Tuesday, June 19, 2012

Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited

Here is a first installment of preliminary thoughts on Williams. Obviously, I think the result is unfortunate; I think Williams should have won. But the damage to the Confrontation Clause may be much less than I might have guessed it would be given the result. This posting will simply focus on four reasons why that is so.

Splintered Court

First, to state the obvious, there is no majority opinion. The case appears to stand for nothing more that the proposition that in the circumstances of this case there is no Confrontation Clause violation. And, as Justice Kagan emphasizes, repeatedly and usefully, five Justices reject the rationales stated in Justice Alito’s opinion, clearly and decisively. That opinion, like the dissent in Melendez-Diaz, contains some assertions that would seriously undercut the Confrontation Clause if they became law. But only the Melendez-Diaz dissenters sign on to that opinion. Predictions that Justices Sotomayor or Kagan would go over in the circumstances of this case were not borne out, and Justice Kagan wrote an excellent, refreshing dissent.  

No Plausible Alternate Explanation

Second, Justice Alito rightly seizes, repeatedly, on a circumstance that is helpful to him, and the prominence he gives to it suggests that for at least one member of the plurality it may have been decisive. This case was not like Melendez-Diaz, Briscoe, or Bullcoming, in which the questions were how much, if any, of a bad factor (cocaine, blood alcohol) was present in a given sample; in those cases, one can imagine a lazy, incompetent, or dishonest analysis helping the prosecution by simply saying, in effect, “A lot.” In this case, by contrast, Cellmark was presented with a crime scene sample and reported a DNA profile that, as it turned out, matched a person against whom there was significant other evidence. As Justice Alito points out, Cellmark had no reason to suspect Williams, and no other source, so far as we can tell, for knowing Williams’s profile. So the chance of Cellmark coming up by chance with a DNA profile that happens to match a guy in the vicinity and one against whom there is, at least in the end, substantial evidence, is really infinitesimal.

This is not simply a matter of saying that the Cellmark report is reliable. I’ll make the point by drawing on an analysis I made decades ago, Route Analysis of Credibility and Hearsay, 96 Yale L.J. 667, 682-83 (1987), of an old case, Bridges v. State, 19 N.W.2d 529 (Wis. 1945). Bridges was accused of molesting a young girl. The girl made a statement to her mother describing the apartment where the incident occurred. The description closely matched that of Bridges’s apartment, and let’s assume that, taken in conjunction, the set of features that she described was highly unusual. Let’s also assume that she didn’t testify and that there is no reason to suspect that she was in the apartment on any occasion other than the one in question. The statement might appear to be offered for the truth of what it asserts – that the girl was in (and molested in) a room meeting the description that she stated. But now let’s say that instead of stating that she was in a room of that description, she came home from school with a story she wrote featuring a room of that description Clearly, the story is not offered for the truth of what it asserts. And yet, if the description is sufficiently odd, but matches the accused’s apartment, it has substantial probative value. Given that the child was not in the apartment on any other occasion, the fact that she put together the odd conjunction of features may be powerful evidence that she was in the apartment on the occasion in question – even if she is not regarded as a reliable witness.

So now let’s bring this back to a DNA case. Suppose (1) a crime scene sample is sent to a lab, (2) the lab sends back a piece of paper bearing the case number for that sample and a set of numbers that, it turns out, match the DNA profile of a given person, (3) the lab was not given that person’s DNA profile, and (4) there is substantial other evidence suggesting that that person left DNA in the crime scene sample. I believe all of these facts were true in Williams. In these circumstances, I think the prosecution probably should be allowed to present that piece of paper and say, in effect, “I’m not asking you to rely on the proficiency of this lab. But there’s no plausible way in these circumstances that the lab could have come up with those numbers unless Accused left his DNA in the crime scene sample and the lab did an accurate DNA test on the sample.”

That’s not the way the evidence was presented here, and so I still thought Williams ought to have won. My point now is simply that this set of circumstances was sufficiently important to the Alito group that he cited it three times; absent it, the case might (and should) have looked very different to one of that group.

