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Today in the Community: December 8, 2011

Today’s discussion returns to Williams v. Illinois, which was argued on Tuesday.  You can read the oral argument transcript here.  We would like to hear your thoughts on what, if anything, stood out in the argument, and how you think the Court is likely to rule on the case.

A selection of our favorite comments from yesterday’s discussion of the proper approach to the Confrontation Clause follow the jump.

Richard Friedman –  

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.

Albert Locher –  

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 –  

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.

Richard Lempert –  

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.

Recommended Citation: Aaron Tang, Today in the Community: December 8, 2011, SCOTUSblog (Dec. 8, 2011, 8:57 AM),