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.)

Williams reply brief

Sorry, I've been slow in posting the reply brief in Williams v. Illinois, but here it is.

Happy Thanksgiving to all!

Coping with the Melendez-Diaz line

I'm attaching the draft of a short piece I've written on potential responses jurisdictions may take to the Melendez-Diaz line of cases. I expect to make changes in this, as I go along. Comments are welcome.

Bottom-side amicus briefs in Williams

Today was the due date for amicus briefs supporting the state in Williams v. Illinois. Four have been filed.

You can read the brief of the United States by clicking here.

You can read the brief of 42 states, the District of Columbia, and Guam, all under the leadership of Ohio, by clicking here.

You can read the brief of the National District Attorneys Association by clicking here.

You can read the brief of the New York County District Attorney and the New york City Chief Medical Examiner by clicking here, and the appendix to that brief by clicking here.

State's brief in Williams

The State filed is brief in Williams v. Illinois yesterday, and you can read it by clicking here. I hope to offer comments on it soon.

Arkansas holds confrontation right applies to jury fact-finding in sentencing

In Vankirk v. State, 2011 Ark. 428, 2011 WL 4840620 (Oct. 13, 2011), the Arkansas Supreme Court has held that the confrontation right applies to sentencing proceedings conducted before a jury, in non-capital as well as capital cases. The logic of the opinion actually appears to apply to all sentencing proceedings, but in an apparent attempt to avoid conflict with other cases the decision is limited to proceedings before a jury, though the court does little to defend the distinction, and I believe it is a hard one to maintain.

Vankirk pleaded guilty to three counts of rape, of his niece, a child, and under Arkansas law elected to be sentenced by a jury. At the sentencing proceeding, the prosecution presented a videotaped interview that the girl made with a state police investigator. The state supreme court held that the girl's statements in the interview were testimonial. Putting aside for present purposes the matter of the child's age, that is clearly the right result. And then the court held that the confrontation right applied to the sentencing proceeding.

I think this case is a good illustration of the issue of confrontation rights in sentencing. Suppose the girl had testified live at the sentencing proceeding, but at the conclusion of direct, as defense counsel was rising to cross-examine, the judge said, "You are excused. We have no need for cross-examination, so I will not allow it." I think that would plainly be unconstitutional – if not under the Confrontation Clause, because the Clause is construed not to apply to this type of proceeding, then under the Due Process Clause. So should the result be any different when the witness testifies just outside the courtroom on videotape and the tape is played at the proceeding? I don't believe so. That in effect is what happened here. (I'm not sure it was actually in physical proximity to the courtroom, but it does seem that the tape was made at least in part to supply evidence for courtroom use; the state supreme court said the statements "were made to an investigator for the state police for the purpose of proving events relevant to a criminal investigation.") When I refer to the speaker as a witness and say that she is testifying, I am drawing on one of the essential points of Crawford: Simply because a person (such as Sylvia Crawford) speaks out of court does not mean that she is not testifying, and indeed the central focus of the Confrontation Clause is to require that testimony be given in court, under prescribed procedures, rather than in any other way, such as the cihttp://www.blogger.com/img/blank.gifhttp://www.blogger.com/img/blank.gifvil-law closed-door style.

So perhaps the U.S. Supreme Court should go the full route of holding that the Confrontation Clause applies with full force to all sentencing proceedings. It may be reluctant to do so, however. One possibility would be to hold that the Confrontation Clause itself does not apply to most sentencing proceedings (i.e., that it does not apply beyond the scope of Apprendi), but that, notwithstanding Williams v. New York, 337 U.S. 241 (1949), it does provide some right of confrontation, perhaps more easily overcome than the Sixht Amendment right.

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.

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:
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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 http://www.blogger.com/img/blank.gifhoping 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.

Petitioner's brief and Joint Appendix in Williams

The petitioner has filed his brief and the Joint Appendix in Williams v. Illinois. You can read the brief by clicking here and the Joint Appendix by clicking here.

Melendez-Diaz held not retroactive, in Melendez-Diaz case

Here's an irony of sorts. The Massachusetts Supreme Judicial Court has held the rule of Melendez-Diaz not to be retroactive -- and it did so in Commonwealth v. Melendez-Diaz, 2011 WL 3000275 -- yes, involving a prior conviction of the same Luis Melendez-Diaz.

Initial thoughts on Williams

In Williams, the state presented the testimony of a DNA expert that in her opinion, based on a Cellmark report on DNA found in a crime scene sample and on a report by the Illinois State Police on DNA found in a swab taken from the accused, that the accused was the source of the DNA found in the crime scene sample. No one from Cellmark testified at trial.

1. The Cellmark report was testimonial. As I understand it, this was a report on a crime scene sample referred to Cellmark by the Illinois State Police. I don’t think that there is much doubt that the primary purpose of the report, however one might analyze it, was to create evidence for use in prosecution. (That is more rigorous than the test I think ought to be applied, but that’s another issue.)

