Wednesday, December 07, 2011

The Williams argument

On Tuesday, I attended argument of Williams v. Illinois in the Supreme Court. Here are some reactions. You can find the transcript by clicking here. The audio recording is not yet available.

Perhaps the most interesting aspect of the argument was the comments by Justice Kennedy, author of the dissents in Melendez-Diaz and Bullcoming, indicating that he thought the state’s case was weak, weaker than in those cases. He certainly seemed bothered by the fact that nobody from Cellmark was present. It is hard to draw too much from comments at argument, of course, but it may be that he is ready to accept Melendez-Diaz as law and make the best of it; he seemed to have turned from emphasizing what he has claimed would be dire consequences of Melendez-Diaz to trying to work out a reasonable and practical way of applying it. I don’t think any of his comments gave comfort to the state.

As expected, a couple of the justices (but not Kennedy!) were interested in the possibility that victory for Williams would mean that a parade of lab witnesses would have to testify live; Justice Breyer seemed to take this as a given, and Justice Alito pointed explicitly to the New York brief, which I discussed at length in a posting on Monday. I thought Brian Carroll, arguing for Williams, responded effectively (and along lines similar to that posting) that most of the participants in the process do not make testimonial statements that are conveyed to the trier of fact. (Justice Kennedy seemed to agree; he spoke of the person who reported the test results as "the Hamlet in hge play," and the others as merely "supporting actors.") Justice Alito did not pursue the point, and neither did either of the lawyers on the state side.

The attempt by the state side to draw a distinction between admission of the statement for the truth and admission in support of the expert’s opinion got considerable attention, including from Justice Kagan. I think Mr. Carroll clearly made the point that there is no meaningful distinction in this context, because the statement does not have any value in supporting the opinion unless it is true. But that did not stop the state side, especially Michael Dreeben of the Solicitor General’s Office, from making a valiant effort to demonstrate a difference.

One point he made is that Illinois law purportedly prohibited the trial judge (who sat without a jury) from using the statement to prove the truth of what it asserted. One problem with this is that on the face of it, as Mr. Carroll pointed out, the judge certainly appeared to have relied on Cellmark as reporting the truth; the citation by Anita Alvarez, the Cook County Prosecuting Attorney, of a passage from the state supreme court decision declaring that the use was in support of the opinion did not help her in this respect. The deeper problem is that Illinois law cannot overcome principles of logic or of federal law. The logic of the situation is that the Cellmark report was useless in support of the expert’s opinion unless it was true, and as a matter of constitutional law that should bring it within the scope of the Confrontation Clause. If not, there is an enormous opening in the Clause that states can exploit to whatever limit they choose, by presenting evidence that a someone deemed by the state to be an expert will claim supports an opinion on a disputed fact. (Thus, I think Mr. Carroll could have saved himself some trouble on rebuttal when Justice Sotomayor asked him whether any deference was owed to the state supreme court’s declaration that the statement was not used for the truth; the optimal answer, I think, is that no deference is owed, not only because the state supreme court’s characterization is plainly false but also because the distinction the court tried to draw has no force and should not be recognized as a matter of federal constitutional law.)

Mr. Dreeben’s second argument was that the state merely presented circumstantial evidence of what Cellmark did; therefore, it had to live with whatever weaknesses in the case it created. (Of course, the case was not so weak that it could not get a conviction.) One problem with this line is that, once again, the judge’s use of the Cellmark report contradicts the theory. Mr. Dreeben said that the state gave up the right to say, “You can believe that this DNA report is reliable and trustworthy because Cellmark says so.” But that’s pretty much precisely what the trial judge said. And more fundamentally, even if the state could prove circumstantially from shipping records that Cellmark did a DNA test on the vaginal swab – I’m dubious on that, but let’s put it aside – that wouldn’t be sufficient for the state’s purpose. The Cellmark test helped the state only if Cellmark reported the presence of DNA of a particular profile – one that, as determined both by Lambatos and a computer program, matched that of Williams. Lambatos’s testimony made clear that Cellmark did indeed report such a profile. And, even more broadly, the theory presented by the SG would fundamentally undercut the confrontation right. Under that theory, anyone whom the state is willing to characterize as an expert can gather testimony from the witnesses and then present summary evidence in court: “Based on my years of experience, gathering information in the way experts like me do [list sources of evidence], I have concluded that the accused committed the crime, in the following manner.” The prosecution would take a chance, says the SG, that the trier of fact would not find this persuasive evidence. Sorry, would be my response, the Confrontation Clause says the accused doesn’t have to take a chance on that style of presentation: Someone from Cellmark prepared a testimonial statement, and the state relied on it as a truthful report for a critical part of its case; the state had to bring a Cellmark witness in for confrontation

Justice Breyer made it clear that he was thinking of working up an exception to the confrontation right in which, if I understood it, statements by accredited labs would be admissible so long as there was no reason to doubt the credibility of the particular technician involved. (How the accused would determine that there was such a reason, I am unsure.) He did not claim any historical pedigree for this would-be doctrine, but suggested that, according to Wigmore, experts often relied on various forms of hearsay. A few points: First, Wigmore never understood the nature of the confrontation right, and I don’t think he should be considered authoritative in speaking about it. (He is, of course, an excellent source of material.) Second, I think it is clear that until Fed. R. Evid. 703 was adopted in the late 20th century, the standard rule was that experts could base opinions on facts known to them personally or stated to them hypothetically and proved by other admissible evidence; that certainly was the understanding of the drafters of Rule 703. Third, bear in mind an important point made by Crawford: Although various doctrines in the 18th century allowed certain types of what we would now characterize as hearsay, there was not a reliability-based set of exceptions for testimonial statements; the dying declaration exception (which I think should be justified on other grounds) was, as Crawford said, sui generis. Fourth, Justice Breyer explicitly based his idea on the on the fear of a parade of lab witnesses and on the presumed reliability of the evidence. The fear is, as suggested above, based on a false premise. (Melendez-Diaz also makes clear that such consequences should not dissuade the Court from adopting a valid construction of he Confrontation Clause, but I don’t think it’s bad for the Court to subject its views to a reality check.) And the second consideration seems to be little more than Roberts redux.


Anonymous said...

Honestly, I thought this case went better for Williams than I thought it might. I think the argument made it clear that the dissenters in MD were looking for a way to influence a majority opinion rather than claim victory for their side. I think your assessment that Kennedy has tossed in the towel on this issue is correct.

I do think that Breyer's point can be boiled down to a 'qui tesificare ipsos testibus' problem (who shall testify for the witnesses themselves) which is just an infinite regression problem. I think the answer that the 'supporting actors' statements are not testimonial is weak and I think there are stronger grounds than that for rejecting the issue. But it's a minor side show.

Depending on the internal politics of the court I can see this being a 9-0 decision for Williams. I would be shocked, now, if the State wins.

Anonymous said...

I don't think Roberts, Alito, and Breyer are moving, and I think the SG's argument may be able to pull Kagan to the dissent (I don't think anybody was buying what the State was selling). Sotomayor appeared to be siding with Williams. Then again, I don't think the argument in Bryant was a good prediction of how bad her opinion would end up being in that case. My guess is 5-4 for Williams, with either Kagan or Kennedy supplying the fifth vote. That said, I would not be surprised if it goes 5-4 the other way.

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