Wednesday, August 31, 2011

Petitioner's brief and Joint Appendix in Williams

The petitioner has filed his brief and the Joint Appendix in Williams v. Illinois. You can read the brief by clicking here and the Joint Appendix by clicking here.


pv said...

The Cellmark-generated DNA profiles (i.e., raw data) are not "statements," and, therefore, not hearsay. Their introduction by the State (through the testimony of Lambatos, or any other witness) cannot violate the Confrontation Clause.

To the extent the State (through Lambatos) introduced the substance of any hearsay statement by an absent Cellmark employee, that statement will not be testimonial under Justice Thomas's formulation unless it was "formalized." It doesn't appear that any such statement by a Cellmark employee was made under oath (as in Melendez-Diaz) or was "certified" (as in Bullcoming). Thus the State should have the 4 M-D & Bullcoming dissenters and Thomas on their side.

In any event, even if any such statement is formal enough for Thomas (and thus testimonial in the eyes of 5 members of the Court), the petitioner must still convince Justice Sotomayor that Lambatos's ultimate opinion regarding a "match" was dependant upon that statement. It was not.

Lambatos's "match" opinion was based upon her own independent comparison of the Cellmark-generated DNA profiles (i.e., raw data that is not a hearsay "statement," testimonial or otherwise) with the defendant's DNA profile (generated by one of the State's testifying experts).

Any additional reference by Lambatos to the substance of a testimonial statement by an absent Cellmark employee is harmless error, in light of her "independent" match opinion -- an expert opinion that is formed based upon a comparison of raw data, not by simple reliance upon an absent witness's testimonial statement.

Simply stated, Lambatos was not (as was the case in M-D & Bullcoming) functioning as a mere conduit to bring before the jury the testimonial statements of absent witnesses and thereby deprive the defendant of his confrontation rights.

Prediction: Kennedy, Roberts, Breyer, Alito, Sotomayor, & Kagan support the State. Thomas probably joins the theory that Lambatos's match opinion was "independent" of any testimonial statement of an absent Cellmark employee. Scalia & Ginsburg leaning strongly in favor of petitioner, given the overly robust protection they find in the CC. But I wouldn't be surprised if even Scalia & Ginsburg support the State as part of a unanimous Court.

Anonymous said...

Lambatos's opinion is only independent in the raw physical sense that she spoke the words and not someone else. But /cognitively/ her opinion is in every way based upon the testimony of others. Under your argument if my uncle told my brother who told my sister who told me XYZ when I repeat XYZ my statement is now "independent". What nonsense. Lambatos's comparison only has validity because she assumed the underlying data was true.

You can claim that something is objectively true when it is objectively false. That doesn't make you correct; it makes you a bold faced liar.

Anonymous said...

PV, you must not have much knowledge of DNA typing, or you wouldn't have referred to the Cellmark-generated profile as raw data. It is a pretty complex process with many avenues for human error. Also, by claiming that Lambatos's opinion regarding the match was independent from Cellmark's profile, are you seriously asserting that if the profile was inaccurate it would have no effect on the value of Lambatos's opinion?

pv said...

Anon 1:03,

If the Cellmark DNA profile that Lambatos relied upon in forming her "match" opinion was inaccurate (or unreliable) it certainly would undermine her ultimate opinion.

Williams's attorney could argue to the jury that the prosecution failed to establish the accuracy (or reliability) of the Cellmark DNA profile, therefore, they should give no weight to Lamabatos's "match" opinion.

However, the accuracy (or reliability) of the Cellmark DNA profile is irrelevant to the Confrontation Clause issue before the Court.

The Confrontation Clause is not concerned with excluding unreliable (or inaccurate) evidence. It only precludes the prosecution from introducing "testimonial" hearsay (whether reliable or unreliable ... whether accurate or inaccurate) if the defendant has not been given an opportunity to confront the declarant.

The issue in Williams is whether the CC bars an expert from stating an independent opinion that is based, in part, upon the work of nontestifying declarants where no "statement" of any such declarant is put before the jury.

The fact that the work done by the nontestifying Cellmark declarants may be inaccurate (or unreliable) doesn't give rise to a CC bar to the expert's stating her opinion. (Other rules of evidence might bar any such expert opinion, if the prosecution cannot establish that the basis for the opinion is accurate or reliable.)

The only thing the CC bars is the expert from repeating the hearsay "statements" of the nontestifying Cellmark employees who were responsible for generating the DNA profile. So long as no such "statement" is put before the jury by the testifying expert, the CC is not implicated.

Anonymous said...

PV 5:51

I think Anon 1:03's point is that the profile isn't created by the push of a button. If there is some sort of input by the technician to generate the so-called "raw data," then the profile most certainly is testimonial.

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