Thursday, September 15, 2011

Top-side amicus briefs in Williams

I've been slow to post the amicus briefs favoring the petitioner in Williams v. Illinois, but here they are:
1. One by the Innocence Network, which you can see by clicking here.

2. One by the Public Defender Service for the District of Columbia and the National Association of Criminal Defense Lawyers, which you can read by clicking here. [I had the wrong link on this one before -- it should be corrected now.]

3. One by the California Public Defenders Association, the California DUI Lawyers Association, and the Mexican American Bar Association (of Los Angles County), which you can read by clicking here.

4. And one by me, which you can read by clicking here.

I haven't responded to recent comments on the blog regarding the case; I am my brief explains my position fully. There are a couple of passages that I would amend if I could, in which I refer to the "primary purpose" test and appear to assume that it governs a case like this. I believe a "reasonable anticipation" test is far preferable, and I am hoping that the "primary purpose" test will eventually recede, perhaps first by being confined to interrogations. The recent decision of the Michigan Supreme Court in People v. Fackelman,, which I expect to discuss in a post in the very near future, raises my hopes that this may turn out to be true.


Anonymous said...

The first and second links relate to the same brief?

pv said...

The "primary purpose" test is here to stay. Sorry Prof. Friedman.

Bullcoming makes clear that it is this test that at least 5 justices will utilize to determine if hearsay is testimonial. And it will not be limited to "interrogation" cases. But will apply to forensic evidence cases like Bullcoming & Melendez-Diaz.

Michigan Supreme Court Chief Justice Wright's dissenting opinion shows that the majority opinion is nothing more than a blatant attempt to avoid applying the "primary purpose" test where the result is contrary to their definition of "justice." Clear, unwarranted, judicial activism. Ignoring clear Supreme Court precedent.

Richard D. Friedman said...

Sorry -- I had given the wrong link on one of the amicus briefs. It should be corrected now.

I won't predict whether the Supreme Court will insist in the near future on applying the primary purpose test across the board -- but I'm an optimist in the sense that I believe that eventually the law tends towards improvement, and so I think that sooner or later the Court will realize that this test really doesn't work.

pv said...

Without any reliance upon a hearsay statement, the prosecution established that evidence from the victim was sent to Cellmark for analysis; that CM conducted DNA analysis; that charts -- containing no statements and purportedly depicting the DNA profile of the perpetrator -- were mailed to the prosecutors.

The prosecution expert, Lambatos, simply compared these charts to the defendant's DNA profile and, using her own independent expertise, concluded that they "matched." Lambatos never introduced any "statement" of absent CM employees before the trier of fact. No "statement" ... no hearsay ... no CC issue.

No doubt: The charts produced by the absent CM employees and relied upon by Lambatos may have been inaccurate, unreliable, or even false, i.e., the possibility exists that CM sent the wrong charts back to the prosecution. But this is not a CC issue -- the CC being concerned only with testimonial hearsay statements, i.e., statements produced for the "primary purpose" of making a case against the defendant.

Any possibility that the CM charts were inaccurate, unreliable, or false undermines the value of Lambatos's opinion, but it does not implicate CC concerns.

Any such possibility does, however, raise 14th Am. Due Process concerns to the extent that Lambatos's "match" opinion deprived the defendant of "liberty" without due process of law, i.e., deprived him of a "fair" trial.

So, for example, if the "match" opinion was the only evidence connecting the defendant to the crime, and it was shown that Lambatos's opinion was, in fact, based upon inaccurate, unreliable, and/or false CM charts, the resulting conviction would constitute a DP violation, i.e., the deprivation of "liberty" without a "fair" trial.

This term, the Court will be examining the prosecution's use of purportedly unreliable evidence to secure a conviction in Perry v. New Hampshire. Perry will have an impact in cases such as Williams (and Bryant) where there is no CC violation, and the only federal constitutional argument that the defendant can assert is that the introduction of the evidence in question (in Williams Lambatos's "match" opinion) and resulting conviction constituted a DP violation -- a denial of a "fair" trial.

Anonymous said...

PV: Would you agree that if the "charts" are hearsay, your whole analysis falls apart?

pv said...

Anon 2:32, if the charts are testimonial hearsay that were, in fact, introduced into evidence then, yes, the CC is implicated by Lambatos's testimony.

But the charts, on their face and standing alone, do not contain a "statement" by an out of court declarant.

Anonymous said...