I think it’s important to bear in mind that the other issues raised by Williams come into play only if the underlying statement is testimonial. That may be obvious, but it is worth emphasizing for a couple of reasons. First, this fact should relieve much of the concern about costs, financial and in terms of lost evidence. No confrontation problem arises unless the report is made in anticipation of evidentiary use. For example, if a lab tech does a blood test without the anticipation of evidentiary use, it will not be testimonial, and there is no confrontation issue. Second, if the statement is testimonial, then that means that the statement was made in anticipation of evidentiary use – and in fact under current law it would mean that it was made with the primary purpose of creating evidence for use in prosecution. That, I believe, should raise alarm bells for a court considering creation of a doctrine that would allow use of the statement without the live testimony of a competent witness.

2. The statement was not formally admitted, but a crucial part of the substance was made known to the jury. The prosecutor asked Sandra Lambatos, the in-court witness, “Was there a computer match generated of the male DNA profile [reported by Cellmark] found in semen from the vaginal swabs of [the victim] to a male DNA profile [reported by another analyst in the state police lab] that had been identified as having originated from Sandy Williams?” She answered in the affirmative. The prosecutor then asked whether she had compared the two profiles. She said she had. He asked what the frequency of such a match would be if someone other than Williams were the source, and she answered with very low numbers. Finally, the prosecutor asked, “In your expert opinion, can you call this a match to Sandy Williams?” and she responded simply, “Yes.”

Formal admission of an out-of-court statement is not necessary to invoke the Confrontation Clause. When a statement is a writing, it is of course often admitted as an exhibit. When it is unrecorded, then no tangible exhibit of it can be offered. We necessarily rely on another witness's account of the statement -- but the Clause may be brought into play without that account being purportedly verbatim. It should be enough if the prosecution is effectively asking the jury to infer that the in-court witness is communicating some or all of the substance of an out-of-court testimonial statement, and that this substance is true. See my recent post, When is a statement presented for purposes of the Confrontation Clause?

In considering application of this principle to this case, note first that the existence of the statement was made clear to the jury. In other words, this is not a case in which an expert assembles information from one or more sources and then draws an inference based on that information without disclosing what it is or what its sources are. (I don’t believe that if that were so it would per se render the Confrontation Clause inapplicable; it still might that the jury would likely infer that the expert’s opinion was based on a statement to a certain effect, and even if not there would be a concern that the expert’s opinion is being used to repackage the information contained in an undisclosed testimonial statement. But, whatever the ramifications may be of that situation, the Court need not address them in the Williams case.) The testimony explicitly referred to the Cellmark report. Furthermore, it was clear what the substance of the statement was: It indicated that the vaginal swab taken from the crime scene reflected the same DNA profile as the swab taken from Williams. It is as if an in-court witness reports, “Somebody at the scene described the person she saw commit the crime, and the description closely matched Williams.” So far as the Confrontation Clause is concerned, the report was presented to the jury.

3. The argument that the statement was in any event presented to the jury not for the truth of a matter that it asserted but rather in support of the expert’s opinion seems willfully wrong-headed to me in this context. In prior posts on this blog, including one discussing the fine opinion in People v. Goldstein, 6 N.Y.3d 119, 843 N.E.2d 727, 810 N.Y.S.2d 100 (by a former boss of mine, Judge Robert Smith), I have emphasized the simple point that if a statement supports the expert’s opinion only if it is true then it is a sham to say that it is being presented to support the opinion but not for its truth; see also The Not-for-the-Truth End Run. And in Williams, the application of this principle is perfectly clear: If the profile revealed by the vaginal swab was not what the Cellmark report said it was, then that report provided no support whatsoever for the expert’s opinion.

4. This analysis should not be affected by concluding that the expert’s opinion conveyed additional information not contained in the original report – an argument not available to the prosecution in Bullcoming, where the in-court witness did nothing more than transmit the information reported by the absent analyst. The question is not whether the in-court witness’s testimony had added value, but whether the out-of-court report was presented for its truth. This is simply an ordinary instance of a prosecution case depending on multiple links in a chain – and each link must comply with the Confrontation Clause. We wouldn’t, for example, tolerate a witness testifying that a given sample contained cocaine without the prosecution also presenting proper evidence tying the sample to the case. This is no different. If the expert’s opinion does indeed convey additional information, that is something more that the prosecution has to prove; it does not ease the burden on the prosecution.

Indeed, the “expert value added” theory would be an invitation to manipulation by the prosecution and its witnesses. That is, the prosecution would have an incentive to manufacture needs for its in-court witnesses to add value over the other information presented to the jury.

For example, suppose a lab analyst reports results from which a qualified chemist could easily infer the presence of cocaine – but that the report does not include this bottom line. If the “expert value added” theory governed, a chemist could, so far as the Confrontation Clause is concerned, testify at trial against an accused, “In my opinion, cocaine was present in that sample.” (As discussed below, evidence law in most jurisdictions would require the expert to satisfy the court that the information on which she based her opinion was “of a type reasonably relied upon by experts” in her field, but that is a standard easily met.) The lab analyst, who by hypothesis knew that her report was intended for prosecutorial use, would not have to come to court, and the report would not even have to be introduced or otherwise presented to the jury.