Identity of the Fact-finder

Justice Alito indicates that the foursome might have viewed the case differently if the fact-finder were a jury. The other five properly wonder how the identity of the fact-finder can affect a Confrontation Clause issue. As I understand it, Justice Alito’s response is in effect this: There was an OK way that a fact-finder could use the Cellmark information, as supporting the expert’s opinion (I don’t agree, given the presentation of the information, but that’s a subject for another post), and a bad way, which would violate the Confrontation Clause. There’s a substantial chance that a jury would fail to draw the distinction, but a trial judge can do it. I think it probably hurt Justice Alito to have to make the concession, acknowledging that instructions might not be a satisfactory cure here, but it may have been the price of keeping the four together. Of course, one of the difficulties here is that the supposed distinction between admission for the truth and admission in support of the expert’s opinion is non-existent when the statement supports the opinion only if true. Five justices recognized this point.


As I understand Justice Thomas’s opinion, the case would come out differently if the report had been certified. Let’s put aside for the moment the merits of that view. (I don’t think there are any.) My understanding is that as of now the laws of some states purport to allow lab reports only if sworn or certified, or somehow made what even Justice Thomas would regard as sufficiently formal to come within the Confrontation Clause. So where this is true, even if the facts are otherwise identical to those of Williams, it appears the case comes out differently. Those state laws might be changed, of course. If a given state removes its requirement of formalization, for the obvious and presumably stated purpose of making the lab report admissible, would Justice Thomas then say that this is the type of evasion he has previously, and again in Williams, said cannot be made to avoid the Confrontation Clause? I wouldn’t hazard a prediction.


Anonymous said...

What do you make of five justices rejection of the "not-for-truth" argument? In future cases which involve an expert conveying clearly testimonial statements of a declarant whom the defense has clearly not had the opportunity to cross-examine, will Williams finally preclude prosecutors from arguing that the statements aren't being offered for their truth, but merely to explain the basis of the experts' independent conclusions?

Anonymous said...

What do you think happened to Kennedy's Hamlet? Was his questioning during argument all show? Do you think horse trading of votes was involved?

Andrew Fine said...

(from Andy Fine)

Professor, do you think that Thomas' concurrence has some precedential significance as stating the narrowest ground for the judgment, a la Powell's concurrence in Bakke?

Asher said...

For my part, Andrew, I would, at first, have said yes. It is narrower than Alito's plurality, and going forward, unless the dissenters start voting differently every case is going to be decided on the basis of whether Thomas thinks a report is sufficiently formalized. So when looking at a case and predicting what the Court would do, which is one way of getting at what Williams stands for, shouldn't you just look at Thomas? On the other hand, Thomas first advanced this view in his dissent in Hammon, the companion case to Davis, and he lost that fight 8-1. So how can his solemn and formal test be the law now?

LJS said...

Let me take issue with your assertion (and the plurality's) that " the chance of Cellmark coming up by chance with a DNA profile that happens to match a guy in the vicinity and one against whom there is, at least in the end, substantial evidence, is really infinitesimal"

The only evidence the Supreme Court offers is a line-up ID made in 2001. It writes: "Thus, the fact that the Cellmark profile matched Williams-the very man whom the victim identified in a lineup and at trial as her at- tacker-was itself striking confirmation that the sample that Cellmark tested was the sample taken from the victim's vaginal swabs." (Alito Slip at 21) and "And given the complexity of the DNA molecule, it is inconceivable that shoddy lab work would somehow produce a DNA profile that just so happened to have the precise genetic makeup of petitioner, who just so happened to be picked out of a lineup by the victim. The prospect is beyond fanciful." (Slip at 32-33)

This is a line-up ID made in 2001. I think we can assume it was neither blind, nor sequential, and likely did not use many, if any, of the basic cautions against tainting the witness the Department of Justice recommened in its Eyewitness ID guide in 2001. Worse, this ID comes from Chicago. To quote Dr. Wells reflecting on the badly-flawed 2006 Mecklenburg study showed that "In fact, for the Chicago and Evanston lineups, the rate of filler identifications for the non-blind simultaneous lineups is zero! And yet, field studies involving eyewitnesses to actual crimes has generally shown filler identification rates of around 20%." (Wells, comments on the study available at his website).

The opinion utterly ignores the risk that the detectives, who knew about the DNA hit, inadvertently tainted the witness' ID. There's no basis here to say it is an independent confirmation and some reason for concern.

