A (mostly) bad decision from the Fourth Circuit

Several readers have pointed me to a decision made on Thursday by the U.S. Court of Appeals for the Fourth Circuit, U.S. v. Summers, 2011 WL 6276085. Here are a summary and some thoughts.

Summers was charged with drug-related crimes. The stuff was allegedly found in a black North Face jacket that he left behind in a chase. The prosecution authenticated the jacket through the testimony of several officers who testified that a particular jacket, Government Exhibit No. 1, was the one that Summers wore on the night in question. The defense introduced an internal log of the FBI lab, which purported to show the chain of custody of the jacket, but the signers of the log did not testify at trial.

There was no Confrontation Clause issue in this respect, and the court got this part of the case right. Given that the prosecution wanted to introduce the jacket as an exhibit (I'm not sure that it had to, but let's put that issue aside), its burden of authentication, as usually stated, was merely to present sufficient evidence for the trier of fact to conclude that the particular jacket was what the prosecution claimed it to be. (I actually think that the burden ought to be lower – see my article Conditional Probative Value: Neoclassicism Without Myth, 93 Mich. L. Rev. 439 (1994) – but let's put that issue aside as well.) The prosecution satisfied this burden by the direct evidence of witnesses who testified that the exhibit was the very jacket that Summers wore. (How they would remember this particular jacket among all others, and why they didn't tag it to make the identification surer – again, let's put those issues aside.) So the prosecution didn't feel any need to provide the log, perhaps because the jacket itself wasn't so important to its case. The defense introduced the log, but it couldn't pry its way into having a Confrontation Clause issue by presenting evidence on which the prosecution might have relied – had it chosen to and brought the witnesses in – but decided to forgo.

There has been loose talk in connection with Williams to the effect that there can't be a confrontation problem with anything that comes out on cross or as part of the defense case. I hope to write on that soon, because I don't think that's categorically true – if the defense flushes out that the in-court witness has testified without personal knowledge and instead has acted in effect as a conduit for an out-of-court witness who has not been subjected to confrontation, then I think there is a problem under the Confrontation Clause. But that's not what happened here – the prosecution presented the testimony that it deemed satisfactory with respect to the jacket, and that testimony was from personal knowledge. The defense could introduce the log if it wanted to, but that did not create an issue under the Clause.

As to the other part of the case, however, I think the majority of the Summers court erred pretty badly. This part involved proof that the predominant DNA found on the jacket was that of Summers. An FBI analyst, Shea, testified at trial, but he did not do any testing. One judge on the panel thought the court should not have reached the issue, because it found that any error was harmless, and I think that this is right: If, as the court concluded, it really believed that the case was lock solid without the DNA evidence, then it should not have reached the issue, especially given that Williams is pending. (The court never took note of Williams.)

The court, drawing on its precedents, said,

We perceive little difficulty with the admission of Shea’s testimony, given the predominance therein of his independent, subjective opinion and judgment relative to the lesser emphasis accorded the objective raw data generated by the analysts.

And then it cited and quoted Fed. R. Evid. 703, as if a late-20th century evidentiary rule can answer a constitutional question.

This mirrors an argument that has been made in the Williams case, and it is as wrong-headed here as it is there. Sure, Shea added his subjective opinion in evaluating the data – but the fact that the prosecution has an extra step to present (evaluation) cannot relieve its burden of proving the underlying facts in a constitutionally acceptable manner. Two critical points must be borne in mind. First, the underlying data were conveyed to Shea in a testimonial statement, a report by his colleagues. No confrontation issue arises unless this is true. Second, though Shea's testimony may not have emphasized that underlying data, his opinion was based on them; the court acknowledged that the data were "crucial" to the opinion; if the data were inaccurate, Shea had no basis for his opinion.

And in fact, though Shea might not have emphasized the data in his testimony, the report itself was introduced, with the data. This gave the majority "pause," but they overcame their doubts. Based on a prior decision in the Circuit, the majority thought that there was no problem with proving "the numerical identifiers of the DNA allele here, insofar as they are nothing more than raw data produced by a machine."

Let's be careful here. What was actually introduced, as I understand it, was an allele chart, similar to the one in the Cellmark report in Williams. Sure, such a chart reports data generated by a machine, but it in itself is produced by humans. (Moreover – though this should not be crucial – it requires judgment to produce the chart; this is not as simple as recording a number off a screen.) A machine makes a streetlight green, but a witness who observes that phenomenon and reports it for use at trial is making a testimonial statement, as Bullcoming made clear. It is no different here.