5. Fed. R. Evid. 703, copied by most of the states (now including Illinois), provides:

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data [on which a testifying expert bases an opinion] need not be admissible in evidence in order for the opinion or inference to be admitted.

A 2000 amendment to the Federal Rule adds:

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

A few points. This Rule does not purport to state a constitutional principle. Nor does it state an evidentiary principle of long standing; it was developed and adopted in the third quarter of the 20th century. There is no constitutional problem with the Rule so long as the information provided to the expert is not a testimonial statement. But if the expert does base an opinion on a testimonial statement, then I think there are potential constitutional problems.

First, if the statement is presented to the jury for the truth of what it asserts – and I have argued above that in Williams these conditions were met for purposes of the Confrontation Clause – then there is a violation of the Clause, assuming the author of the statement (or someone else who can endorse its substance from first-hand knowledge) does not testify at trial. The last sentence of Fed. R. Evid. 703, if it were applicable, would relieve the statement of objection to admissibility under ordinary evidentiary rules, but of course it cannot provide relief from a constitutional objection – and note that it is based on a set of considerations, a weighing of probative value and prejudice, having nothing to do with the Clause. This sentence as adopted, as I recall, because courts were in conflict about how to handle the situation in which an expert was allowed to offer an opinion based in part on a statement otherwise inadmissible and the proponent sought to use the opinion as a lever to gain admissibility of the statement. Some courts, I believe, without quite recognizing the nature of the Confrontation Clause problem – this was before Crawford – nevertheless had a sense that in at least some cases there was something fishy about letting an otherwise inadmissible statement in on the basis that it supported the expert’s opinion. But the rulemakers couldn’t articulate the circumstances in which this created a problem – the answer, I think, is that it’s a problem when the statement is testimonial – and so they responded http://www.blogger.com/img/blank.gifwith a rather clumsy compromise, simply putting some extra weight on the prejudice side of the scale prescribed by Fed. R. Evid. 403.

Now, what if the out of court statement is testimonial but it is not presented to the jury? Is there a Confrontation Clause problem with allowing the expert to give an opinion based in part on the undisclosed statement, as Fed. R. Evid. 703 purports to allow? That, as I have said, is a question not presented in Williams, and there is no need for the Supreme Court to resolve it in deciding Williams. But a couple of comments. First, even if the statement is not explicitly disclosed to the jury, it may be that enough is disclosed that the jury will likely infer the substance of the statement. Second, even apart from that, I think there may be a substantial Confrontation Clause problem. Recall, that by hypothesis, the statement made to the expert is testimonial. The expert therefore may essentially be repackaging information provided by an out-of-court witness who does not come to court. Again, an example would be a chemist who offers an “opinion” in court that a substance was cocaine, based on a lab report giving information that strongly implies that conclusion to chemists.

In short, I worry that if the Supreme Court holds for the state in Williams, it will invite subterfuges and manipulations that will substantially impair the confrontation right.

Papers in Williams v. Illinois

It's going to be a little while before I offer comments directly on Williams. But meanwhile, here are the petition for certiorari, the state's brief in opposition, the reply by Williams, and the crucial testimony of Sandra Lambatos.

Another cert grant: Williams v. Illinois

It appears that the next case in the Melendez-Diaz line will come very quickly. The Supreme Court granted cert today in Williams v. Illinois, No. 10-8505, seeking review of People v. Williams, 939 N.E.2d 268 (Ill. 2010). The case presents the issue of what I have called the "not for the truth" end-run in the context of expert evidence: The Illinois Supreme Court held that the absent analyst's report was introduced not for the truth of what it asserted but rather "to show the underlying facts and data [the in-court witness] used before rendering an expert opinion in this case." I will write something more substantive on this later.

Thoughts on Bullcoming

Here are some early reactions to the decision in Bullcoming.

1. For the first time in a substantive Confrontation Clause opinion in the Crawford era (I’m not counting Whorton v. Bockting, on retroactivity), Justice Scalia didn’t write. In fact, as the senior justice in the majority, he assigned the opinion to Justice Ginsburg. I don’t know to what extent he felt he had to because he already had an opinion from the sitting. And she had none. But the assignment may reflect his understanding that continued development of the Confrontation Clause requires that it not be perceived as a one-man show.

2. Justice Kagan, although having signed an amicus brief for the Government in Melendez-Diaz, declines to join the four dissenters from that case. That is very good news.

3. Justice Ginsburg treated the case as the simple one that it was: The state introduced a report signed by one analyst (Caylor) without presenting the live testimony of that analyst or of any other witness who could testify at first hand to the matters asserted in the report. Thus, said Justice Ginsburg, “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other way.” And for good measure, she cited a passage from Justice Kennedy’s dissent in Melendez-Diaz, saying that the Court’s holding meant that the “analyst who must testify is the person who signed the certificate.”

