This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary.
1. What out-of-court "statements" from a nontestifying declarant were placed before the jury by Lambatos's testimony?
2. Were any such statements "testimonial"? If so, which one(s), and why?
3. Didn't Lambatos (a qualified DNA expert) simply provide her own "independent" opinion -- that the data/DNA profile generated by nontestifying analysts from Cellmark "matched" the defendant's DNA -- without making a direct or indirect reference to any out-of-court "statement" by any nontestifying Cellmark analyst?
And, if that is the case, isn't the reliability (or unreliability) of the Cellmark data/DNA profile that Lambatos relied upon (in forming her "independent" opinion) not a concern of the CC. But, rather, governed only by (1) the state's evidence rules, and (2) the constitutional due process right to a "fair" trial, i.e., the right not be "deprived" of "liberty" (not to be convicted) without due process of law (without a "fair" trial)?
Even if the Cellmark data/DNA profile was patently unreliable, its introduction into evidence (through the testimony of Lambatos, i.e., her reliance upon it in reaching her ultimate opinion regarding a "match") does not, by itself, violate due process, right?
Rather, any such admission would violate due process only if its admission resulted in the denial of a "fair" trial -- an issue that could not be determined pre-trial (like the CC question of whether a statement is testimonial or not). But could only be answered after a conviction in light of all the other evidence of guilt that was properly before the jury.
I can't respond in detail to Paul right now. But three quick points:
(1) I think the Cellmark report was clearly testimonial within the meaning of Melendez-Diaz.
(2) The testimony of Sandra Lambatos conveyed to the jury at least part of the substance of the Cellmark report, sufficiently to invoke the Confrontation Clause.
(3) The Cellmark report could have supported Lambatos's opinion only to the extent its assertions were true.
Agree with Prof Friedman, and the brief for petition for cert makes point 2&3 clear. The key is does Sotomayor think that's allowed given her concurring opinion in Bullcoming.
In my non lawyer point of view, if the prosecution can use expert witness to bypass the confrontation clause in such a way, no one will ever bother calling the person who did the real lab work to stand, it's a 2 in 1 package, and an expert witness tends to sound better anyway.
I am guessing the dissenters could argue that if there is something dodgy about the lab report, the defense could subpena the lab assistant, but again I think that defeats the confrontation clause (which if I recall correctly puts the burden on the prosecution.)
Once again a comment from Paul Vinegrad, who is having intermittent problems posting. I won't respond right away, but I am preparing a post on issues in Williams. End of Friedman, beginning of Vinegrad:
I agree that the prosecution can't do an end run around the CC by introducing testimonial statements through the guise that they are simply "basis evidence" (not introduced to prove the truth of the assertions) that the jury can only consider in deciding upon how much weight to give to the expert's opinion(s).
I don't believe that a court's giving a limiting instruction suffices to resolve the CC violation, because the risk is too great that the jury will, notwithstanding the limiting instruction, consider the testimonial statements for their truth.
However, after reading the testimony of Lambatos and the petition for cert., the opposition, and the reply, I still am unable to isolate precisely what "statement(s)" from a nontestifying Cellmark employee the prosecution allegedly introduced through the testimony of Lambatos. Without identifying any such statement(s) it is impossible to determine which, if any, are testimonial.
Is it Prof. Friedman's position that Lambatos's simple act of relying on the Cellmark data/DNA profile/undisclosed "report" (in forming her opinion that there was a match) somehow impliedly introduced "statements" from the absent Cellmark employee(s) that the data/DNA profile/"report" that Lambatos relied upon was reliable? And therefore the opinion she conveyed to the jury was not "independent" of the implied assertions by absent Cellmark employees that their data/DNA profile/"report" was accurate?
If this is Prof. Friedman's argument, I don't think a majority of the Court will buy it. The M-D dissenters certainly won't. Thomas won't stretch his narrow conception of "witnesses" this far. If her concurrence in Bullcoming is any indication, Sotomayor won't go there.
I think a limiting instruction not to consider the "basis evidence" for its truth will resolve any potential CC issue, if the only "statements" that the defense claims are testimonial depends upon an implied assertion (of reliable data/reliable "basis evidence") argument.
As the Court did pre-Crawford, it will require a more direct and express "statement" before the CC is implicated. The possibility of the jury inferring that "basis evidence" (from nontestifying declarants) is "reliable" simply because the expert assumed it's accuracy in forming her opinion isn't sufficient to trigger a CC bar.
The reliability or unreliability of the "basis evidence" is a Due Process issue subject to adversarial testing without confrontation (i.e., argument by defense counsel that the expert's opinion should be given no weight because the prosecution has failed to establish that the data/DNA profile/undisclosed "report" that she relied upon were accurate or reliable).
Denying the defendant the opportunity to confront the absent Cellmark employees under these circumstances does not violate the CC.
Any possibility that unreliable "basis evidence" (from nontestifying declarants) has arguably been put before the jury by the expert's reliance upon it in forming her opinion, is, at most, a Due Process issue that turns on whether the defendant has been denied his right to a "fair" trial.