Indeed, it is somewhat remarkable that the Summers majority got to the result they did with respect to the report in the face of Melendez-Diaz and Bullcoming. And the way they did so shows just how subject to manipulation the law will be if the Supreme Court were to hold in Williams that there was no problem because the in-court expert presented her own opinion in evaluating the data. The Summers majority said,

The notarized certificates of analysis at issue in Melendez-Diaz revealed considerably more than raw data; they concluded that the substance attributed to the defendant’s possession "was found to contain: Cocaine."

And further:

Melendez-Diaz and Bullcoming each involved one or more absent expert’s "certification" with respect to the meaning of the underlying raw data, and no such certification is at issue here.

So in other words, in Melendez-Diaz, if the report had just avoided the very last word, it would have been acceptable to introduce the certificate without live testimony from anyone who observed performance of the test. I'm not sure just what "certification" in Bullcoming the Summers majority believes was fatal, but evidently there, too, the change of a few words in the report would have enabled it to be admitted without testimony of anyone who performed the test. In my amicus in Williams, I warned of precisely this manipulation: The report that gives everything but the bottom line.

The Summers court seems to have some qualms about this bad result, and it expresses some hope that if an accused makes a timely demand the prosecution will do the right thing and produce a lab witness. But if the courts don't compel the prosecution to do shttp://www.blogger.com/img/blank.gifo, I'm not sure why a request from the defense will persuade it to.

The Summers Court takes note of but disagrees with Derr v. State, 2011 WL 4483937 (Md. Sept. 29, 2011), which is discussed in Williams's reply brief, and on which I have written a prior post, A nice decision in a Williams-like case. Derr got it right when it said:

In light of Bullcoming and Melendez, it is inescapable that the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing or the supervisor who observed the analyst perform the DNA testing must testify in order to satisfy the Confrontation Clause, unless the witness is unavailable and the defense had a prior opportunity to cross-examine the witness.

The Cellmark report, and what it shows

Here is the Cellmark report, taken from the public files of the United States Supreme Court in Williams v. Illinois. A few points about it:

First, it seems to me that simply looking at the report demonstrates whatever degree of formality any justice is likely to require for a statement to be considered testimonial. It is not sworn, but we know that this fact in itself does not make a statement non-testimonial. It is on letterhead, dated, with a title, “Report of Laboratory Examination,” addressed to a recipient at the Forensic Science Center in Chicago, and signed by two laboratory directors. It bears two case numbers (I gather one for Cellmark and one for the submitting agency). It refers to the “exhibits received” and then to the disposition of “evidence.” Clearly it was made in contemplation of use in investigation and prosecution of crime.

Second, examination of the report should make clear that it was not simply the product of a machine (even assuming that mattered; the electropherogram, which was indeed the product of a machine, still needed human input at least to identify the sample tested). There is a one-page summary report, stating what tests the lab used and on what samples, summarizing the conclusions, and proposing a return of the evidence (which presumably would have allowed retesting!), together with a second page containing the critical allele charts. The male donor profile deduced by Cellmark is contained in the second of these charts. These first two pages are produced by humans. After these two pages, the report incorporates the electropherogram.

Third, the report makes clear that Lambatos could not have come to her own independent opinion as to what the male donor profile was simply by examining the electropherogram sent by Cellmark. As Lambatos testified repeatedly, the only electropherogram sent by Cellmark was of the mixed profile – meaning the sample contained DNA from both the victim and the male donor. There is no way to tell from that alone who produced what alleles. To deduce the male profile, it was also necessary to know what alleles were present in the victim’s DNA, and Cellmark did not send an electropherogram of her profile. (Of course, that could have been done, but it wasn’t.) What Cellmark did provide with respect to the victim was simply an allele chart (on the second page of the report), representing its statement of what the victim’s profile was. See p.5 of petitioner’s reply brief. From that, it deduced what the male profile was. Some of the deductions required relatively delicate judgments. (For example, at one of the loci Cellmark reported three alleles. It is possible, but rare, for an individual to have three alleles at one locus – but Williams does not; evidently, Lambatos interpreted the report to mean that the assailant’s profile included two of the three alleles, a factor that should diminish slightly the probative value of the evidence.)

I believe that Lambatos conveyed more than her opinion of what the deduced male profile was; I believe she really used the profile deduced by Cellmark, with which she said she basically agreed (notice, for example, that at JA 65 she testifies that she entered the profile from the Cellmark report to perform the data-base search), and the reliance on Cellmark gave the evidence extra heft. But in any event, Lambatos could not have reached an opinion as to what the male profile as based simply on the machine-generated information presented to her.