Richard Friedman said...

In answer to a couple of these: I suspect that Justice Kennedy was playing Hamlet himself a little bit. I think he was disturbed by the non-production of the evidence, but not enough to overcome his visceral dislike of Melendez-Diaz.
It doesn't seem to me that Thomas's opinion is narrower; it's just different. His rigorous formality test would apply in all sorts of settings -- including, as Asher indicates, in Hammon. I think the narrow holding is that when you have a non-certified report of a DNA profile, and the lab that did the testing was not given the profile ahead of time, then the report may be used by an in-court expert to declare a match.

LJA said...

Let me also note that the only DNA database searched was an Illinois state database, not a national database like CODIS. The plurality writes "Sandra Lambatos, a forensic specialist at the ISP lab,conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to a profile produced by the lab from a sample of petitioner’s blood that had been taken after he was arrested on unrelated charges on August 3,2000." (Alito Slip at 5) By definition, the sample is a mixture (both victim and culprit's DNA), which creates some risk of bias. See Dror & Hampikian, Subjectivity and bias in forensic DNA mixture interpretation, 51:4 Science & Justice, 204 (2011).

The defense could cross examine Lambatos about this conclusion, so it is not key to the confrontation clause issue, but again, I don't think the match to someone in Illinois is all that significant if only an Illinois database was searched.

pv said...

I disagree (with you and Justice Kagan) that there is "no majority opinion."

Going forward, the most important portion of Alito's opinion is Part IV.

In Part IV, four justices set forth two characteristics that must be met before hearsay can be barred by the CC: The statement must (1) have the "primary purpose" of "accusing" a "targeted" individual of "criminal" conduct, and (2) be "formalized," like "affidavits, depositions, prior testimony, or confessions" (slip op., at 29).

Going forward, the most important portion of Thomas's opinion is Part II.

In Part II B, Thomas clearly states what he believes is required before hearsay can be barred by the CC: (1) The declarant must "primarily intend" to establish some fact with the understanding that his statement may be used in a criminal prosecution, and (2) The statement must facially exhibit "formality and solemnity" (slip op., at 11).

Thus five justices agree that formality is required before hearsay can be barred by the CC. Indeed, Justice Scalia himself previously stated that formality was an essential pre-requisite.

I do, however, agree with you (and Kagan) that there is no majority opinion regarding whether the plurality's "primary purpose" test or Thomas's (broader) "primary intent" test governs.

Thus, what we are left with (and to answer Andy Fine's question) as the "narrowest" ground for the judgment concurred in by five justices is the requirement of "formality."

While it is true that, going forward, the "formality" requirement may be irrelevant in those states that require lab reports to be sworn or certified, it is of potentially huge significance in many other scenarios, including the Hammon and Giles situations where the declarants provide "informal" statements.

Finally, another significant issue that the plurality highlights is that there will be no federal constitutional bar to the admission of unreliable nontestimonial hearsay. (cf. footnote 8 and the citation to Perry v. New Hampshire). Any bar to admission of this category of evidence will have to be found in evidence law or state constitutions.

Richard Friedman said...

In response to LJA's comments: I certainly recognize the flaws of a lineup identification, and htat would be a flimsy basis on its own for conviction. But the chance that without actually analyzing Williams's DNA, Cellmark would come up with a profile that matched a male in the Chicago area who in terms of age, height, race, etc., was sufficiently in the ballpark for the victim to identify (and who, as it happened, had a prior record of sexual violence) is very, very small. It doesn't matter that they only checked an Illinois database. If they had checked a national one it almost certainly would not have turned up other matches -- and it would have turned up this one.

Asher said...

But pv, the stuff on p. 29 about formality is just dictum. All that the plurality says there is that all the violations the Court has found since Crawford have involved formality - except Hammon, which they proceed to say fell afoul of their primary purpose test. They don't say Hammon's wrong, though perhaps they hint at it. For formality to really be the rule across the board, wouldn't they have to say Hammon was wrong?

LJS said...

This opinion says nothing about height, age, or prior record. I'm complaining about Alito's reasoning.

