Something brewing?

Papers in three of the cases mentioned in my post of February 27 – Derr v. Maryland, No. 13-637, Galloway v. Mississippi, No. 13-761, and Edwards v. California, No. 13-8618 – have been
distributed for this Friday’s conference.  Derr, incidentally, was Petition of the Day  on SCOTUSBlog on Monday – but Medina v. Arizona was previously Petition of the Day, and that got denied.  (It’s still four Justices, not designation by SCOTUSBlog, required for a grant.)  Two other petitions filed since that post that raise Williams-related issues, Bolus v. Pennsylvania, No. 13-1078, and Marino v. North Carolina, No. 13-1081, are also on for this conference.  (In each of these cases, the state waived its right to respond and the Court has not requested a response.)

Two other Williams-related cases, James v. United States, No. 13-632, and Johnson v. California, No. 13-8705, have been distributed for the following conference, on April 25.

All this activity is worthy of attention; something might happen soon.  But it does not necessarily mean the Court will soon grant one of the petitions.  It doesn’t even necessarily mean that it will soon decide whether to grant one of the petitions.  Turner v. United States, No. 13-127, and Ortiz-Zape v. North Carolina, No. 13-633, have been held for months.  Yohe v. Pennsylvania, No. 13-885, was distributed for the conference of March 28 and is still being held.  And there are other cases in the pipeline.  All the papers are now filed in Brewington v. North Carolina, No. 13-504, but it has not been redistributed.  And in Cooper v. Maryland, No. 13-644, the Court recently requested a response from the state, due May 9.  Also, another petition filed since my post of Feb. 27, in Alger v. California, No. 13-1102, is pending.  I invite readers to tell me about other cases presented to the Court raising Williams-related issues.

Pending and recent cert petitions on forensic lab reports

    This week, the Supreme Court denied cert in Medina v. Arizona, No. 13-735.  The case presented the question of whether an autopsy report concluding that the death was a homicide caused by blunt force trauma is testimonial.  I sure think that this ought to be an easy question to answer in the affirmative.  I do not know whether the Court is not ready to answer the question, or it believed that the case was not an appropriate vehicle for resolution of the issue.  Another pending autopsy case is James v. U.S., No. 13-632, which was filed on Nov. 22.  (There the autopsy report concluded that the cause of death was acute ammonia poisoning, but it did not otherwise indicate that the cause was homicide.)  The Government has gotten three extensions of time to file its response, which is now due March 17.

    The Court has been sitting on other petitions raising other issues related to forensic reports, and one way or another asking for clarification of Williams v. Illinois.  Turner v. U.S., No. 13-127, Ortiz-Zape v. North Carolina, No. 13-633, and Cooper v. Maryland, No 13-644, have all been distributed for conference and held.  After Brewington v. North Carolina, No. 13-504, was distributed, the Court requested a response from the state; that was filed on February 3, and the reply brief on February 13.  And in Yohe v. Pennsylvania, No. 13-885, filed on January 22, the state filed its response on February 24.  So these cases too will soon go on the conference calendar, but the best guess is that they will be held as well, pending completion of the papers in one or more of the other pending cases:  Galloway v. Mississippi, No 13-761, filed Dec. 20, 2013, with the state’s response now due, after extension, on March 7; Edwards v. California, No. 13-8618 (in forma pauperis, seeking review of People v. Edwards, 306 P.3d 1049 (Cal. 2013)), filed Feb. 7, with the state’s response due March 10; and Derr v. Maryland, No. 13-637, which has twice been distributed for conference, resulting in a request from the state for a response, due March 17.  So I am sure that the Court will be impressed by the fact that there is a lot of confusion in the lower courts; whether it will be motivated to step in is of course another question.

    Meanwhile, the Court has denied several petitions raising Williams-related issues.  It denied a few, including the one in New Mexico v. Navarette, which I discussed in a prior blog post, on the first day of term (when, by the way, it also denied my petition in Berkman v. Indiana, raising another confrontation issue), and it has since denied a couple of others, Dyarman v. Pennsylvania, No. 13-611, and Lusk v. United States, No. 13-403.

    I encourage any readers who are aware of other pending (or recent) petitions that might be of interest to let us know.