5 comments:
Prof. Friedman,
1. What out-of-court "statements" from a nontestifying declarant were placed before the jury by Lambatos's testimony?
2. Were any such statements "testimonial"? If so, which one(s), and why?
3. Didn't Lambatos (a qualified DNA expert) simply provide her own "independent" opinion -- that the data/DNA profile generated by nontestifying analysts from Cellmark "matched" the defendant's DNA -- without making a direct or indirect reference to any out-of-court "statement" by any nontestifying Cellmark analyst?
And, if that is the case, isn't the reliability (or unreliability) of the Cellmark data/DNA profile that Lambatos relied upon (in forming her "independent" opinion) not a concern of the CC. But, rather, governed only by (1) the state's evidence rules, and (2) the constitutional due process right to a "fair" trial, i.e., the right not be "deprived" of "liberty" (not to be convicted) without due process of law (without a "fair" trial)?
Even if the Cellmark data/DNA profile was patently unreliable, its introduction into evidence (through the testimony of Lambatos, i.e., her reliance upon it in reaching her ultimate opinion regarding a "match") does not, by itself, violate due process, right?
Rather, any such admission would violate due process only if its admission resulted in the denial of a "fair" trial -- an issue that could not be determined pre-trial (like the CC question of whether a statement is testimonial or not). But could only be answered after a conviction in light of all the other evidence of guilt that was properly before the jury.
Your thoughts?
I can't respond in detail to Paul right now. But three quick points:
(1) I think the Cellmark report was clearly testimonial within the meaning of Melendez-Diaz.
(2) The testimony of Sandra Lambatos conveyed to the jury at least part of the substance of the Cellmark report, sufficiently to invoke the Confrontation Clause.
(3) The Cellmark report could have supported Lambatos's opinion only to the extent its assertions were true.
Agree with Prof Friedman, and the brief for petition for cert makes point 2&3 clear. The key is does Sotomayor think that's allowed given her concurring opinion in Bullcoming.
In my non lawyer point of view, if the prosecution can use expert witness to bypass the confrontation clause in such a way, no one will ever bother calling the person who did the real lab work to stand, it's a 2 in 1 package, and an expert witness tends to sound better anyway.
I am guessing the dissenters could argue that if there is something dodgy about the lab report, the defense could subpena the lab assistant, but again I think that defeats the confrontation clause (which if I recall correctly puts the burden on the prosecution.)
Awaiting for your thoughts, Prof Friedman!
Once again a comment from Paul Vinegrad, who is having intermittent problems posting. I won't respond right away, but I am preparing a post on issues in Williams. End of Friedman, beginning of Vinegrad:
I agree that the prosecution can't do an end run around the CC by introducing testimonial statements through the guise that they are simply "basis evidence" (not introduced to prove the truth of the assertions) that the jury can only consider in deciding upon how much weight to give to the expert's opinion(s).
I don't believe that a court's giving a limiting instruction suffices to resolve the CC violation, because the risk is too great that the jury will, notwithstanding the limiting instruction, consider the testimonial statements for their truth.
However, after reading the testimony of Lambatos and the petition for cert., the opposition, and the reply, I still am unable to isolate precisely what "statement(s)" from a nontestifying Cellmark employee the prosecution allegedly introduced through the testimony of Lambatos. Without identifying any such statement(s) it is impossible to determine which, if any, are testimonial.
Is it Prof. Friedman's position that Lambatos's simple act of relying on the Cellmark data/DNA profile/undisclosed "report" (in forming her opinion that there was a match) somehow impliedly introduced "statements" from the absent Cellmark employee(s) that the data/DNA profile/"report" that Lambatos relied upon was reliable? And therefore the opinion she conveyed to the jury was not "independent" of the implied assertions by absent Cellmark employees that their data/DNA profile/"report" was accurate?
If this is Prof. Friedman's argument, I don't think a majority of the Court will buy it. The M-D dissenters certainly won't. Thomas won't stretch his narrow conception of "witnesses" this far. If her concurrence in Bullcoming is any indication, Sotomayor won't go there.
I think a limiting instruction not to consider the "basis evidence" for its truth will resolve any potential CC issue, if the only "statements" that the defense claims are testimonial depends upon an implied assertion (of reliable data/reliable "basis evidence") argument.
As the Court did pre-Crawford, it will require a more direct and express "statement" before the CC is implicated. The possibility of the jury inferring that "basis evidence" (from nontestifying declarants) is "reliable" simply because the expert assumed it's accuracy in forming her opinion isn't sufficient to trigger a CC bar.
The reliability or unreliability of the "basis evidence" is a Due Process issue subject to adversarial testing without confrontation (i.e., argument by defense counsel that the expert's opinion should be given no weight because the prosecution has failed to establish that the data/DNA profile/undisclosed "report" that she relied upon were accurate or reliable).
Denying the defendant the opportunity to confront the absent Cellmark employees under these circumstances does not violate the CC.
Any possibility that unreliable "basis evidence" (from nontestifying declarants) has arguably been put before the jury by the expert's reliance upon it in forming her opinion, is, at most, a Due Process issue that turns on whether the defendant has been denied his right to a "fair" trial.
If anyone can respond in this thread with a link to the cert papers in Dilboy and/or Barba, I'd appreciate it. Having trouble locating them.
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