Fourth, and as a related matter, I think it is clear from the report that it was not merely used circumstantially. The circumstantial evidence argument, as I understand it, is that from the fact, as indicated by shipping documents, that the mixed sample was sent to Cellmark and a report purporting to be on that sample was received from Cellmark, one can infer circumstantially that the report received was the proper one. That seems to me to be a stretch, especially given that Cellmark and the state lab sent materials for numerous cases at once, but let’s assume it’s valid. If it were, and if the report was nothing more than a machine printout, then there might be some force to the argument. But it appears to me that the whole thing falls apart when one realizes that the critical part of the Cellmark report was not machine generated. It bears emphasis again: The electropherogram, the only part that was machine generated, showed only the mixed profile, not the male profile. The male profile that Cellmark deduced was presented as a human-produced statement in the allele chart on the bottom of page 2. It is essentially a statement that the donor of the sperm had 23 or 24 of 25 listed features. (I word it that way because of the three-allele locus; as I understand it, Cellmark was saying that the assailant had one or two of the three alleles listed at that locus.) In that sense, it is no different from a statement describing a couple of dozen visible features that the assailant had (hair color, eye color, height, and so forth). This is a detailed human statement that purported to describe the assailant, that was used to help identify him, and that could do so only if it was true. Frankly, the argument that the evidence was used circumstantially strikes me – notwithstanding the great respect I have for Michael Dreeben, who argued for the United States, and also for Paul Vinegrad, who has articulated the argument in commentary on this blog and elsewhere – as a lot of hooey once one understands the nature of the Cellmark report

I hope to post another entry soon discussing a way in which the Cellmark might possibly have been presented as circumstantial evidence – but that’s not what happened here.

Finally, similar reasoning should dispose of the argument that the problem was not one of confrontation but rather of adequacy of the proof. If Cellmark produced a thing, and that thing tended to prove guilt, but only on the assumption that it was what the prosecution contended it was, then there presumably would be no Confrontation Clause problem; there would only be a problem of authenticating the thing. But that simply isn’t what happened. Again, it seems to me that there is no getting around the fact that the Cellmark report was a detailed testimonial statement produced by humans that supported the prosecution case only if it was true: The report asserted not merely that a male profile had been found, and not merely that the testing had been done accurately. It also asserted what the profile was (allowing for some uncertainty at one of the loci). If it had not made that particular assertion, it would not have helped the prosecution. And the fact that it asserted a given profile – i.e., one that was later determined to match that of Williams – was clearly conveyed to the trier of fact. This is a Confrontation Clause problem, pure and simple.

On posting the Cellmark report

I will soon post the Cellmark report, which a friend has gotten for me from the publicly available files of the U.S. Supreme Court.

Before doing so, though, I want to note an issue that I had to resolve before posting the report. After I announced my intention on this blog to post it, I was given pause by a call from the Illinois State’s Attorney’s Office, mentioning Illinois criminal discovery rules. I had been aware of the rules, but did not believe they posed a problem, because the report is publicly available. But the attorney – who was pleasant and professional, and explicitly not threatening – put another slant on the matter by suggesting that I needed to take the issue particularly seriously because I am an attorney on the case. It is not clear that I am really an attorney on the case, but I understand that perhaps I could be treated as such, given that I consulted with petitioner’s counsel in preparation of the case. And so I did indeed take the issue seriously, and sought advice from a partner at one of the best-regarded firms in Chicago. I resolved that if this attorney advised me that state law precluded me from posting the report, or even if he thought it was a close call, I would not do so. But it is not a close call.

The State’s Attorney mentioned Illinois Supreme Court Rule 415(c) and the comment to it. The Rule reads:

Custody of Materials. Any materials furnished to an attorney pursuant to these rules shall remain in his exclusive custody and be used only for the purposes of conducting his side of the case, and shall be subject to such other terms and conditions as the court may provide.

And here is the Comment:

Comment: Paragraph (c). If the materials to be provided were to become, in effect, matters of public availability once they had been turned over to counsel for the limited purposes which pretrial disclosures are designed to serve, the administration of criminal justice would likely be prejudiced. Accordingly, this paragraph establishes a mandatory requirement in every case that the material which an attorney receives shall remain in his exclusive custody. While he will undoubtedly have to show it to, or at least discuss it with, others, he is not permitted to furnish them with copies or let them take it from his office. It should be noted that this paragraph also applies to the State. Nothing in this paragraph should be interpreted to prevent counsel from having tests performed by experts on materials furnished by opposing counsel or from having experts examine reports received from opposing counsel. Tangible objects, such as guns, knives, clothing, not subject to duplication but furnished for purposes of testing, etc., should be returned to the furnishing party when such testing or inspection is completed. If not returned routinely the last phrase permits the court to so order, in addition to any other terms and conditions provided.

After due consideration, the attorney with whom I consulted and I simply do not believe that the Rule prevents me, even if I am considered an attorney on the case, from doing what anybody off the street (First Street, N.W., Washington, D.C., that is) can do – going to the office of the Supreme Court clerk and copying the report from the file of the case and then publishing it. The materials already have become “matters of public availability.” The report was not publicly available until the Court, over the objection of the State’s Attorney, decided that it should be lodged with the Court. But the Court did so decide, and now the report is public. And what I am posting is the actual report I received from the files of the United State Supreme Court.