4. Justice Ginsburg also properly rejects the theory that there was no Confrontation Clause violation because Caylor was a “mere scrivener.” That theory was inapplicable on its facts: Caylor reported what he did as well as what the machine indicated. More fundamentally, as Justice Ginsburg points out, witnesses often report simple factual observations – the color of a traffic light, the number above a door, the speed shown by a radar gun. She asks whether an officer other than the observer could report the observations in court, so long as that second officer could report about any technology used and the department’s standard procedures. “As our precedent makes plain,” she answers, “the answer is emphatically ‘No.’” And again she is able to use a statement from Justice Kennedy’s Melendez-Diaz dissent: (“The Court made clear in Davis that it will not permit the testimonial statement of one witness to enter into evidence through the in-court testimony of a second.”).

5. As for the state’s contention that the report was not testimonial, Justice Ginsburg noted that the state supreme court had recognized that “Melendez-Diaz left no room for that argument,” and she correctly characterized this conclusion as “inescapable.” This portion of the opinion says that the formalities attending the report “are more than adequate” to characterize it as testimonial. That should not be read as requiring formality for a statement to be deemed testimonial, and footnote 3 of Justice Sotomayor’s concurrence, with the aid of language from her opinion for the Court in Michigan v. Bryant, makes this clear. But Justice Ginsburg treats the matter delicately, presumably because formality was (unfortunately) essential for Justice Thomas’s vote. It is not clear to me why Justice Thomas did not join footnote 6 of the majority opinion, but it is possible that he read it as encapsulating a test without a formality requirement for whether a statement is testimonial.

6. It is also somewhat mysterious why Justices Thomas, Sotomayor, and Kagan declined to join Part IV of Justice Ginsburg’s opinion (leaving Justice Scalia as the only member of the Court to join Justice Ginsburg's opinion in full; this split appears to be between those who are and those who are not opera fans, but I am not sure of the reason). This section addressed the question of the practical burden that the decision might impose on the states. It repeated what the Court had said in Melendez-Diaz, that this burden does not alter the constitutional rule; it cast doubt on the extent of the burden created, and it suggested some ways – including retesting and notice-and-demand statutes – that might limit the burden. Perhaps the three justices thought that most of this Part was unnecessary for decision and so should not have been included.

4. Justice Sotomayor clears up some of the uncertainty that arose from the reliability language in her Bryant opinion – at least to the extent of making clear that the language should not be accorded very much impact. Justice Kennedy’s dissent says that in Bryant the Court ruled that reliability is “an essential part of the constitutional inquiry” under the Confrontation Clause. Justice Sotomayor says in her concurrence that, “[c]ontrary to the dissent’s characterization, Bryant deemed reliability, as reflected in the hearsay rules, to be ‘relevant,’ not ‘essential.’” It’s not entirely clear what that sentence means (Justice Kennedy had said that reliability was an essential part of the inquiry, which is different from saying that reliability (or its negation) is essential to a determination that a statement is not (or is) testimonial), but the next sentence asserts a basic distinction underlying Crawford: “The rules of evidence, not the Confrontation Clause, are designed primarily to police reliability; the purpose of the Confrontation Clause is to determine whether statements are testimonial and therefore require confrontation.” I suspected that the reliability language in Bryant was inserted at the instance of Justice Kennedy, and Justice Sotomayor’s treatment of it here seems to support that supposition; I’m hoping that Justice Sotomayor does not speak of reliability in the Confrontation Clause context again.

Justice Sotomayor does clearly mean something by her reference to hearsay rules. She repeats language from Bryant that in determining primary purpose for deciding whether a statement is testimonial under the Confrontation Clause hearsay rules will be relevant. But the language is capable of being understood as saying no more than that some hearsay rules carve out categories of statements that are not intended primarily for litigation and so are not testimonial. To a large extent, I agree. I believe many of the hearsay rules have grown up conforming to confrontation principles – that is, statements made with litigation in mind have tended to be excluded, and others have tended to be admitted. But this description of reality should not be taken as prescription – that is, simply because a statement fits within a hearsay exception as that exception has come to be construed does not mean that it is not testimonial. Melendez-Diaz should have made this clear.

7. Just who is it that must testify subject to confrontation under the Court’s holding? At one point, the Court says that it is “the analyst who made the certification,” but a couple of sentences before the Court says the question is whether a report containing a certification may be introduced “through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” I think actually the “observe” part is, or should be critical (recognizing that one who performs a test necessarily observes (through one or more of the senses) performance of the test. First, observation is sufficient: Analyst B could properly testify, “I observed everything Analyst A did, and her report is an accurate rendition of what I observed.” (I do think that in a case of this sort, the defense would be entitled to an instruction that the jury should not put any weight on the credibility of Analyst A.) That is particularly important in autopsy cases, in which it is standard procedure in some jurisdictions (and probably ought to be standard in all) to have a second medical examiner in the room. Second, I believe observation is necessary. It should not satisfy the Confrontation Clause, for example, if A performs a test, writes up a report but leaves it unsigned, and then passes it on to B, who did not observe the test but who signs the report and then testifies in court to its contents. In other words, I believe the Confrontation Claus necessarily incorporates a personal knowledge requirement.

