Saturday, July 09, 2011

Initial thoughts on Williams

In Williams, the state presented the testimony of a DNA expert that in her opinion, based on a Cellmark report on DNA found in a crime scene sample and on a report by the Illinois State Police on DNA found in a swab taken from the accused, that the accused was the source of the DNA found in the crime scene sample. No one from Cellmark testified at trial.

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:

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.
A 2000 amendment to the Federal Rule adds:
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 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.


Anonymous said...

I am confused by the discussion in section 2 of your post. I was under the impression from the Illinois Supreme Court's opinion that the private lab did not perform any comparative analysis in Williams, yet you say that the testimonial statement indirectly conveyed by the state's expert was "that the vaginal swab taken from the crime scene reflected the same DNA profiles as the swab taken from Williams." Am I mistaken?

Anonymous said...

"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"
... furthermore if it is not being admitted for its truth then it is irrelevent and therefore not admissible - isn'tit?

Richard D. Friedman said...

In response to the first comment: You are right that Cellmark offered no comparative analysis. So I should have made my point with slightly different phrasing, something like this:

Furthermore, it was clear what the substance of the statement was: It indicated that the vaginal swab taken from the crime scene reflected a DNA profile that, in the view of Lambatos, was the same as that on the swab taken from Williams.

Sorry about the ambiguity -- but I don't think it changes my essential point at all.

As to the second point, the state is attempting to separate out "for the truth" from "in support of the expert's opinion." Once it is realized that these are the same, then if it's not admissible for the truth it''s presumably not relevant.

Anonymous said...

Without the report being admitted into evidence or read by the testifying expert to the jury, how can you know what statements the report contained, if any of those statements were testimonial, or, assuming there are statements of the nature you suggest, that the testifying expert actually relied on those particular statements to reach her opinion?

Richard D. Friedman said...

Lambatos made clear that Cellmark reported a DNA profile for the vaginal swab. She concluded that this profile matched the one in the sample on the swab taken from Williams. If she didn't rely on the Cellmark report as being truthful, she had no basis whatsoever for concluding that there was a match. The set of circumstances under which the report was requested and given demonstrate that it was testimonial; I have not heard it suggested that it was made for any purpose other than aiding in investigation and prosecution of a crime. The situation is as if a witness to a crime made a statement to a police officer describing the perpetrator, and the officer testified at trial, "An observer gave me a description of the perpetrator, and it matched the features of the accused."

Anonymous said...

I am a bit confused about what is the precise out-of-court statement that you are saying was admitted in violation of the Confrontation Clause. You write that the DA asked if "there was a computer match generated" by Cellmark, and Lambatos said yes. You then write that Lambatos said she compared the profiles herself and determined that they matched.

Standing by itself, I would say that the Cellmark declaration of a match was the pertinent statement (and a highly prejudicial one). But Lambatos basically said she reached an independent conclusion on that, so there is a question about whether it is in for the truth and whether that error is harmless. So, is your focus on that "match" statement, or are you focused on the antecedent statements about the profiles themselves, i.e. "so-and-so's sample had a DNA profile with the following characteristics." It seems that, as to *that* factual statement, Lambatos did no independent analysis and simply relied on the Cellmark statement for its truth.

Sorry if this is confusing or obvious. I'm just trying to understand if the Cellmark statement about the "computer match" will be in play in the upcoming Supreme Court decision.

Thanks for your great blog.

pv said...

I agree with Anon.

Prof. Friedman you need to identify with precision what "statement" from Cellmark was introduced through Lambatos's testimony?

Anonymous said...

I think the point is that the testifying expert only knew that the DNA profile she matched to the defendant's profile was the profile of the offender because Cellmark told her so. She then conveyed what Cellmark told her (the identity of the profile) to the trier of fact. Seems like a pretty simple application of Crawford to me.

Anonymous said...

I don't think DNA test results report who "the offender" is in a particular case. I think they show what genetic information is present on a piece of evidence.

pv said...