Pending cert petitions seeking clarification of Williams

An anonymous reader has pointed out that the second petition for certiorari in Turner v.  United States, No. 13-127, one of the cases that was GVRed (grant, vacate, remand) in light of Williams v. Illinois, came before the Supreme Court's conference on Friday but the Court did not take any action.  (The case was originally distributed for the conference of September 30, but before hen the Court requested a response form the Government, so the case was relisted.)  It may well be that the Court realizes that it needs to do something in light of the confusion created by the fractured decision in Williams, but it has not yet decided which case to take.  There are several others pending.  The Court has already requested a response from the State in Brewington v. North Carolina, No. 13-504, filed in October, and the State's response is not due until February 3.  Derr v. Maryland, No. 13-637, was filed on Nov. 20, Ortiz-Zape v. North Carolina, No. 13-633, on Nov. 21, and Cooper v. Maryland, No. 13-644,  on Nov. 22.  If readers know of other cases, I'd be glad to learn of them.  It looks like something might be brewing.  Comments welcome! (And I am hoping to post more on this blog in the next several months than I have in the last several!)

Two pending cert petitions

To my regret, I have not posted on this blog for a long time.  I will try to be better about that in the future.

The Supreme Court opens its new term next week, and there are at least two pending cert petitions, both in murder cases, raising Confrontation Clause issues.

One is my own, in Berkman v. Indiana, No. 12-10691, seeking review of Berkman v. State of Indiana, 976 N.E.2d 68 (Ind. Apps. 2012), transfer denied, 984 N.E.2d 221 (Ind. 2013).  The petition raises two issues:  (1) The Indiana courts hold that a discovery deposition provides an opportunity for cross-examination sufficient to satisfy the Confrontation Clause.  I think this is wrong, and there is a clear conflict among states on this point.  (2) In this case, the trial and appellate courts applied what I contend amounted to a per se rule that a transient disability is sufficient for a determination of unavailability.  Numerous courts have done the same, but the rule properly followed by most jurisdictions is that a determination of unavailability requires consideration and articulation of various factors, including the likely duration of the disability.  Here are links to the petition, the appendix to the petition, the brief in opposition, and the reply brief in support of the petition.

The second is New Mexico v. Navarette, seeking review of State v. Navarette, 294 P.3d 435 (N.M. 2013).  The New Mexico Supreme Court held – as I think should be obvious – that an autopsy report performed as part of a murder investigation is testimonial for purposes of the Confrontation Clause. The petition seeks not only to reverse that holding but also to cut back dramatically on Crawford. Here are links to the petition and the reply brief in support of the petition on Westlaw and SCOTUSblog, and here is one to the brief in opposition.  Sooner or later the Court will probably have to address the question of whether autopsy reports in murder cases are testimonial -- though I think it should be a no-brainer.  Whether this is an appropriate case is another matter.

Three decisions from the California Supreme Court on forensic reports

The California Supreme Court issued three decisions today on the Confrontation Clause and forensic reports.  Two of them divided the court and show how bad things can get in light of the confusion sown by the US Supreme Court's decision in Williams v. Illinois

The lead case, People v. Lopez, involves a lab report of blood alcohol content.   Seems familiar, doesn't it?  But a majority of the court says that the analyst doesn't have to show up because this report was not sufficiently formal, given where the analyst's signature was on the report.  Maybe a subsequent reading will make this appear less bizarre than it appears to me at the moment, but two quick reactions:  (1) The majority engages in a fine-tuned analysis of the placement of signatures and notations that I think utterly loses sight of the fundamental right at stake of an accused to be confronted with those who provide evidence against him.  (2) The decision, if it stands, provides a recipe for avoiding the confrontation right with respect to forensic reports, something that many labs and prosecutors have been eager to accomplish (one of the concurring opinions is pretty explicit on this).  This recipe will denigrate the quality of evidence presented.

The second case, People v. Dungo, involved an autopsy report in a murder case.  The majority decision says this was not testimonial because it was not made with the primary purpose of creating evidence for trial.  My reaction to this is on the order of "Give me a break."  I understand that there are all sorts of reasons why a medical examiner might do an autopsy.  But by the time the examiner is ready to write a report saying that death was by strangulation, he knows exactly what he is doing -- creating prosecution evidence in a murder case.  I am not a fan of the "primary purpose" test, but if this autopsy report doesn't meet it then the test has become farcial.

The third case, People v. Rutterschmidt, was decided on harmless error grounds, without dissent.  But it's worth mentioning, because it's not every day that a pair of elderly ladies is charged with having taken out multiple insurance policies on the lives of two men, in incidents six years apart, and then murdered them by running over them while they were in compromised condition.

Source of the "targeted individual" test?