8. Justice Sotomayor includes a section indicating the limited nature of the holding. She points out that the report had no purpose other than use in litigation, and indicates that it would be a different matter if the report was necessary to provide medical treatment. I think this example (which the Court has touched on before) indicates one of the problems with the “primary purpose” test: Some reports made in the clear anticipation of evidentiary use can also be justified on medical grounds, and it may be easy for the reporter and the prosecution to persuade a court that the primary purpose was medical.

Justice Sotomayor also points out that this is not a case in which the in-court witness “was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” The good news there is that she appears to recognize that if the underlying report is admitted into evidence and it appears to support the opinion of the in-court witness only to the extent it is true, then the author of the report should be deemed to be a witness subject to confrontation; saying that the report is being used only to support the opinion of the witness in court cannot be used as a talisman to avoid a confrontation problem. But what if the underlying report is not introduced into evidence? Justice Sotomayor points to Fed. R. Evid. 703 as supporting the proposition that an expert may base an opinion on facts or data not themselves admissible into evidence if they are of a type reasonably relied upon by experts in the field. But it must be remembered that Rule 703 is not a rule of historically long standing; it is a creation of the late 20th century, adopted with no sensitivity to the confrontation right. A concern is that the in-court witness’s testimony may be another way of packaging and transmitting to the jury the testimonial statement made by the out-of-court witness. This strikes me as a difficult issue, and we should not assume that Rule 703 states a principle of constitutional law. But I suspect that one of the next attempts to evade the impact of Melendez-Diaz will be to have the in-court witness express an opinion that has somewhat more content than the written report, and then argue that the report was merely one input that led the in-court witness to reach her opinion.

Finally, Justice Sotomayor suggests the possibility that a state could, “assuming an adequate chain of custody foundation,” present the printout from a machine. Maybe so, but the authentication would be difficult without a live witness. The person typing in, say, the suspect’s name may be making a testimonial assertion that the sample about to be tested is that of the suspect. So the printout is not completely “raw.”

9. Obviously, I don’t think much of Justice Kennedy’s dissent. I think Justice Ginsburg is right that the dissenters are objecting more to Crawford and Melendez-Diaz than they are to the application in this case. He insists, as noted above, that reliability is “an essential part” of the inquiry under the Confrontation Clause, which clearly flies in the face of Crawford – I don’t think he could reasonably contend that reliability makes a statement non-testimonial. Indeed, he explicitly uses the “indicia of reliability” standard that was the hallmark of Ohio v. Roberts. And he says quite explicitly that what he perceives as “trouble fashioning a clear vision” of Crawford’s meaning is “symptomatic of a rule not amenable to sensible application.” (Of course, one of the opinions that he cites as showing a range of interpretations is the majority opinion in Bryant; eliminate that one, and a good deal of confusion would disappear.) We should bear in mind that Crawford was a transformative decision and it is only seven years old; it is not all that surprising and not at all disturbing that the law remains unsettled. Justice Kennedy makes no attempt, so far as I can tell, to argue that the certificate here was not testimonial (he lost that battle in Melendez-Diaz) and the weight of his opinion seems to be to show that insisting on the testimony of the only analyst who observed the test is a “hollow formality” not worthwhile because (a) it will not produce much useful information; (b) the costs of requiring that analyst to testify live are oppressive; and (c) surrogate testimony is a pretty good substitute. As in Melendez-Diaz, the majority’s response to each of these is, in effect, “Irrelevant, and not true in any event.”

In a passage that I believe expresses what has been a particular concern of Justice Breyer, the dissent says, “In cases like Melendez-Diaz and this one, the Court has tied the Confrontation clause to 18th century hearsay rules unleavened by principles tending to make those rules more sensible.” That’s an odd statement, given that a major point of Crawford was to divorce confrontation law from the rules against hearsay. I think a more accurate statement would be this: During the two centuries following adoption of the Confrontation Clause, courts lost sight of the confrontation right, relying instead on an increasingly amorphous hearsay rule to do the work that an independently articulated confrontation right should have done. Accordingly, in the 20th century, some jurisdictions made the judgment, which seems pragmatically sensible only if one gives no independent weight to the right, that a prosecutor could present the results of a forensic lab test without producing a live witness who had observed performance of the test. But if one recognizes that the right is independent of whatever hearsay rules a jurisdiction might adopt, and that it is a rule governing the procedures by which prosecution witnesses give testimony, insisting that (absent stipulation) testimony be given live in the presence of the accused, then the results in Melendez-Diaz and Bullcoming become quite obvious.