I have taken my professional responsibility seriously in this matter, and I believe I am free to post the report.

One other point: In my prior post announcing my intention to post the report I suggested that the State’s Attorney’s Office resisted the proposal to lodge because seeing the report undermines points that have been made on their side of the case. The assistant who spoke to me insisted that the reasons cited in their letter of opposition were the real reasons. (That letter, by the way, did not mention confidentiality, nor did it suggest as an alternative possibility that if the report were to be lodged it should be done under seal.) So I want to emphasize that I did not intend to make any suggestion of impropriety. I do believe that it was against the litigation interest of the State’s Attorney for the Supreme Court to see the report, and I also believe it was obvious that the Court should see it. I do not believe that it is coincidental that petitioner’s counsel – also highly responsible and very aware of and conscientious about the strictures of Illinois discovery law – proposed lodging the report and the State’s Attorney opposed it.

Fifth Circuit allows testimony under pseudonyms

Once again I'm writing on the question of where the Confrontation Clause should be treated categorically and where as a balance.

In United States v. El-Mezain, issued on December 7, a unanimous panel of the Fifth Circuit upheld a trial court decision allowing two prosecution witnesses to testify under pseudonym. My former student Patrick Luff, now teaching at Washington & Lee, put me on to an essay on the case by another former student, Jeffrey Kahn of the SMU faculty.) I would not be surprised if, assuming the decision is not vacated by the full court sitting en banc, the case heads up to the Supreme Court.

The case concerns a purported charity, Holy Land Foundation (HLF), that the Government alleges funneled money to Hamas; the defendants are HLF and five individuals. Among the witnesses against them were a legal adviser to the Israeli Security Agency, who testified under the name “Avi” about Hamas financing methods, and a member of the Israeli Defense Forces (IDF), who testified as “Major Lior” to authenticate documents seized by IDF during a military operation. The defense objected, the trial court allowed the testimony, the defendants were convicted, and the Fifth Circuit panel has now affirmed.

Smith v. Illinois, 390 U.S. 129 (1968), seems to stand pretty squarely in the way of the decision. The majority there, per Justice Stewart, said flatly:

[W]hen the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

The panel attempts to avoid Smith first by citing Roviaro v. United States, 353 U.S. 53 (1957), which spoke of “balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense.” But goodness, Roviaro involved the defendant’s attempt to learn the name of an informer, not someone who had testified against him at trial; the confrontation right was not at play.

The panel also tries to suggest that Smith was a balancing case, but that seems to me to be a stretch. The panel is, however, able to point to the concurring opinion in Smith of Justice White, joined by Justice Marshall. He said that,

if the question asked is one that is normally permissible, the State or the witness should, at the very least, come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer, and exercise an informed discretion in making his ruling.

In Smith, he said, that was not done. And therefore, he joined the Court’s opinion, adding that, as he understood it, the opinion was “not inconsistent with these views.” I would have thought the unqualified language of the majority opinion was indeed inconsistent with those views, and that it was sufficiently obvious why the witness, who said he had bought heroin from Smith with marked money provided by police officers, might have felt fearful. But perhaps the Supreme Court of this era will resolve the matter.

Here, it does seem that the Government presented reasons to be concerned about the witnesses’ safety (though I believe that personally I would feel far less protected if I were a Chicago heroin purchaser testifying against my supplier than if I were an Israeli officer testifying against Hamas). It is not clear to me how important the testimony of these particular witnesses was to the prosecution case; Avi was presumably not the only person with the necessary expertise, and Major Lior was not even present at the seizure.

The panel emphasized how much the defense was able to do on cross; it appears to me that this does not meet the concern that other possibilities for discrediting the testimony cannot be pursued.

The panel also gave cursory attention to the possibility that identifying information might have been provided in confidence to defense counsel. Indeed, the panel gave no reason to suppose that any danger could not be avoided by making the disclosure to counsel alone. Compare United States v. Celis, 608 F.3d 818 (D.C. Cir. 2010). The panel did say that such limited disclosure was “unlikely to yield useful information.” It seems to me that this reasoning is precluded by Smith, which quoted an earlier case, Alford v. United States, 282 U.S. 687 (1931), also involving hiding the witness’s place of residence:

It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. . . . To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . .

It seems to me there should be a categorical right to have the information disclosed to counsel, under satisfactory confidentiality protections.

Hardy v. Cross -- Supreme Court decision on required efforts to find an unavailable witness

The Supreme Court issued a summary decision today in a Confrontation Clause case, Hardy v. Cross.