The underlying opinion, People v. Williams, 895 N.E.2d 961 (2008), does mention an initial description by the victim at the hospital, which gives height and race, but not age. I don't see a mention of the defendant's height. The Cunningham's dissent also mentions that the victim initially identified someone else as her assailant. The underlying opinion mentions prior convictions, but Alito doesn't use those for his analysis. I can't tell to what extent the ID was challenged at trial. It doesn't seem to have been an appellate issue, so hard to tell how strong it is. But again, I'm troubled by relying on it as independent corroboration of the DNA.

Remember this is a DNA mixture not a single source sample. We don't know if a CODIS search might have produced other candidates -- all we know is that Lambatos said she had a match to this defendant. We don't know if there were other candidates suggested by the software or if had a national search been done other candidates would have come up that would have be equal or better possibilites -- had you seen the LATimes story about the duplicate matches in the Arizona database?

Again, I'm concerned that Alito's theory that there's little risk of mistake is less than it seems.

pv said...

Asher, the plurality does not expressly state that Amy Hammon's informal statement was not barred by the CC, as Thomas had argued in his dissent, because, as noted in footnote 13, that holding was "not challenged in this case."

However, if you want to attempt to decipher how CC doctrine will develop in the future (so that you can properly apply it today) you can't ignore the facts that five justices require "formality" and Amy's first statement was (according to five justices in Williams) "informal."

Asher said...

But five Justices do not require formality. All they say is this:

The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) [primary purpose] (b) they involved formalized statements such as affidavits,depositions, prior testimony, or confessions.

That's just a past-tense description of prior holdings, one which they quickly acknowledge is belied by Hammon. What all the post-Crawford cases have in common, they say, is primary purpose. Then, in IV-C, they proceed to apply the primary purpose test, and only the primary purpose test, to the Cellmark report. If formality were a part of their rule, part II-A of Thomas's opinion would be a majority, or at the least, the plurality would apply formality to the lab report.

As to footnote 13, I think it's about the cases in which the plurality dissented, M-D and Bullcoming.

mredle@sheridancounty.com said...

Professor F:
With respect to the "No Plausible Alternate Explanation" comment, I would suggest that you and perhaps Justice Alito may have missed the point for purposes of Confrontation. The point it seems is that Cellmark sent the Illinois Lab a report and testing data. Using the testing data an expert in Illinois (defense or prosecution expert) could look at that testing data and reach certain conclusion about whether the testing took place within permissible parameters. They could determine whether appropriate controls were utilized and were within an appropriate range for valid testing. From looking at the data they could reasonably interpret whether there were signs of any of the well known forms of testing artifacts that might be incorrectly identified as a meaningful piece of data. Most importantly, as happened here, the expert witness could testify that the DNA profile from the questioned sample matched that of the DNA profile of a known sample. Assuming that an earlier witness has identified the donor of that known profile (the defendant, Williams), the expert based upon well known principles of genetics and statistics could then compute the probability of some one other than the defendant "matching" that profile at random among the general population as expressed by reference to multiple population databases. The point for purposes of Confrontation should be the ability of the witness to reach those conclusions from looking at the data. To borrow Justice Scalia's analogy of the clock face - the data is the face of the clock, the internal workings of the thermalcycler or the capillary electrophoresis are like the internal workings of that clock, from which no witness inside the clock could tell the time of day.

Matt Redle

pv said...

Asher, your assertion that the plurality does not require "formality" is also belied by the following language from page 3 of the opinion:

"[E]ven if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach."

Perhaps Prof. Friedman will chime in on whether he believes 5 justices require "formality," despite his aversion to that concept?

Deborah J Merritt said...

On first read I thought Justice Alito's circumstantial argument ("how else would the lab have generated this profile?") had some force. But then I remembered that Illinois regularly sent samples to Cellmark. If Cellmark made a mistake, the most obvious one would have been to mix up samples sent from Illinois.

So the fact that Cellmark generated a report that matched Williams' DNA suggests only that Cellmark received some sample containing Williams' DNA. He might have committed a different Illinois crime generating a tissue sample, might have been the innocent bystander at another Illinois crime, might have had consensual sex with an Illinois woman who was raped by a different man, etc.