I thought the majority opinion in Melendez-Diaz was a great one, and that the dissent by four justices showed a disturbing lack of understanding of what the confrontation right is all about. I have much the same feeling about Bullcoming. Right result, properly reasoned, but one vote away from an abyss – avoided only because the statement was a formal one, so that Justice Thomas’s vote was not lost. And with the dissent’s endorsement of using reliability – and even the old “indicia of reliability” formulation – as a test for applying the confrontation right, and its suggestion that Crawford can’t be made to work, the divide seems even starker than before.

Bullcoming reversed

The Supreme Court has reversed the decision in Bullcoming, 5-4 per Justice Ginsburg. Right result, too close. That's all I know as of now. I have to speak about the case, and others, in 90 minutes to the state solicitors general, and then I'll be traveling; it may be awhile til I have substantive comments.

When is a statement presented for purposes of the Confrontation Clause?

I had virtually completed the post below when Bullcoming was decided, and then I had to put it aside for a while. As it happens, the two issues discussed here are both involved in Williams v. Illinois. I hope to write later on Williams, but for now I'll post this without further reference to that case.

In 2008, I wrote a post titled No confrontation issue if the statement isn’t even offered. I believe my analysis of the case discussed there was correct, but the title was overstated. Prosecutors occasionally try to evade the Confrontation Clause by offering, rather than the actual words of a statement, evidence from which the substance of the statement can be inferred. This attempt should not be countenanced. So we have what actually can be a tricky problem, determining when a statement is sufficiently presented to invoke the Confrontation Clause.

Courts are sometimes but not always alert to the problem, which sometimes is tied to another problem that I have labeled the "not-for-truth end run".

Jeff Fisher has brought to my attention a particularly crude prosecutorial attempt at evasion, one that fooled a district judge but was corrected by the First Circuit. United States v. Meises, 2011 WL 1817855 (1st Cir. May 13, 2011).

After being arrested, one Rubis gave an interview to DEA agents. The prosecutor recognized that statements made by Rubis during this interview were testimonial, and so decided not to offer the “actual statements”. Instead, the prosecutor established through one of the agents that Rubis had agreed to cooperate, and that he was interviewed alone. This exchange followed:

Q: After this interview, did the targets of your investigation at this point change?

A: Yes, sir.

Q: Okay. After this interview, what did you decide to do with Defendant [Reyes–Guerrero]?

The agent then testified that Reyes-Guerrero and Meises were processed and taken to a federal detention facility.

(As an aside, the only objection made at trial explicitly referred only to the hearsay rule, and the district judge held that the statement was admissible because it was by a co-conspirator. This is incorrect as a matter of hearsay law, as the First Circuit noted, because Rubis had already been arrested. It also does not address the Confrontation Clause issue, which the First Circuit held was adequately raised by the hearsay objection.)

On the merits, the First Circuit held “that a reasonable jury could only have understood [the testifying agent] to have communicated that Rubis had identified appellants as participants in the drug deal. It makes no difference that the government took care not to introduce Rubis's ‘actual statements.’

And, the court added, “any other conclusion would permit the government to evade the limitations of the Sixth Amendment and the Rules of Evidence by weaving an unavailable declarant's statements into another witness's testimony by implication.”

I think the First Circuit got it basically right, though I would put the governing standard somewhat differently. I think the key point is not quite whether “a reasonable jury could only have understood” that the in-court witness was communicating the substance of an out-ofhttp://www.blogger.com/img/blank.gif-court statement; the evidence might be ambiguous and still create a confrontation problem. I think I might instead pose this question:

Is the prosecution, in offering the evidence on a given ground, effectively asking the jury to, or is there an excessive risk that the jury will

(a) infer that the in-court witness is effectively communicating some or all of the substance of an out-of-court testimonial statement, and

(b) use that statement as proof of the truth of an assertion it makes?

See Ocampo v.http://www.blogger.com/img/blank.gif Vail, 2011 WL 2275798 (9th Cir. June 9, 2011) (concluding that before Crawford it was clearly established that "testimony from which one could determine the critical content of the out-of-court statement was sufficient to trigger Confrontation Clause concerns" and that Crawford did not alter this result; finding a violation in part on the basis of an in-court witness's statement that "did convey some critical substance" of the out-of-court testimonial statement); State v. Swaney, 787 N.W.2d 541 (Minn. 2010)(trial court "violates the Confrontation Clause when it admits testimony that inescapably implies a nontestifying witness's testimonial hearsay statement").

In Meises, I think the answer is affirmative. Apparently, the prosecution offered the testimony on the ground that it explained the subsequent conduct of the officers. But how would it do that? The most natural, if not the only, plausible inference is that Rubis made a statement suggesting guilt on the part of the defendants, and that the officers believed it. Why does that matter? The most likely use that the jury will make of the evidence is to conclude that the officers got it right, and had good reason to arrest the defendants.