Cross was tried on charges of kidnapping and sexual assault. The alleged victim, referred to as A.S., testified at trial, but in a way that the Seventh Circuit, 632 F.3d 356 (2011), later called “pause-filled and evasive.”. Cross was acquitted on the kidnapping charge but the jury hung on the sexual assault charges. The state declared its intention to retry Cross on those charges, and a date for the second trial was set. Shortly before the trial date, however, A.S. disappeared. The state made several efforts to find her, but without success. At the retrial, the state was allowed, apparently over objection, to introduce A.S.’s testimony from the first trial; a legal intern read in the transcript, apparently without the long pauses that occurred in the first trial and in a “more fluid and inflected” way, according to the Seventh Circuit. Cross was found guilty on two counts of criminal sexual assault, but acquitted on the charge of aggravated sexual assault.

On direct appeal Cross lost on his contention that the state did not make sufficient efforts to secure the live testimony of A.S. at the second trial for her to be deemed unavailable for Confrontation Clause purposes. And he lost in federal district court on his petition for habeas. But he won a unanimous reversal in the Seventh Circuit, undone today by the Supreme Court’s summary and unanimous reversal.

The Seventh Circuit held that the state did not make sufficient efforts to locate A.S., particularly given her importance to the case. The state delayed for a week after learning that she was very reluctant to testify again, and never subpoenaed her. Although it made repeated efforts to find her through the same sources, it never tried some possibilities, most notably speaking to her current boyfriend.

The Supreme Court was unimpressed. There was no reason, it said, to believe that if the state had made any of the attempts cited by the Seventh Circuit the result would have been that A.S. would have testified at the second trial. I wonder about that with respect to the boyfriend. There is no way of knowing for sure, but it does seem to me speaking to the witness’s current boyfriend is a pretty obvious move that shouldn’t be overlooked.

But the bottom line is that the inquiry is ultimately a very fact-intensive one requiring an assessment of good faith. In line with my post of yesterday, The niqab and the structure of the confrontation right, this is a determination that inherently requires balancing; I think it is very hard to state bright-line rules here. (That doesn’t mean there are none; if the state knows where a witness is and ihttp://www.blogger.com/img/blank.gift can invoke a formal procedure to secure her presence, then it should do so; this is Barber v. Page, 390 U.S. 719 (1968), and maybe that’s irrespective of the importance of the witness. But this case involves efforts to find a witness, and it’s much harder to state absolute rules as to what the prosecution needs to do.)

And this case, in any event, came up on habeas, which means that a deferential standard of review applies, a consideration that the Supreme Court emphasized; I suspect this factor contributed to the unanimity of the opinion.

And by the way – the Court cited the discussion of unavailability in Roberts, which resembled this case in some respects. I’ve always thought that in Roberts the state should have made more efforts than it did. But, Crawford notwithstanding, there has never been any doubt that this aspect of Roberts remains good law. For all the general discussion in Roberts, the decisive issue in the case was whether the witness should be deemed unavailable, and that would still be true if the case were decided under Crawford.

The niqab and the structure of the confrontation right

A few years ago, I posted a couple of messages on the issue of whether Muslim women should be allowed to testify while wearing a niqab, covering the face except for the eyes. One concerned a Canadian case, and the other commented on the adoption by the Supreme Court of Michigan of a rule, unfortunate in my view, meant to authorize trial judges to preclude witnesses from testifying while wearing the niqab. My former student Felix Chang has informed me about this link to a discussion on the public radio show The World of the Canadian case, which is now pending in the Supreme Court of Canada.

My feeling remains that a witness who has a conscientiously religious-based reason for wanting to testify while wearing the niqab ought to be allowed to (whether or not wearing the niqab is an actual religious command), but witnesses ought not to be allowed to testify under such a cover out of mere personal preference.

This highlights a broader issue of the framework of the confrontation right. In some respects, as Crawford indicates, the right is categorical, but in other respects, even after Crawford, it is flexible, subject to balancing.

An accused has an absolute right to be confronted with an adverse witness. Assuming the accused has not forfeited the confrontation right, if admitting a statement would amount to allowing the witness to testify against the accused, then it may not be admitted absent an opportunity for confrontation – and it does not matter how expensive or difficult it would be to bring the witness in or how important the testimony is to the prosecution or how little value it appears that confrontation would have. In these respects the right is absolute.

But if the witness has had an opportunity for confrontation, then the question of whether the witness has to be brought in to trial depends on a balance of numerous factors. How difficult or expensive would it be to bring the witness in? How important is the testimony? How significant is any information that the accused may have learned since the earlier examination and that would assist the accused in cross-examining at trial?