I hope to be offering more commentary on Williams within a few days.  Meanwhile, perhaps I can offer a solution to one mystery.  Justice Kagan quite sensibly says that where Justice Alito's "targeted individual" test comes from "is anybody's guess."  One answer, ironically, might be right here on this blog.  In a couple of commentaries, and then in a longer one in January 2011 that I put in a full posting, titled "Pure Cold Case" Prosecutions & The Confrontation Clause:  What Does The Future Hold?, Paul Vinegrad, a frequent contributor to this blog -- always resourceful and frequently, as here, wrong-headed, in my view -- suggested this test.  (He spoke about the need for "reasonable suspicion" to detain or arrest "a particular person.")  You can see Paul's posting, and the critical commentary I offered on it, by clicking here.

Of course, even if this does solve the mystery of where Justice Alito got the idea, it only pushes the mystery back somewhat.  Referring to Paul's test in my response, I said, "I’m not sure where he gets that – so far as I know there is no historical basis for it." And I pointed out what would be its stunning consequences -- for example, rendering outside the scope of the confrontation right a police officer's formal description of a crime scene, made before a suspect was identified but in full anticipation of use at an eventual trial.

Five justices rejected this theory, and for good reason.  I am sorry that four justices remain so desperate to limit the impact of Melendez-Diaz that they are willing to sign on to just about any theory that achieves that objective, no matter how lacking in foundation it might be and what devastation it would work on the confrontation right.  But five remains greater than four.

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

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

Splintered Court

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

No Plausible Alternate Explanation

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

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

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

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

Identity of the Fact-finder

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

Certification

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

Petition in Rose denied

I hadn't seen the order list before, but now I have. The etition for certiorari that I filed in Rose was indeed denied. So I guess that this is a conflict that will persist for a while longer; in some states, the Constitution is deemed to prevent child witnesses from testifying attrial from behind a screen, and in some states it isn't. Perhaps the Court thought the conflict was not yet deep enough, but it's impossible to know. I hope that befoer too long goes by they do take a case on this issue.

Opinions in Williams

You can read the opininos in Williams v. Illinois by clicking here. Commentary from me later.

Williams affirmed without majority opinion

Scotusblog reports that Williams was affirmed 5t-4, with Justice Alito writing for four justices (the Melendez-Diaz and Bullcoming dissenters), Justice Thomas concurring in the result, and the others dissenting. That's all I know for now; I haven't seen the opinions. I'll post them soon, and offer some comments, probably today, maybe tomorrow. I also know that the Court did not grant the petition for certiorari in Rose -- but I haven't seen the order list yet, so I don't know for sure whether it was denied.

BIO and reply brief in Rose v. Michigan

I've been tied up, in large part with grading, but now I'm going to try to catch up on some postings I've been meaning to make over the last few weeks. For starters, here are the Brief in Opposition and my Reply Brief in support of the petition for certiorari in Rose v. Michigan, which I presented in a prior post. (The petition seeks review of a decision allowing a child to testify from behind a screen in the trial courtroom; it raises the questions of whether this procedure was inherently prejudicial and of whether Maryland v. Craig, 497 U.S. 836 (1990), should be overruled.) The Supreme Court may decide whether or not to grant the petition as early as June 18.

Petition for certiorari on procedure for child testimony

I'm sorry for the delay, but I am posting now a petition for certiorari that I filed on March 8, in Rose v. Michigan, raising issues concerning the procedures for children's testimony. In this case, the child was allowed to testify at trial from behind a screen that quite obviously blocked her view of the accused. The Michigan court of appeals held this procedure permissible. People v. Rose, 808 N.W.2d 301 (2010). The state supreme court granted review and heard argument, but eventually decided not to rule on the merits; Justice Marilyn Kelly dissented from that decision. People v. Rose, 805 N.W.2d 827 (2011).


There is a clear conflict of state courts as to whether the procedure is unconstitutionally prejudicial. The petition raises this issue and also the broader question of whether Maryland v. Craig should be overruled.

You can see the petition here and the appendix (which includes the opinions in both the court of appeals and the state supreme court) here.

The state has asked for and received an extension until May 14 of its time to file a Brief in Opposition.

The latest from the European Court of Human Rights

Last month, the Grand Chamber of the European Court of Human Rights decided Al-Khawaja and Tahery v United Kingdom. This is an obviously important decision, and I have thought to write a post about it, but I haven't had time. So I've asked William E. O’Brian, Jr., an American lawyer who is an Associate Professor of Law at the University of Warwick in England and who has in interest in confrontation matters, to do a write-up. Here it is, with a short follow-up commentary by me following.