And this is where the "not for truth" end run comes in. The prosecution says that it was only offering the evidence to explain the conduct of the police. The First Circuit properly rejected this argument, elaborating on “the limitations on so-called background or context evidence” in a footnote that included this passage:

We take it to be common ground that the government may not have an agent testify, “X told us that the defendant was involved in the crime.” Quoting X's out-of-court accusation remains impermissible if the agent's testimony is changed to say, “We began to investigate the defendant because X told us that the defendant was involved in the crime,” and the government seeks to justify it by arguing that X's out-of-court statement was offered not for its truth but only to explain why the agent focused on (or arrested) the defendant. Nor does the result change if, instead of quoting the out-of-court statement, the government communicates its content to the jury by implication.

The simple fact is that in a case of this sort the jury doesn't need to know why the police arrested the defendants -- apart from knowing the evidence properly presented to them. But there is a very real danger that the jury will conclude that the out-of-court speaker made a truthful accusation to the police. And so the First Circuit properly decided that whatever valid probative value the evidence might have had was outweighed by the prejudicial danger of the evidence. That sounds like a discretionary ruling under Fed. R. Evid. 403 or a state counterpart. But it goes beyond that. Because the probative value for setting context is so minimal, and because there is a substantial probability that the jury will use the evidence to infer that a testimonial statement was made and is true, thus greatly aiding the prosecution, in this context the balance indicates that in effect the prosecution has presented a testimonial statement for the truth of an assertion it made. And so this is a judgment used to determine whether the Confrontation Clause is invoked -- it is not merely a discretionary matter of weighing on which an appellate court should defer to a trial court.

My comments here are of a piece with the standard I tentatively offered in a 2007 post, Conflict deepens on expert evidence, on the general question of judging when a testimonial statement supposedly not offered for the truth raises a Confrontation Clause problem:

It seems that a court . . . must first ask whether the testimonial http://www.blogger.com/img/blank.gifstatement has substantial value in proving the proposition for which it is supposedly offered without respect to whether the statement is true or not. If the answer is negative . . . then that proposition does not offer a basis for admitting the statement. If the answer is affirmative, then the court must assess whether that value warrants the risk that the jury will, notwithstanding an instruction to the contrary, use the statement to prove the trhttp://www.blogger.com/img/blank.gifuth of what it asserts.

As for that 2008 case, United States v. Tucker, 533 F.3d 711 (8th Cir. Jul. 17, 2008), here for ease of reference is what I wrote about ti then:

Tucker assisted her boyfriend Robson in a get-away from a bank robbery, and the critical issue was whether when she did so she knew that he had robbed the bank. So, as the 8th Circuit indicated, evidence that Tucker knew that Robson had committed other bank robberies was admissible to show her state of mind on this occasion, and it was also admissible to impeach the credibility of her testimony that she didn’t know Robson had robbed the bank. In cross-examining Tucker, the prosecutor asked whether on three specified prior occasions Robson had robbed a bank and either he had told Tucker about it shortly afterwards or she had helped him get away. Tucker denied each. No evidence of the other robberies was admitted.

If the prosecutor had no good-faith basis for asking questions of this sort, they would be highly prejudicial and improper. But if she did, then they were fair game – even if she had no other admissible evidence of the other robberies, she was entitled to hope that Tucker would tell the truth (as the prosecutor believed the truth is or may be, based on the information that gave her the good faith belief), and that would give her the evidence she wanted. And in this case, she did have a good-faith basis – a statement Robson had made to the FBI. The statement was clearly testimonial, and couldn’t be admitted against Tucker, given that she had not had a chance to cross-examine him. It wasn’t offered, and the jury never even learned of its existence, though they might well have inferred that the prosecutor was basing her questions on something of the sort. But the statement could, without violating the Confrontation Clause, form the good-faith basis for the prosecutor to ask her questions, and that is what the 8th Circuit properly held.

So clearly in Tucker the prosecutor did to ask the jury to infer the truth of a statement that could not itself be admitted; the logic of the offer did not require that. There may have been some risk that the jury would infer such a statement, but (a) the jury would not necessarily know what basis of information the prosecutor had for asking the question, and (b)the risk of such an inference is made much more tolerable by the fact that the defendant opened the door to impeachment by denying a proposition that the prosecution had good reason to believe was true. So neither aspect of the test I have suggested was violated.

An illustration of the dangers of the New Mexico rule in Bullcoming

Hon. Dib Waldrip, a Texas trial court judge, active student of the Confrontation Clause, and reader of this blog, has told me about a recent case that illustrates the value of having the analyst who performed a lab test testify at trial – or, put another way, a danger that will not be prevented unless Bullcoming is reversed. He has given me permission to report on it here.

The defendant was charged with possession with intent to distribute a quantity of methamphetamine of 4 grams or more but less than 200 grams. In Texas, this is a first-degree felony with a punishment range of 5 to 99 years or life and a fine up to $10,000.00.

The official lab report, signed by the analyst who performed the actual test, reflected the presence in the tested substance of methamphetamine with an aggregate weight of 4.51 grams. The analyst testified at trial. Using his personal notes to refresh his memory, he testified that the aggregate weight of the methamphetamine was 1.51 grams. The prosecutor then asked the analyst to review the lab report. After a pause the analyst testified that report was in error and that his notes reflected the correct amount. (Apparently, a clerk prepared the report from the notes of the analyst and made the error.)