I also think that forfeiture involves various questions of balancing. For example, how much pressure should be considered sufficient intimidation to warrant a determination that the accused forfeited the right? Also, if, as I believe, in some cases the government has a responsibility to take reasonable conduct that might mitigate the problem created by potentially forfeiting conduct, then there will often be a question of balancing; for example, should the government have arranged for a deposition of a witness who lingered for a considerable time before dying of wounds inflicted by the accused?

Similarly, some aspects of what constitutes confrontation are absolute. Putting aside the case of children and the question of whether Maryland v. Craig survives Crawford, the accused has an absolute right (again, subject to forfeiture) to be in the same room as the witness when she gives her testimony. But how close is a matter of balancing. The extent of questioning allowed also must be a balance – for example, how long and how intrusive the examination may be.

And I don’t think the confrontation incorporates an absolute requirement that the witness wear clothing meeting the norm of any particular time and place. Bear in mind that the accused doesn’t have an absolute right for the trier of fact to observe the witness’s demeanor; transcripts of prior testimony have long been acceptable in cases of unavailability. I don’t believe a witness should be allowed to cover herself up simply for personal preference. But given a well-established practice based in religious belief, it seems to me like a pretty easy case.

The Cellmark report

Because the Cellmark report was never formally introduced at the Williams trial, it was never made part of the record. But it is, of course, at the center of the case before the Supreme Court. (One might call it the Hamlet of the Supreme Court case.) Several weeks ago, Williams’ counsel wrote to the Court proposing to lodge copies of the report with the Court. The state objected. What could have motivated the state to do so? I suspect that worries about the bounds of the appellate record were not at stake. I suspect, rather, that the state recognized that actually seeing the report would undermine any arguments that the report was insufficiently formal to be considered testimonial, that the key information was simply machine generated, and that it could be considered circumstantial evidence of the perpetrator’s profile. The Court approved the lodging last week, and the report is now on file with the Court. Given that it is now a public document, I intend to post it next week. I can’t do so just yet, largely because of mechanical issues but also because I first want to clarify a few factual points. But I do think that seeing the report will help clarify that Lambatos took a human-produced statement of a genetic profile, which she could not have generated on her own, and used it to say that Williams was the perpetrator.

Cellmark's record

I have no doubt that Cellmark runs very proficient labs. But blog reader Patsy Myers points out that if you do a search for "Cellmark falsified evidence" you come up with a pretty substantial set of problems that they have encountered in the past. For example, the company has not been immune to professional misconduct affecting multiple cases.
And consider one case in which a Cellmark analyst discovered an error while testifying in court. Apparently, Cellmark diminishes the importance of this episode by pointing out that it did in fact correct the error!

Of course, reliability is not -- or at least certainly should not be -- the point. But the fact that Cellmark has a substantial history of difficulty should, I think, give some pause even to those who are ready to make accreditation a substitute for the confrontation prescribed by the Constitution.

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.

Thoughts on the brief of the New York DA and OCME in Williams

I am going to try over the next several days to post (rather belatedly) a series of entries analyzing some of the arguments made by the state-side briefs in Williams. I’ll begin with the brief filed on behalf of the New York County DA’s Office and the New York City Office of the Chief Medical Examiner (OCME); I’ll refer to this as the New York brief. I’m beginning with this one because it probably makes the most extravagant claims of all the state-side briefs. It is in large part an attempt to scare the Court into thinking that if Williams wins this case prosecution use of DNA and some other types of forensic evidence will become unfeasible. That’s just not true.

A. The brief goes into depth to show the number of technicians that, in some labs, work on a DNA sample. A few responses:

(1) The brief simply mischaracterizes the position taken by, and in support of, petitioner as an “all-technicians-must-testify” rule. Williams contends for nothing of the sort. The Confrontation Clause only applies to testimonial statements that are in some way presented to the tier of fact. (I say “in some way” because there can be a confrontation problem without formal introduction of the statement; I’ve discussed this issue in other posts and will again.)

So consider the stages of DNA analysis discussed in the brief, p. 7:

(a) Examination: A technician “examines the sample and takes cuttings for DNA extraction.” There’s no testimonial statement there – examining and cutting do not constitute a statement.

(b) Extraction: A technician adds reagents to the sample. Again, no statement.

(c) Quantitation: A technician measures the amount of DNA. Presumably this technician reports on that amount. But even assuming that this report is a testimonial statement, there’s no need for it to be presented to the trier of fact. The witness who reports on the profile found in the later part of the process does not have to convey to the trier of fact or even rely in her own testimony on the results of this stage; we know from the fact that a DNA profile was ultimately found that there was enough DNA to perform the analysis.

(d) Amplification: A technician copies specific portions of the DNA to raise them to sufficient levels for testing.

