1. The Cellmark report was testimonial. As I understand it, this was a report on a crime scene sample referred to Cellmark by the Illinois State Police. I don’t think that there is much doubt that the primary purpose of the report, however one might analyze it, was to create evidence for use in prosecution. (That is more rigorous than the test I think ought to be applied, but that’s another issue.)
I think it’s important to bear in mind that the other issues raised by Williams come into play only if the underlying statement is testimonial. That may be obvious, but it is worth emphasizing for a couple of reasons. First, this fact should relieve much of the concern about costs, financial and in terms of lost evidence. No confrontation problem arises unless the report is made in anticipation of evidentiary use. For example, if a lab tech does a blood test without the anticipation of evidentiary use, it will not be testimonial, and there is no confrontation issue. Second, if the statement is testimonial, then that means that the statement was made in anticipation of evidentiary use – and in fact under current law it would mean that it was made with the primary purpose of creating evidence for use in prosecution. That, I believe, should raise alarm bells for a court considering creation of a doctrine that would allow use of the statement without the live testimony of a competent witness.
2. The statement was not formally admitted, but a crucial part of the substance was made known to the jury. The prosecutor asked Sandra Lambatos, the in-court witness, “Was there a computer match generated of the male DNA profile [reported by Cellmark] found in semen from the vaginal swabs of [the victim] to a male DNA profile [reported by another analyst in the state police lab] that had been identified as having originated from Sandy Williams?” She answered in the affirmative. The prosecutor then asked whether she had compared the two profiles. She said she had. He asked what the frequency of such a match would be if someone other than Williams were the source, and she answered with very low numbers. Finally, the prosecutor asked, “In your expert opinion, can you call this a match to Sandy Williams?” and she responded simply, “Yes.”
Formal admission of an out-of-court statement is not necessary to invoke the Confrontation Clause. When a statement is a writing, it is of course often admitted as an exhibit. When it is unrecorded, then no tangible exhibit of it can be offered. We necessarily rely on another witness's account of the statement -- but the Clause may be brought into play without that account being purportedly verbatim. It should be enough if the prosecution is effectively asking the jury to infer that the in-court witness is communicating some or all of the substance of an out-of-court testimonial statement, and that this substance is true. See my recent post, When is a statement presented for purposes of the Confrontation Clause?
In considering application of this principle to this case, note first that the existence of the statement was made clear to the jury. In other words, this is not a case in which an expert assembles information from one or more sources and then draws an inference based on that information without disclosing what it is or what its sources are. (I don’t believe that if that were so it would per se render the Confrontation Clause inapplicable; it still might that the jury would likely infer that the expert’s opinion was based on a statement to a certain effect, and even if not there would be a concern that the expert’s opinion is being used to repackage the information contained in an undisclosed testimonial statement. But, whatever the ramifications may be of that situation, the Court need not address them in the Williams case.) The testimony explicitly referred to the Cellmark report. Furthermore, it was clear what the substance of the statement was: It indicated that the vaginal swab taken from the crime scene reflected the same DNA profile as the swab taken from Williams. It is as if an in-court witness reports, “Somebody at the scene described the person she saw commit the crime, and the description closely matched Williams.” So far as the Confrontation Clause is concerned, the report was presented to the jury.
3. The argument that the statement was in any event presented to the jury not for the truth of a matter that it asserted but rather in support of the expert’s opinion seems willfully wrong-headed to me in this context. In prior posts on this blog, including one discussing the fine opinion in People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727, 810 N.Y.S.2d 100 (by a former boss of mine, Judge Robert Smith), I have emphasized the simple point that if a statement supports the expert’s opinion only if it is true then it is a sham to say that it is being presented to support the opinion but not for its truth; see also The Not-for-the-Truth End Run. And in Williams, the application of this principle is perfectly clear: If the profile revealed by the vaginal swab was not what the Cellmark report said it was, then that report provided no support whatsoever for the expert’s opinion.