What confrontation clause concerns are raised by the following scenario?

DA elicits testimony that the victim's rape kit (with a specific case #) was sent to Cellmark. And it was received back from Cellmark together with charts/data that depict the DNA profile of the evidence from the rape kit. The charts/data are marked as Exhibit 1. But they are not introduced into evidence.

The DA presents testimony from the persons who obtained the rape kit from the victim; sent the rape kit; and received it back from Cellmark.

DA puts expert on the stand (Lamabatos).

DA shows Lambatos Exhibit 1.

DA asks Lambatos if the charts/data in Exhibit 1 is a DNA profile. She says yes.

DA asks Lambatos if she compared that DNA profile to defendant Williams DNA profile. She says yes.

DA asks Lambatos if, in her opinion, the DNA profiles "match." She says yes.

How does this scenario violate the confrontation clause?

Isn't this what happened in Williams?

Anonymous said...

Fine, the DNA tests don't report who "the offender" is, but that doesn't effect the analysis. What is important is not that the defendant's DNA matched any old profile, but that it matched the profile deduced from the semen recovered from the victim in this case. The testifying expert didn't have personal knowledge of the source of the profile she was given, she simply repeated what she had been told by Cellmark: that the source of the profile was the semen recovered from the victim. Without that statement being conveyed to the trier of fact, the expert's opinion regarding the match wouldn't tie the defendant to the crime. I assume that is the argument the petitioner is making. Again, this should be an easy call.

Anonymous said...

PV - which testifying witness in your scenario has personal knowledge that the profile contained in Exhibit 1 is the profile deduced from the rape kit?

pv said...

Anon @ 5:59 PM -

Witnesses other that Lambatos testified at Williams trial.

They testified from personal knowledge that:

1. A rape kit (that contained swabs from her vagina) was obtained from the victim;

2. That the rape kit was assigned a case # and sent to Cellmark for DNA testing; and

3. That the rape kit (with the same case #) was thereafter received from Cellmark, together with the charts/data that constituted the DNA profile obtained from the rape kit.

So there was independent evidence (that had nothing to do with Lambatos's testimony), based upon personal knowledge, that the DNA profile that Lambatos compared to the defendant's DNA profile was obtained from the victim's rape kit.

All Lambatos did was independently (1) compare the charts/data/DNA profile that Cellmark generated to the defendant's DNA profile, and (2) conclude, based upon her expertise, that they matched.

Lambatos did not directly or indirectly put before the jury any "statement" by any nontestifying Cellmark employee regarding the DNA profile from the rape kit.

Sure, Cellmark may have screwed up in the method it used to obtain the DNA profile from the rape kit. And Cellmark may have sent the wrong charts/data/DNA profile back to Illinois. But these are not concerns of the confrontation clause.

As I stated in an earlier post, these concerns go to the question of the reliability of the Cellmark data that Lambatos relied upon. Reliability is not the concern of the CC -- a provision that is only concerned with "testimonial hearsay," reliable or unreliable, true or untrue.

The reliability of the Cellmark charts/data/Dna profile (relied upon by Lambatos) are governed by the forum's law of evidence and, in the context of whether the defendant was afforded a "fair" trial, the Due Process Clause.

Anonymous said...

PV - The witness in your scenario who would testify that he received a DNA profile from Cellmark would not have any personal knowledge that the profile was obtained from the rape kit. Only Cellmark knew that. As such, by testifying that the profile was obtained from the rape kit, the witness would be merely repeating what Cellmark had reported. Thus, Cellmark's out of court statement would have been introduced into evidence. A clear CC violation.

How is your scenario any different than a police officer testifying that he received a gun from a person and that person informed him the gun was the weapon used in the crime in question? I don't think a court would have any problem seeing a CC issue in that situation.

pv said...

Anon @ 4:49 PM -

X sends rape kit to Cellmark with case #1234567.

Y gets rape kit & DNA profile back from Cellmark with case #1234567.