* * *
Al-Khawaja and Tahery v United Kingdom, (Nos 26766/05 and 2228/06, decided December 15, 2011) is a new and very important decision from the Grand Chamber of the European Court of Human Rights on confrontation. It contains for the first time a discussion of the Crawford case and its progeny, along with a discussion of similar cases from various other common law jurisdictions. Below I will briefly summarize the history of the case and the most important aspects of the new ruling. I have published several pieces comparing ECHR and UK law with US law on these matters before this decision, which I would be happy to share with those interested in knowing more.

Al-Khawaja was convicted of indecent assault on two women, one of whom committed suicide prior to his trial; her statement to the police was read at trial. Tahery was convicted of wounding with intent; the only witness to the altercation that was able to identify the defendant refused to testify at his trial due to fear, and his statement to the police was read at trial. Both appealed unsuccessfully in the English courts, and brought cases before the ECHR alleging that the use of their police statements at trial violated Article 6 § (3)(d) of the European Convention on Human Rights, which guarantees defendants in criminal cases the “minimum right”, inter alia, to “examine or have examined the witnesses against him.”

Previous decisions of the ECHR had interpreted this right fairly robustly, but had (in my own view) undermined this position by refusing to find violations in several cases where there was other evidence against the accused in addition to the hearsay evidence that was challenged. The leading case prior to this one was Luca v Italy, 36 EHRR 46 (2003), where the court held that a conviction based primarily on the statement of a co-accused to the police and prosecutor violated the Convention, because the conviction was based solely or to a decisive degree on statements that the accused had had no opportunity to examine. The original chamber that heard Al-Khawaja and Tahery invoked this “sole or decisive test” to find a violation in both cases. Al-Khawaja and Tahery v UK, 49 EHRR 1 (2009).

The UK government sought and obtained a Grand Chamber rehearing (more or less analogous to an en banc rehearing in a US Court of Appeals, although a Grand Chamber is final). Its position was bolstered by a unanimous judgment of the UK Supreme Court in R v Horncastle [2009] UKSC 14, [2010] 2 AC 373, in which the UK Supreme Court rejected various similar appeals, refused to follow the chamber decision, and subjected the “sole or decisive test” to withering criticism. In effect, the Grand Chamber decision furnished an opportunity for the ECHR to respond to the UK Supreme Court’s scathing attack on its previous confrontation jurisprudence.

The applicants argued that there were three possible approaches to the issues: (1) the “rigid and literal” approach of Crawford, (2) the chamber approach, under which untested hearsay could sometimes be used at trial but could not be the “sole or decisive” evidence against the defendant, and (3) the Horncastle approach, under which the defendant’s opportunity to examine the witness was simply a matter to be considered in determining whether the defendant had a fair trial overall. Applicants did not argue for the Crawford approach, undoubtedly because they did not need to, as it was reasonably clear, although not conceded by the UK, that the untested evidence was decisive in both cases.

The Grand Chamber decided that there were two requirements to avoid a violation. First, there must be a good reason for the non-attendance of a witness, and a violation can be found if there is no good reason for non-attendance even if the evidence in question is not “sole or decisive.” Second, if the conviction is based solely or to a decisive degree on evidence that the defendant has been unable to examine or have examined, the rights of the defendant may have been unduly restricted. But the Grand Chamber (see paragraph 147) rejected a rule that in such a case there has automatically been a violation. Instead, it held that cases where the untested evidence is the sole or decisive evidence require that the proceedings be subjected to “the most searching scrutiny,” including whether sufficient counterbalancing factors were in place to permit a fair and proper assessment of the reliability of the evidence. It rejected most of the UK Supreme Court’s arguments, which essentially asserted that other procedural safeguards provided in English law obviated the need for such scrutiny, but also decided that an inflexible rule finding an automatic violation whenever a conviction was based solely or decisively on hearsay “would transform the rule into a blunt and indiscriminate instrument.”

On the actual cases, the Court seems to have essentially split the baby, finding a violation in Tahery but not in Al-Khawaja. It relied in the latter case on the “similar fact” evidence of the other victim, along with the evidence that the deceased victim made similar statements to friends prior to her suicide, taken together with warnings delivered by the judge on the dangers of relying on her evidence in light of defendant’s inability to cross-examine, found that these provided sufficient counterbalancing factors. Two judges dissented, essentially arguing that the court should continue to adhere to the rule that a conviction based solely or decisively on untested evidence could not stand.