4. This analysis should not be affected by concluding that the expert’s opinion conveyed additional information not contained in the original report – an argument not available to the prosecution in Bullcoming, where the in-court witness did nothing more than transmit the information reported by the absent analyst. The question is not whether the in-court witness’s testimony had added value, but whether the out-of-court report was presented for its truth. This is simply an ordinary instance of a prosecution case depending on multiple links in a chain – and each link must comply with the Confrontation Clause. We wouldn’t, for example, tolerate a witness testifying that a given sample contained cocaine without the prosecution also presenting proper evidence tying the sample to the case. This is no different. If the expert’s opinion does indeed convey additional information, that is something more that the prosecution has to prove; it does not ease the burden on the prosecution.
Indeed, the “expert value added” theory would be an invitation to manipulation by the prosecution and its witnesses. That is, the prosecution would have an incentive to manufacture needs for its in-court witnesses to add value over the other information presented to the jury.
For example, suppose a lab analyst reports results from which a qualified chemist could easily infer the presence of cocaine – but that the report does not include this bottom line. If the “expert value added” theory governed, a chemist could, so far as the Confrontation Clause is concerned, testify at trial against an accused, “In my opinion, cocaine was present in that sample.” (As discussed below, evidence law in most jurisdictions would require the expert to satisfy the court that the information on which she based her opinion was “of a type reasonably relied upon by experts” in her field, but that is a standard easily met.) The lab analyst, who by hypothesis knew that her report was intended for prosecutorial use, would not have to come to court, and the report would not even have to be introduced or otherwise presented to the jury.
5. Fed. R. Evid. 703, copied by most of the states (now including Illinois), provides:
A 2000 amendment to the Federal Rule adds:
If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [on which a testifying expert bases an opinion] need not be admissible in evidence in order for the opinion or inference to be admitted.
Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.A few points. This Rule does not purport to state a constitutional principle. Nor does it state an evidentiary principle of long standing; it was developed and adopted in the third quarter of the 20th century. There is no constitutional problem with the Rule so long as the information provided to the expert is not a testimonial statement. But if the expert does base an opinion on a testimonial statement, then I think there are potential constitutional problems.
First, if the statement is presented to the jury for the truth of what it asserts – and I have argued above that in Williams these conditions were met for purposes of the Confrontation Clause – then there is a violation of the Clause, assuming the author of the statement (or someone else who can endorse its substance from first-hand knowledge) does not testify at trial. The last sentence of Fed. R. Evid. 703, if it were applicable, would relieve the statement of objection to admissibility under ordinary evidentiary rules, but of course it cannot provide relief from a constitutional objection – and note that it is based on a set of considerations, a weighing of probative value and prejudice, having nothing to do with the Clause. This sentence as adopted, as I recall, because courts were in conflict about how to handle the situation in which an expert was allowed to offer an opinion based in part on a statement otherwise inadmissible and the proponent sought to use the opinion as a lever to gain admissibility of the statement. Some courts, I believe, without quite recognizing the nature of the Confrontation Clause problem – this was before Crawford – nevertheless had a sense that in at least some cases there was something fishy about letting an otherwise inadmissible statement in on the basis that it supported the expert’s opinion. But the rulemakers couldn’t articulate the circumstances in which this created a problem – the answer, I think, is that it’s a problem when the statement is testimonial – and so they responded http://www.blogger.com/img/blank.gifwith a rather clumsy compromise, simply putting some extra weight on the prejudice side of the scale prescribed by Fed. R. Evid. 403.
Now, what if the out of court statement is testimonial but it is not presented to the jury? Is there a Confrontation Clause problem with allowing the expert to give an opinion based in part on the undisclosed statement, as Fed. R. Evid. 703 purports to allow? That, as I have said, is a question not presented in Williams, and there is no need for the Supreme Court to resolve it in deciding Williams. But a couple of comments. First, even if the statement is not explicitly disclosed to the jury, it may be that enough is disclosed that the jury will likely infer the substance of the statement. Second, even apart from that, I think there may be a substantial Confrontation Clause problem. Recall, that by hypothesis, the statement made to the expert is testimonial. The expert therefore may essentially be repackaging information provided by an out-of-court witness who does not come to court. Again, an example would be a chemist who offers an “opinion” in court that a substance was cocaine, based on a lab report giving information that strongly implies that conclusion to chemists.
In short, I worry that if the Supreme Court holds for the state in Williams, it will invite subterfuges and manipulations that will substantially impair the confrontation right.