Clause.”

    The word “witnesses” does not stand alone in the Confrontation Clause. Rather, it is part of the phrase “witnesses against him,” which is itself part of the Sixth Amendment’s list of fundamental rights of an accused. Properly interpreted, a “witness against” the defendant is one who accuses him of committing the crime for which he is charged. An accusation is a statement to that effect.
    The Confrontation Clause should be triggered by accusations of the defendant’s guilt, not by non-accusatory statements, no matter how relevant to the determination of the issues at trial. Accusations carry with them a moral assertion of guilt that contravenes and is contravened by the defendant’s plea of “not guilty.” Requiring cross-examination of the accuser enables the jury as the trier of fact to judge the truth in this clash and assures the public of the fairness of the trial.

    Non-accusatory statements do not carry moral valence. Given the other protections available to the defendant for challenging such evidence, there is no constitutional need for confrontation between the accused and non-accusing witnesses. Interpreting the clause to require confrontations between the accused and non-accusers goes needlessly beyond the clause’s core requirement. A non-accusatory statement itself makes no moral assertion and does not of itself contravene the defendant’s plea of not guilty. Concern for the reliability of such statements is best met, not by constitutionally requiring face-to-face confrontation, but by trial judges administering the rules of evidence.

    The hearsay and opinion rules require the prosecution to establish an adequate foundation for the use of non-accusatory statements. If the foundation is weak, the statements should be excluded by the trial judge. If the trial judge, in the total absence of foundation, should erroneously admit a hearsay statement crucial to the prosecution’s case or allow its use as a basis for expert opinion, due process questions would arise.

    Recognizing the distinction between accusatory and non-accusatory statements dictates the outcome of Williams. To the question Williams presents to the Supreme Court — whether the prosecution violated the Confrontation Clause when it presented the substance of a forensic report through the trial testimony of an expert witness who took no part in the analysis, thus providing the defendant had no opportunity to cross-examine the author of the report — the answer is “No.” The Cellmark report is not an accusatory statement. The Cellmark analysts did not witness the crime nor accuse Williams of it. The prosecution is not required by the Confrontation Clause to produce them.

    The overbreadth of Crawford’s “testimonial” test becomes completely evident if applied to Williams. As a matter of evidence law, adequate foundation for the Cellmark report’s reliability was established by the prosecution. The prosecution established that the matching DNA samples were collected independently at different times and analyzed independently in different laboratories, eliminating any suggestion of malfeasance or collusion among the prosecutor and the labs.

    Even the significant concern about the reliability of the forensic report in Bullcoming should have been left to the law of evidence. A defendant may challenge bias or fraud in a forensic lab even without the Confrontation Clause. He has the right to test the admissibility and reliability of the lab’s evidence by cross-examining the witness through whom it is being offered, challenging its foundation, calling witnesses of his own and testing, by motion for directed verdict and constitutional due process, the sufficiency of the prosecution’s evidence to convict.

    The Confrontation Clause should apply to exclude only accusations. Crawford, Melendez and Bullcoming should be overruled; Williams affirmed.

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