X and Y testify. Each has personal knowledge as to what they did, i.e., send and receive the rape kit. They don't testify to anything other than this.

This is circumstantial evidence that the DNA profile was from the rape kit.

Can't get any simpler.

The expert -- Lambatos -- simply looks at the DNA profile (that circumstantial evidence establishes is from the rape kit) and compares it to defendant's DNA profile. And concludes that they match.

Absolutely no CC issue.

I can't explain it any more basically than this.

Anonymous said...

If Y testifies simply that he/she received the rape kit together with a profile from Cellmark, without stating the purported source of the profile (Y wouldn't have personal knowledge of that fact) then I think a legitimate argument could be made that no out of court statement was conveyed to the jury. But in that situation, the testimony would likely be inadmissible because the prosecution failed to established the profile's relevance.

However, to the extent that you argue that X's and Y's testimony would provide circumstantial evidence that the profile was obtained from the rape kit, I think that is going too far. Presenting testimony the relevance of which requires the jury to infer both that an out of court statement was made and the truth of statement implicates the CC. The prosecution would be using an out of court testimonial statement has evidence against the defendant, which is what the CC is all about. The court would hopefully see through the use of such evidentiary sleight of hand. I think the prof addressed this is a previous blog post.

Anyone know when the merit briefs are due in Williams?

Anonymous said...

PV, how far back into this blogs comment threads do I have to look to find you arguing that if Bullcoming came out as it did, it would clearly preclude this practice? And how much further back would I have to go to find you arguing that if Melendez-Diaz came out the way as it did, it would clearly preclude what the prosecution tried to do in Bullcoming?
This analysis isn't hard, Crawford's opponents recognize how it should be applied (as they have always hastened to point out when trying to point to the negative implications of each subsequent case) they're just willing to engage in unprincipled arguments to try and limit the case's effects. The problem with your X sends profile #1234567 to lab, Y reports he later receives a profile #1234567 from the lab that matches defendant example is that it isn't probative of anything unless you read a statement from the lab into it (these are the results from profile #1234567 that we received from X). The number on the top of the report isn't circumstantial evidence of anything, it's an attestation that somebody wrote there as to what the report represents. And whoever placed the report number there, effectively saying "this is from the sample I received marked #1234567), is the witness that needs to testify.

Anonymous said...

Brief follow-up. The reason why the numbers on the report are not "circumstantial evidence" of anything is because they are not the product of circumstance but of a deliberate representation. The numbers don't fall from the sky and land on reports corresponding to samples. For instance, if you see me walk into a building shaking an umbrella and soaking wet, if you know nothing else about my veracity you have some circumstantial evidence that it's raining outside. If I walk in and write down on a piece of paper "it's raining," or some series of numbers that signifies rain, that isn't circumstantial evidence at all. That's an attestation which has no probative value independent of my own truthfulness. That's what the numbers on the report are. They're not the result of some circumstance in the world at large, they're the result of a deliberate representation that the jury would have to credit in order for the report to have any probative value.

Greg Jones said...

Prof. Friedman, please take a look at Hathnance v. District of Columbia, 2011 WL 2836363 (D. D. C., 2011), in which the plaintiff's expert in a false-arrest case relied upon an inadmissible report about a history of false arrests in the District to support the plaintiff's claim. I'd like your thoughts about those facts as applied to a criminal case, like the Williams case. Hathnance is also discussed on Evidence Prof Blog, which is where I first saw it.

Anonymous said...

The Williams briefing schedule is now up on SCOTUS's website.

Anonymous said...

Professor, do you see a meaningful different between an expert relying on case-specific hearsay as opposed to non-case-specific hearsay? For example, an expert on gangs testifies that based on what he had been told by various gang members, he believed the defendant's actions were gang related. If the expert's interviews with gang members did not involve case-specific matters, wouldn't the gang members statements not be testimonial?

P CLE said...

Yes Anon, you're spot on

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