A few additional observations are in order.

First, the ECHR has not adopted a dividing line between “testimonial” and non-testimonial hearsay, but all of its cases have involved testimonial hearsay and at least one English court has held that Article 6 § (3)(d) only applies to such hearsay. The opinion in Al-Khawaja tends to use terms like “hearsay,” “untested evidence” and “absent witnesses” more or less interchangeably (see for example paragraph 147 of the majority judgment). The only references to the “testimonial” issue are in passages discussing Crawford and its progeny.

Second, the decision notes with approval previous indications in English decisions that there would be an exception for cases where the defendant’s own actions prevented the witness from testifying. In neither case was this a factor, however, as in Al-Khawaja it was conceded that the victim’s suicide was unrelated to the assault, and in Tahery’s case there was no evidence that the witness’s fear of testifying was due to threats or other actions by the defendant.

Third, both the majority and the dissenters adopt fairly narrow definitions of when evidence is decisive. The majority held that it should be understood as “evidence of such significance or importance as is likely to be determinative of the outcome of the case.” (paragraph 131). The dissent’s definition was even narrower, defining decisive evidence (in footnote 1 to the dissent) as “evidence without which the prosecuting authorities could not bring a case.”

Fourth, although no one argued for a Crawford approach, the dissenters do, in footnote 5, defend the Crawford rule against UK Government attacks on it as “absolutist and anachronistic,” while noting that it is “more exacting than our standard.”

Fifth, it is unclear to me why the court found that the victim’s statements to her friends in Al-Khawaja provided support for the police statement evidence that was challenged; there is no discussion of why those statements fare any better. The court does not view itself as laying down rules of evidence, but rather as ensuring that the trial is fair, and it may therefore believe that multiple incidents of hearsay may be sufficiently reliable to base a conviction on even if no one of them would be. Or it may be that these statements were not challenged because the parties assumed they were not testimonial, although the ECHR jurisprudence nowhere says that only testimonial hearsay is subject to Article 6 § (3)(d).

I have argued at length in favor of a robust approach along the lines of Crawford (but without the gloss of Giles), and am of course disappointed with the Grand Chamber ruling. But it is nowhere near as bad as the UK Supreme Court’s decision in Horncastle. The chief difficulty is that by leaving results ultimately subject to a balancing test, albeit a much stronger one than the UK courts wanted to employ, the ECHR may have let itself in for a large volume of future cases, whereas the previous Chamber judgment provided a much more bright line rule, although still subject to disputes over whether the evidence was “decisive” in individual cases.


William E. O’Brian Jr.
Associate Professor of Law
University of Warwick

* * *

I agree generally with Bill's analysis, and will offer just a few brief follow-up comments. First, as I have noted before, it is ironic that the courts in England – where the confrontation right reached fruition and which long proclaimed that right as one of the great advantages of its system as compared to those of continental Europe – now has to be dragged into enforcing the right by a court sitting in France.

Second, I think one reason why the European Court developed a theory of confrontation without a very clear textual basis for it is that most of the nations within its jurisdiction do not have a law of hearsay. Hearsay law tends to clutter the analysis, because hearsay is a very broad category and any rule excluding all or virtually all hearsay would be impractical. So it is unfortunate that in this decision, the European Court has been led into using the language of hearsay, presumably because it was reviewing a UK decision. It would be much better if the court focused on the fact that the right that it has developed under the Convention concerns not a general law of hearsay but rather the conditions under which the testimony of witnesses may be received.

Third, if it had done that, I think the court would not be so ready to dismiss the Crawford approach. As Bill points out, the balancing approach that the court adopts is a recipe for future difficulty. Recognizing that the confrontation right applies only to statements that are testimonial in nature – but that as to those it expresses a fundamental procedural right that is applied categorically – is not only a more principled approach but an entirely practical one as well.

A (mostly) bad decision from the Fourth Circuit

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

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

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

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

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

The court, drawing on its precedents, said,

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

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

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

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

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

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

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

And further:

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

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

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

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

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

The Cellmark report, and what it shows

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

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

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

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

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

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

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

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

On posting the Cellmark report

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

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

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

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

And here is the Comment:

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

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

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

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

Fifth Circuit allows testimony under pseudonyms

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The niqab and the structure of the confrontation right

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

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

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

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

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

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

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

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

The Cellmark report

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