What's your basis for claiming that the charts are not the "statement" of an out-of-court declarant? According to public defenders amicus brief, "the analyst develops an allele chart with numbers for each extrated, amplified DNA sample." So the numbers, which have some meaning to people in the know, are indeed out of court "statements." Unless I'm missing something, the charts are not product of a machine; the truthfulness and accuracy of the person who prepared the chart (i.e., the person who wrote X equals number Y, or whatever the charts say) must be accepted for the numbers to have any relevance.

Is your position that because the charts were not formally introduced into evidence, there can be no CC violation? That seems like pretty big legal fiction to me.

pv said...

Anon 5:30, what "statement" by an absent Cellmark analyst do you derive from any "allele chart" that was examined/relied upon by Lambatos?

Aren't the "allele charts" the result of a scientific process, and not a communication (by words or writing) by a human?

That fact that the "allele charts" were not formally introduced isn't the factor that removes this case from CC scrutiny. Rather, the CC doesn't apply because they don't contain a "statement," i.e., written or verbal communication by a human being.

Anonymous said...

Aren't the numbers on the chart, which have some meaning, "statements"? That is, the technician performed some analysis and then stated, in the chart, that the DNA is X, Y, & Z. Unless I am mistaken, the technician does not simply put the genetic materials in a machine that prints out a sheet stating the DNA is X, Y, & Z.

The charts may be the result of a scientific process, but the technician (a human) is "stating" the results of that process in the chart.

Richard D. Friedman said...

I think it's important to recognize that Cellmark did a lot more than send a machine-produced chart. The profile that Lambatos testified matched with that of Williams was deduced by Cellmark, essentially by subtracting out the profile of the victim from the mixed profile found on the vaginal swab. This required human judgment, and Lambatos testified that Cellmark did it somewhat differently from the way she would. I address this in my amicus brief.

Anonymous said...

The forensic results in M-D and Bullcoming were the product of a scientific process, yet that didn't stop them from being statements.

Anonymous said...

The testifying expert did not just rely on an allele chart. it seems like she primarily relied on a computer-generated graph. Based on her review of that graph, and her personal knowledge of the PCR-based DNA testing Cellmark did, she could personally ascertain how Cellmark initially deduced the male profile that was entered into the DNA database. But, after the computer hit, she went back to the graph and compared that to the defendant's DNA profile. Since she didn't rely on the Cellmark deduced profile, she deduced it herself, not sure how her testimony about a match in any way implicates CC. Is there a first-in-time requirement? That is, if one expert looks at data first and reaches a conclusion, does that mean another expert can't also look at the same data and draw her own conclusions?

pv said...

I agree 100% with Anon 10:52.

In addition, the allele chart and computer-generated graph, standing alone, do not constitute a "statement," as that term is defined in the FRE. Thus, not only was the CC not implicated by Lambatos's interpretation of those documents, but the actual introduction of those documents into evidence was not in any way restricted by the CC.

Anonymous said...

How was the computer generated graph generated? Was it based on input from the technician? If so, it's hearsay and testimonial. The only way it would not be testimonial would be if the technicial did nothing but put a substance into a machine.

Anonymous said...

Thanks, pv. And ditto on your DP posts.

Anon 12:36: It is my understanding that, although there is "input" in the form of setting parameters for the computer run of the sample, etc., there is no assertive human "input" in the manner you suggest. It is not like me typing this message on a computer and then just printing it out. It is more like me typing 2 + 2 into a machine, letting the computer do the computation, and then printing out the results (a very rough analogy, I know, but it was the best I could come up with before my afternoon coffee). Maybe PV can help me out with a better example to illustrate this point?

Anonymous said...

In your analogy, the input of 2 + 2
would be hearsay. You reviewed something, it said 2, you another thing, it said 2, and therefore the resulting caclulation is the product of the inputer's assertion that 2 and 2 are the relevant and accurate numbers. The product of a machine that relies on hearsay is still hearsay.

pv said...

Anon 5:14, when a human types/inputs 2 + 2 on a calculator they do not assert anything. Their act of typing/inputing those numbers is, therefore, not a statement under the FRE. And without a statement there is no hearsay.

The resulting printout from the calculator which shows the number 4 is, likewise, not an assertion by a human, not a statement, and not hearsay under the FRE.

