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Today in the Community: December 7, 2011

We continue our discussion of the Confrontation Clause today with a topic that cuts to the heart of the debate: Do you think the Court’s current approach to the Confrontation Clause – that is, its focus on whether a particular statement is “testimonial” under its decision in Crawford v. Washington, as opposed to whether it bears “adequate indicia of reliability” under Ohio v. Roberts – is the correct approach?  Why or why not?  We would be particularly curious to hear your view if you are a law student who has taken or is taking evidence (if your finals studying schedule permits!).

A selection of our favorite comments from yesterday after the jump.

Julie Seaman –  

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 –  

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. 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 –  

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.

Don Bartell –  

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.

Recommended Citation: Aaron Tang, Today in the Community: December 7, 2011, SCOTUSblog (Dec. 7, 2011, 2:01 PM),