Soon after, the prosecutor moved to dismiss. The judge granted the motion, with thanks to the analyst for his integrity. But it appears that earlier, before a different judge, a co-defendant had entered a plea based on the erroneous report.

Mistakes like this might not happen every day, but by now we have heard enough evidence of lab errors that we should not think that they are extraordinarily rare. It has always seemed to me that, before sending a person to prison, perhaps for many years, it is not too much to ask that a someone with personal knowledge of the facts recited in a report that is critical to conviction come to court to testify in person about it.

Cert petition on the audience question

An interesting and very capable petition for certiorari was filed this week in Racz v. California, 2011 WL 1689305. The petition seeks review of an unpublished decision of the California Court of Appeal in a "statements from the grave" case. Racz was convicted of murdering his wife, who disappeared. Among the evidence introduced against him at trial was a series of statements made by his wife, shortly before her disappearance, to friends and family members describing him as violent and expressing fear of him.

The petition ably shows that there is a sharp conflict of authority on the question of whether a statement can be deemed testimonial even though it was not made to governmental authorities. Regular readers of this blog will know that I believe the answer to that question should be affirmative. This is an important issue that the Supreme Court should resolve soon; whether this case is a good vehicle for that purpose, I do not know.

Even assuming an affirmative answer to that question, one would have to go further to conclude that the statements here were testimonial, but I think it reasonable to conclude that they were; it appears that the wife probably made the statements fully anticipating the possibility that she would be murdered and that her statements would provide evidence against her husband.

Even assuming the statements are testimonial, in an ideal world I believe a court should consider whether the accused forfeited the confrontation right by murdering his wife. But Giles v. California appears to foreclose that possibility.

Further proof that the death of Crawford has been greatly exaggerated comes in the form of a recent decision of the United States Court of Appeals for the District of Columbia Circuit, United States v. Smith (D.C. Cir. Apr. 15, 2011), passed on to me by blog reader Stu Dedopoulos. Smith contended that the trial court had committed error by allowing the prosecution to prove a prior felony conviction – a predicate for a charge of felon-in possession-of-a-firearm – by introducing letters from a state court clerk, rather than a certified record or in-court testimony. A unanimous (and notably conservative) panel – Judges Sentelle writing, joined by Judges Ginsburg and Kavanaugh – agreed.

The decision breaks no new ground; the clerk’s letter was plainly testimonial under Melendez-Diaz. But it is notable nonetheless for adhering to a distinction drawn by that case. As the Smith decision points out, under Melendez-Diaz

[a] clerk is “permitted to certify to the correctness of a copy of a record kept in his office, but [has] no authority to furnish, as evidence for the trial of a lawsuit, his interpretation of what the record contains or shows, or to certify to its substance or effect.”

In other words, the prosecution should have produced a certified copy of the conviction record rather than a clerk’s letter – even though the letter bore the seal of the clerk’s court – describing what was in the records. That should be easy enough for prosecutors to do; I do not anticipate that this decision, if followed nationally, will create any significant administrative burden.

Though it’s not a relevant inquiry under the Confrontation Clause, one might still wonder whether this requirement achieves any significant gain in accuracy. Sure – to prove whether there was a conviction, or what it was for or what the punishment was, or when it was entered, the better evidence is the certified copy of the record itself rather than a second-hand account of it.

The tougher question is whether this distinction reflects any robust principle of confrontation law. The certificate of the conviction record itself appears to be a testimonial statement. It’s an assertion that the record is a genuine copy. And presumably it was made in anticipation of, and for purposes of, litigation. (I suppose that last point might be somewhat debatable, because perhaps court clerks get asked to do certified copies of conviction records for all sorts of purposes. But I’m guessing that when a federal prosecutor wants a copy of such a record for use in prosecuting a felon-in-possession charge the court clerk understands what’s happening.)

But clearly, as discussed in both the majority and dissenting opinions in Melendez-Diaz, there is a long history, going back before the framing of the Confrontation Clause, of certain copies of official records being admitted against criminal defendants. Certainly this rule had, and has, practical advantages: It meant, for example, that a clerk would not have to travel from Westminster to the provinces to prove the contents of an official record. But if all that is to be said for the rule is that it saves time, trouble, and inconvenience, that might leave us very uneasy; does that open the door to general balancing? The Melendez-Diaz cordoned off this rule on historical grounds, and I think that's fair enough. Beyond that, I suspect it reflects the long-standing stature of the royal seal; a rule of law effectively gave documents under seal the status of originals. A certified copy, I think, is a descendant of the less-accessible seal.

Of course, in older times a copy under seal was not an electronic reproduction of an image but rather a product of hand copying of communicative characters. If in Smith the clerk's letter had been a verbatim copy of the document, it would have been closer to the case of the old-fashioned seal.

I believe the role of the seal and its importance with respect to proof of the contends of official documents is an important subject for future research.