Friday, September 30, 2011

A nice decision in a Williams-like case

Yesterday, the Court of Appeals of Maryland issued its decision in Derr v. State, 2011 WL 4483937, a case very similar to Williams. This is a very useful opinion, rejecting numerous theories offered by the State that we may see once again in Williams. The court rejects the theories that

-- the reports on which the in-court expert based her opinion were not statements because they were machine products;

-- they were not testimonial statements;

-- there was no Confrontation Clause violation because the reports were not admitted (see the discussion in footnote 14, endorsing an argument made in this blog in a post titled Initial thoughts on Williams);

-- there was no Confrontation Clause violation because the in-court expert offered her own independent opinion; and

-- this result poses a serious problem with respect to old cases.

Two judges dissented in part, relying heavily on the state supreme court decision in Williams.


pv said...

Prof. Friedman,

In a previous comment (to your September 15, 2011 post) you concede that "performance" of DNA testing is not a "statement." (see your comment at 2:07 p.m.)

But the majority in Derr state that DNA "testing procedures" are "statements" by the person(s) conducting the DNA profiling. Thus, according to the Derr majority, "performance" of DNA testing, in and of itself, is a "statement."

How can you describe Derr as a "nice" decision when the court directly contradicts your opinion regarding whether DNA testing, by itself, constitutes a "statement" for purpose of CC analysis?

It seems as though this issue (of whether performance is a statement) will be very important in Williams: If human performance of DNA testing, by itself, is not a CC statement (as you concede), than the computer/machine-generated graphs/charts that are the end result of that human conduct are, a fortiori, not CC statements. And reliance upon those graphs/charts (i.e., DNA profile) by an expert as the basis for her opinion that they match the defendant's DNA profile does not raise any CC concern.

Obviously, the prosecution can't rely upon any "statements" by the absent analyst to establish that the nonhearsay graphs/charts relied upon by the expert are connected to particular items of evidence (from the victim). But, if the prosecution can establish that nexus without reliance upon any hearsay statement -- as was the case in Williams -- the CC is not violated, right?

Happy 5772

Richard D. Friedman said...

First, Paul, thanks for the greetings for the Jewish new year, which I extend to all readers who observe.

I said this was a nice opinion; I didn't say I thought it was word-for-word perfect, and I didn't offer a line-by-line analysis. Yes, if I had been asked to edit it, I would have changed that line treating performance as a statement. But it would have been a simple edit -- the report amounted to a statement of what was performed.

Machine generated output is still a human statement if human input determines the output. But in Williams there was more than that; as I explain in my amicus brief, the Cellmark report includes human analysis of the mixed profile, using contestable procedures to deduce -- the witness's word -- the assailant's profile.

Anonymous said...

But this brings us back to the "first-in time" question I posed the other day... because, although the private lab deduced a male profile from the electropherogram in Williams, and reported that profile to the state lab, the testifying expert did not rely on that deduced profile to reach her opinion. She reviewed the data herself and delivered an opinion to the court that was based on her review of the data.

Anonymous said...

If the state's witness had just taken the stand and given a bare-bones opinion that the two profiles matched, without ever referencing the other lab, would the defendant have a right to insist that the state also present the analysts who profile the evidence samples?

Anonymous said...

Anon 12:07: the expert in Williams did rely on the profile deduced by Cellmark. If you read her testimony, she states multiple times that it was Cellmark's profile that she entered into the database. I don't beleive she ever claims to have deduced a profile of her own from Cellmark's raw data.

Anonymous said...

I do think there is merit to the questions regarding “first-in-time” and an expert's “independence” that strikes at the heart of the nature of scientific inquiry. The cases so far have been factually bound by what might be termed “hard science:” they deal with the analysis discrete chemical compositions such as blood or semen where the lab tech is engaged in a scientific process easily completed by a single individual. Yet scientific inquiry is as often as not a collaborative process as it is a man and a machine. It isn't always easy to determine where one individual's opinion ends and another's begins. The vision of the law that seems to be put forward is one of mano-y-mano, the lawyer confronting an individual on the witness stand. But the individual witness scientific statements are as much a reflection of a community opinion as they are the individual's own expertise.

Take as an example the new field of facial recognition. Despite what the press might have you believe it isn't as simple as sticking a photo in a machine and the computer spitting out a match. The process the FBI uses is a combination of various techniques preformed by different individuals who come together as a unit to reach a consensus. It's a collaborative group effort.

While I have some substantive problems with the approach used by the FBI, in terms of the confrontation clause it isn't at all obvious to me exactly who it is that the defendant is supposed to confront. Because it is a group effort the individual expert on the stand is actually more akin to confronting a US Senator about the behavior of his constituents. One could take the position that all of the experts that come together to form a single opinion should be put on the stand because they all had a hand in the process but not only could that become unwieldy (there are four major techniques used in facial recognition) I'm not at all sure that burying the jury in that level of detail really advances the court's truth seeking function at all.

There is an exercise in line drawing in this aspect of the CC just as there is in a chain of causation in torts. You have got to stop somewhere. It seems to me that the nature of scientific truth seeking demands that any expert on the stand to some degree repackages the testimonial statements of others. That reality is not so obvious in Williams and Bullcoming because the cases deal with “hard science” but once we leave that comfortable realm I think the issue because more acute.

I grasp Prof. Friedman's concern about subterfuges and manipulations but I think that has to be balanced against the competing concerns mentioned above. I worry about setting precedent in this area based upon what makes sense in one limited area of science but when taken to another area of science become less than compelling. The merging of legal forms of truth seeking and scientific forms of truth seeking is full of traps for the unwary.

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