The fact that Cellmark generated a report matching Williams is strong evidence that they received some sample containing Williams' DNA--but I don't think that's particularly strong evidence that the tissue came from this crime. Some evidence, yes, but not the conclusive, no-other-logical-way evidence that Alito suggests.

Asher said...

I don't think that sentence means much of anything. The "difference" as they see it, as they immediately go on to explain after the sentence you quote, is that Williams wasn't a suspect at the time the report was made; therefore, the report wasn't made for the purpose of accusing a targeted individual, Williams. Like I said, if formality were a part of their rule, it would have been very, very easy for those four Justices to join the part of Thomas's opinion that applies his formality rule to the report - or, for Alito to apply formality to the report, allowing Thomas to join some part of their opinion. Surely they'd form a majority on some question if they could. The reason that they couldn't get Thomas to sign any part of their opinion, or bring themselves to sign any part of Thomas's, is because they did not want to make formality the rule. Maybe in the future they'll make that tactical move, thereby allowing states to get as much labwork as they want so long as it's not certified, but at the moment there are three members of the Alito plurality who joined Hammon - Roberts, Breyer, and Kennedy - and I doubt they'd all make that leap when none of them buy the distinction.

Anonymous said...

Another problem with Alito's argument that the fact there was a match made was strong circumstantial evidence is that Lambatos acknowledged the presence of peaks in the electropherogram that did not corrispond to either the victim's or William's profile and that were not included in the deduced male profile. If any of the peaks turned out to represent alleles present the offender's profile, Williams would have been excluded as a suspect. While sample degredation would show up on the electropherogram, one generally cannot identify an improperly amplified sample without looking at the controls. So the match is only circumstantial evidence is one assumes the accuracy of the deduced profile, which seems a bit circular. While Lambatos opined that at least one of the peaks was probably noise, since she was not involved it testing and did not review the positive and negative controls, she was not really in a position brush off the peaks.

Anonymous said...

GJS RETIRED PROSECUTOR: Let us take a common child abusive head trauma case. The state's child abuse expert testifies on the basis of reports from the pediatric radiologist, opthamologist, and neurologist all from the same hospital. Must the state call the specialists? What if the expert from a small hospital sends the MRI, CT or x-rays to be read or interpreted by an experienced pediatric radiologist? What of all the tests and other experts consulted to rule out other explnations for the child's injuries? Gary Schuster

Anonymous said...

The issue isn't what the expert bases his or her opinion on, it is what statements are presented to the trier of fact. The CC only requires the opportunity to cross those whose testimonial statements are introduced at trial against the defendant. So, turning to your examples, the CC would not require any of the consulted experts to testify at trial unless the prosecution chose to introduce their statements, and those statements were testimonial. I don't think an expert witness triggers the CC by simply stating, "after consulting with other experts, I have come to the opinion that . . ."

Bob Strain said...

If Smith v. Florida [SC09-10755) makes tomorrow's Order List, it may help explain any impact of Williams. Smith had a jury trial and was the target of the FBI's DNA testing.

jutlog said...

Professor stated:

"I think the narrow holding is that when you have a non-certified report of a DNA profile, and the lab that did the testing was not given the profile ahead of time, then the report may be used by an in-court expert to declare a match."

Wouldn't this swallow Melendez-Diaz and Bullcoming in all but a narrow set of cases?
That is, the most common use for a lab is either toxicology or contraband detection. The DEA can, for instance, provide "anonymous" samples, that is, samples with an identified suspect, and request an examination for contraband. That would fall under this ruling would it not? All law enforcement would have to do is remove any indication of a suspect from the requests and make the lab report "not solemn".

Richard Friedman said...

I think those would be significantly different cases. The key point in Williams, emphasized over and over by Alito, is that the lab had no idea what profile would help or hurt the prosecution -- or even be a profile of an actual man with access to the crime scene. It's different if you have, say, a toxicology test, where the lab might well know what kind of results would help a prosecutor. Depending on the case, Alito might still say that in the latter case it's not testimonial because it doesn't address a "targeted individual" -- but five justices reject that view.

Anonymous said...

Given that 5 justices rejected the "not of its truth" rationale for allowing expert basis evidence in under FRE 703, should 703 now be treated as a hearsay exception?

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