It is true, the person may mistakenly type/input the number 3 instead of the number 2. And the result, i.e., the calculator printout with the number 5, may be inaccurate, and unreliable, because of human error. But, as I stated in a prior post, the possibility that the evidence is unreliable is not a concern of the CC, but may raise Due Process concerns.

Anonymous said...

PV: First of all, I'm not at all sure that the DNA analysis is as simple as interting 2 and 2, which results in a calculation of 4. Secondly, by inserting the numbers 2 and 2 the person is indeed asserting something. Specifically, that the number 2 has some meaning and that it is in fact the proper number to be inserted.

Reliability is out under Crawford, no doubt. That does not mean that the numbers inserted, which result in a chart (or some other calculation), are not "statements." The "statement," 2 or any other number, is made out of court, is not subject to cross examination, and is hearsay.

If the technician performs some test, and the result is that there is 2 milligrams of a substance, and the technician then inserts that number into a computer, the resulting computer analyis contains, and is, a hearsay statement.

Anonymous said...

If a lab technician or scientist puts a tube containing genetic material derived from a sample (physical evidence) into a machine and the machine generates a graph focusing on 13 areas of that sample, no human assertion is made. It may take human conduct to get the tube into the machine and press "go", but it does not involve human assertion. It is just like lifting a fingerprint. You have physical evidence to start and the machine, in a sense, magnifies it so people can view, interpret, compare it.

Anonymous said...

DNA typing involves a lot more than simply placing a sample into a machine and pressing a button. There are many steps, and the analysts must make judgement calls as to whether the steps were correctly performed and in interpreting the results of each step. Check out John Butler's book on forensic DNA typing.

Analogizing DNA analysis to punching in numbers on a calculator is misleading.

pv said...

Anon 11:17, no one disputes that there are a lot of intricate steps involved in DNA typing that require a certain degree of expertise, and mistakes can occur during any one of those steps. But, respectfully, the point that you are missing is that the human "conduct" involved in each of those steps is not an "assertion" within the meaning of the FRE. Thus, there is no "statement," and no hearsay at issue by the mere performance of DNA typing.

Anonymous said...

PV: What FRE supports your claim that the "conduct" involved in the steps is not an "assertion" and so there is no "statement," and no hearsay at issue by the mere performance of DNA typing?

Richard D. Friedman said...

Performance isn't a statement, but the report of it was, and Lambatos's testimony made clear that Cellmark had made such a report, and a human one. Maybe my amicus brief will persuade Paul on this point. (Maybe not.)

pv said...

In response to Prof. Friedman and his amicus brief:

Lambatos's singular reference to a male DNA profile "reported by Cellmark" that matched the defendant's DNA profile is ambiguous in the following regard:

Her "reported by Cellmark" testimony could have simply been referring to the allele chart and computer-generated graph, neither of which contained "statements." There was evidence, aside from Lambatos's testimony, that those nonhearsay documents related to the evidence obtained from the victim, sent to Cellmark, and sent back to the State by Cellmark. Thus, there was an evidentiary connection between those nonhearsay documents and the defendant, and the victim, that did not raise any CC issue.

To the extent that one (like Prof. Friedman) interprets Lambatos's "reported by Cellmark" comment to be the equivalent of Lambatos testifying that "Cellmark stated that the evidence from the victim contained a male DNA profile," the issue before the Court in Williams is still the same:

Does allowing an expert to examine/rely upon the Cellmark generated nonhearsay charts/graphs/data in forming her "match" opinion raise any CC concerns? It does not.

I don't think the Court granted cert. in Williams to simply answer the question that Prof. Friedman focuses in on in his amicus brief: Did the "reported by Cellmark" testimony of Lambatos (interpreted the way Prof. Friedman interprets it) violate the CC?

I would agree that under the "primary purpose" test any "statements" by Cellmark employees regarding the evidence submitted by the prosecution were testimonial. But no such "statements" were introduced into evidence by Lambatos's testimony.

Lmabatos's examining/reliance upon the nonhearsay documents generated by Cellmark in forming her "match" opinion did not violate the CC.

Although the Due Process Clause of the 14th might be implicated if the defendant can establish that those documents were so unreliable that Lambatos's using them as the basis for her "match" opinion violated the defendant's right to a fair trial, in light of all the evidence linking the defendant to the crime.

Richard D. Friedman said...

I'm rushing for the Jewish new year. I'll have to read Paul's latest message later, and I will probably respond after the holiday. To all who observe it, shanah tovah.

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