(e) Electrophoresis: Here at last we have the performance of the test that matters. A technician who performs this test must report on the results. That report, in a case in which the test is clearly performed for forensic purposes, is a testimonial statement, and it provides the essential information that the prosecution needs.

So even assuming Williams wins and some labs continue to adhere to the procedure described by the New York brief, the Confrontation Clause would say nothing about most of the technicians involved in that procedure. As a check on this, try this thought experiment: Assume for the moment that Williams wins this case. Does anyone think that the signatories to the New York brief would be proclaiming that all the technicians in this procedure would have to testify?

I have not said anything here about chain of custody. So long as a witness speaks only about what she knows from personal knowledge, chain of custody is not a confrontation problem per se. Melendez-Diaz makes clear that as an initial matter it is up to the prosecution to decide what witness's statements it wishes to present to establish the chain of custody. If the gaps in the chain are too great, there may be insufficient proof, and at some point that could be a due process violation. But reasonable inferences can bridge some substantial gaps. And I don’t believe the sample needs to have been sitting still during those gaps; technicians may have performed procedures on it other than letting it change naturally over time.

(2) Given modern DNA techniques, retesting is virtually always a possibility. Neither the NY brief nor any other brief on the state side gives any reason to suggest that it would not be routinely possible in a case like this one. Only a small minority of cases go to trial; in a given case, if the original technician could not conveniently testify at trial, a technician better placed to do so could retest the sample without adding great expense.

(3) The Sixth Amendment does not incorporate the Cellmark protocol. Much of the New York brief reads as if Confrontation Clause jurisprudence must take as given the procedures such as those used by Cellmark in this case. But other labs use different procedures. Note, for example, that only one technician from the Illinois State Police lab did the test on the blood sample taken from Williams. The Michigan State Police lab rarely involves more than three people in a given lab test.

Of course, such vertically integrated procedures might not be as efficient as those used by Cellmark. But bear in mind that the Cellmark procedures were designed with little or no much regard to the confrontation rights of the accused. It is hardly surprising that procedures designed without that constraint would be more efficient than procedures subject to it.

Neither the New York brief nor any of the other state-side briefs suggest any reason why states that do not already operate under constitutionally satisfactory procedures cannot emulate states that do.

B. Neither does the Sixth Amendment incorporate New York evidentiary law. The New York brief says, p. 9, that under New York law the prosecution only has to present the analyst who compared DNA profiles. But note the consequence: No witness with personal knowledge testifies to the facts underlying the comparison. In my amicus brief, I presented an analogy to which no one on the state side has responded: An expert witness testifies that someone else (who does not testify in court) has given him a description of the assailant, and in the expert’s opinion that description matches the accused. Plainly that would not be allowed, assuming the description was given in contemplation of use in prosecution. That hypothetical actually is more than analogy – it is exactly what happened here, but the description, instead of being the more familiar characterization of features, was a statement of the genetic identity of the assailant.

C. Nor does the Sixth Amendment incorporate Fed. R. Evid. 703, a creation of the late 20th century. Invoking the language of that Rule, the New York brief refers, p. 15, to the dangers of “a constitutional rule that would preclude a testifying expert from reasonably relying on information provided by others.” Of course, no one is contending for such a general rule. But I doubt that even the authors of the New York brief would have the effrontery to contend for the opposite rule – that there is no constitutional constraint on an expert’s relying on information provided by others so long as a court can characterize the reliance as reasonable.

Again, there is no confrontation issue unless the underlying statement is both (a) testimonial and (b) conveyed in some manner to the trier of fact. I think that in light of Melendez-Diaz and Bullcoming, the Cellmark report here must clearly be considered testimonial. And in this case, I think it is clear that substance of the statement was conveyed to the trier of fact: The in-court witness testified that Cellmark deduced a male DNA profile from the vaginal swab, and that this profile was such that both she and a computer program matched it to Williams’s acknowledged profile. Whether there is sufficient communication of the statement in other situations – say, where the in-court expert relies on information she learned in a testimonial statement but does not disclose it – is an issue the Court need not reach here.

D. The New York brief suggests, p. 12, that “if there were an all-technicians-must-testify rule, no competent defense attorney would stipulate until she had assured herself that all of the technicians who worked on the defendant’s case were available to testify.” Well, first, of course, the premise is wrong – again, no one is contending for such a rule. And, as indicated above, whatever burden there is on coming to court is mitigated by vertical integration. But beyond that, all the attempts at creating a scare continue to ignore the fact that states that have always played by the rules for which Williams contends have not found this to be an insuperable burden. Why not? I do not deny that sometimes defense counsel plays this game, but often they realize it is more likely to do harm than good. For example, they may recognize from experience that the prosecution will do whatever it takes to ensure that any necessary lab witnesses appear. And often they understand that their chance of reaching an acceptable plea bargain will be substantially impaired if they’re perceived as game-playing in hopes of imposing costs on the prosecution. (In his Melendez-Diaz dissent, Justice Kennedy argued that it would be unprofessional for counsel to waive a client's rights for fear of incurring judicial displeasure; I am putting aside the possibility that counsel would act in that way.)

E. The New York brief also suggests, p. 10, that adoption of an “all-technicians-must-testify” rule – same flawed premise – might “force the OCME to reduce the amount of DNA testing it conducts, and force prosecutors to forego forensic DNA analysis in cases where it might be highly probative.” Oh, really. Requiring New York to adhere to the Constitution, as other states do, might cost it more money, but it’s not going to cause the state to forgo use of this powerful and efficient tool. The New York brief offers no basis for concluding that states that use constitutionally proper procedures rely on DNA evidence less than states that do not. And, as Jeff Fisher emphasized at a conference at Brooklyn Law School last month, the Confrontation Clause says nothing about police and investigative procedure, but only about the procedure for presenting testimonial statements at trial; a Supreme Court decision will not diminish the authorities’ desire to identify the actual assailant, nor will it diminish the ability of DNA testing to do that.

E. In my amicus brief, I pointed out that an in-court expert could rely on non-testimonial statements by lab technicians. I suggested, for example, that the report of a routine blood test would not be testimonial unless the testifying analyst announced gratuitously that she was seeking the information for prosecutorial purposes. The New York brief scoffs at this position. P. 16 n.10. It points out that at autopsies the OCME relies on tests from various sources, such as metabolic testing from NeoGen Screening. So, it asks, does the medical examiner have to hide her purpose from the NeoGen technician, and what if that technician figures it out? And is the defendant entitled to a hearing on the matter? The brief announces that merely to ask these questions shows that my position should not be the rule. Well, I disagree.

I’ll address the last question first – the accused is always entitled to whatever procedure is necessary to resolve a Confrontation Clause objection. But the trial court does not have to rely on admissible evidence in resolving that matter.

Assuming that the metabolic test is the type of thing that the NeoGen technician does as a regular matter principally for non-forensic purposes, and assuming that the technician doesn’t know that in the particular case the test is for forensic purposes, then, yes, I’d say it’s not testimonial – and I would bet a lot of money that, if the question were actually decisive in a case rather than something to be waved around for scare purposes, the OCME would vigorously advocate this position. And it does seem to me that if in fact the technician learns that the particular test is to be used for prosecutorial purposes, then it does become testimonial, so if they like the OCME and NeoGen can devise blind procedures. (Such procedures are a standard part of some scientific techniques.) But hey, if you don’t like my standard, then go for another. Here's one possible option: if a given type of report is usually or non-prosecutorial purposes then it is not testimonial even if in the particular case it is sought for such purposes and the author of it knows this. That rule would, in my view, be well sub-optimal – but it would do a lot less violence to the confrontation right than the positions advocated by the New York brief.

Ultimately, though, if in a murder case – the type of case in which an autopsy is usually relevant – a lab technician performs a test and writes a report on it knowing that it is likely to be used in prosecution, and before the accused is convicted of murder that technician is required to testify live rather than simply mail the report in, this does not strike me as a terrible result.

Finally, a general word. When Crawford was decided, I had hoped, naively, that most prosecutors would say, “OK, it makes sense that, when I want to use against an accused a statement that the person made understanding that it would be used for that purpose, I have to bring that person to trial. Let’s see how I can do this most efficiently.” And some good prosecutors and forensic lab directors have indeed taken that attitude. The New York County District Attorney’s Office is a good prosecutor’s office; if you didn’t know that, they announce it on p. 1 of their brief. Unfortunately, their attitude mirrors the one that most prosecutors have taken every step of the way since Crawford – “Let’s see how we can minimize this thing so that we have to present as little live evidence as necessary and change our way of doing things as little as necessary.” I think it’s very unfortunate that this brief uses persistent scare tactics in an attempt to achieve that result.

Anticipating the Williams argument

Williams v. Illinois will be argued on Tuesday. Here is a link to a piece on it by Erwin Chemerinsky, and here is a link to an Op Ed piece in the New York Times by Jeff Fisher. I think Chemerinsky accepts too readily prosecutors’ predictions of difficulties that would be created by a win for Williams, and he fails to take into account the fact that numerous states have long operated without undue difficulty under the regime that Williams seeks to establish as a matter of constitutional law.

This week, SCOTUSblog is featuring discussion of various topics related to the Confrontation Clause. (I’ll be contributing something Wednesday on whether the testimonial approach to confrontation is correct and preferable to the “indicia of reliability” approach of Roberts. I think I’ll answer in the affirmative.)