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June 29, 2011
Independence Day, Take 3: Why I Think That The Supreme Court Will Find No Confrontation Clause Violation In Williams v. Illinois
Yesterday, I noted that the Supreme Court granted cert in Williams v. Illinois (10-8505) to address a question left unanswered by Bullcoming v. New Mexico: Is the Confrontation Clause violated when an expert witness for the prosecution relies upon a testimonial report prepared by an analyst who does not testify at trial, but the report itself is not admitted into evidence to prove the truth of the matter asserted? This was different from the question resolved by Bullcoming, in which the Court held that the Confrontation Clause is violated when such a testimonial report is actually admitted into evidence. Indeed, Justice Sotomayor made this distinction clear in her concurring opinion in Bullcoming, which I wrote about yesterday. In that post about Sotomayor's concurring opinion, I mused about whether the Bullcoming dissent would be able to create a 5-4 majority finding no Confrontation Clause violation in a case where a testimonial report is relied upon but not actually admitted into evidence to prove the truth of the matter asserted. And, based upon the facts of Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), I think the dissent will achieve this result.
Williams v. Illinois
In Williams, L.J. was allegedly sexually assaulted, kidnapped, and robbed by the defendant Sandy Williams on February 10, 2000. Thereafter,
Dr. Nancy Schubert conducted a vaginal exam of L.J. and took vaginal swabs, which were then sealed and placed into a criminal sexual assault evidence collection kit along with L.J.'s blood sample. The kit was sent to the Illinois State Police (ISP) Crime Lab for testing and analysis.
On February 15, 2000, forensic biologist Brian Hapack with the ISP Crime Lab received L.J.'s sexual assault evidence collection kit and performed tests that confirmed the presence of semen. Hapack placed the swabs in a coin envelope, sealed the envelope, and placed the evidence in a secure freezer....
On August 3, 2000, police arrested the defendant for an unrelated offense and, pursuant to a court order, drew a blood sample from the defendant. On August 24, 2000, forensic scientist Karen Kooi performed an analysis on the sample that consisted of four quarter-sized bloodstains on a filter card. Kooi extracted a deoxyribonucleic acid (DNA) profile and entered it into the database at the ISP Crime Lab. Meanwhile, the samples from L.J.'s sexual assault kit were sent to Cellmark Diagnostic Laboratory in Germantown, Maryland, for DNA analysis on November 29, 2000. Cellmark returned L.J.'s vaginal swabs and blood standard to the ISP Crime Lab on April 3, 2001. Cellmark derived a DNA profile for the person whose semen was recovered from L.J. According to ISP forensic biologist Sandra Lambatos,...the DNA profile received from Cellmark matched the defendant's DNA profile from the blood sample in the ISP database.
Lambatos began her testimony with a brief explanation of polymerase chain reaction (PCR) testing. PCR testing, according to Lambatos, is one of the most modern types of DNA analysis available and is generally accepted in the scientific community. Lambatos explained how PCR analysis can be used to identify a male profile from a semen sample. First, an analyst conducts a procedure that isolates and extracts DNA from a sample that may include a mixture from a particular defendant and the victim. The DNA is not large enough to test at this point, and requires amplification to form a more workable sample. After amplification, an analyst can measure the length of an individual specific strand through a process called electrophoresis. A computer translates this measurement onto a graph called an electropherogram. The electropherogram is a representation of the individual's specified DNA data into a line with peaks representing the lengths of the DNA strands of the 13 STR regions. Reports generally also provide a "table of alleles" showing the DNA profile of each sample. She also stated that the statistical probability of a match can also be determined by entering the alleles into a frequency database to learn how common they are in the general population.
Lambatos further testified that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work. As mentioned, she used the DNA profile from Cellmark to match the DNA profile from the defendant's blood sample, which was contained in the ISP database....Cellmark's testing and analysis methods were generally accepted in the scientific community according to Lambatos.
When the prosecutor then asked Lambatos for her expert opinion regarding the DNA match, "[d]efense counsel objected and asserted that Lambatos could not rely upon the testing performed by another lab." The trial judge deferred his ruling on the issue, and
Lambatos then testified that a match was generated of the male DNA profile found in the semen from L.J.'s vaginal swabs to the defendant's male DNA profile from the defendant's blood standard. In response to defense questioning, Lambatos restated her interpretation of the alleles at each of the 13 locations. She testified about several locations where she visually filtered out spurious alleles and “background noise” and distinguished the defendant's profile. Lambatos concluded that in her expert opinion, the semen from L.J.'s vaginal swab was a match to the defendant. Lambatos testified that the probability of this profile occurring in the general population was one in 8.7 quadrillion black, one in 390 quadrillion white, and one in 109 quadrillion Hispanic unrelated individuals. She did not observe any degradation or irregularities in the sample from L.J.'s vaginal swab.
She stated that, in general, if "there was a question of a match, then we would investigate that further by looking at the electropherograms from all the cases involved and do some more comparisons on that." She explained that in looking at Cellmark's report, she interpreted it and "I did review their data, and I did make my own interpretations so I looked at what * * * they sent to me and did make my own determination, my own opinion." While Lambatos testified to her conclusion informed by Cellmark's report, Cellmark's report itself was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her own opinion, she did not read the contents of the Cellmark report into evidence.
Defense counsel then repeated his objection, claiming, inter alia, that Lambatos' use of Cellmark's report violated the Confrontation Clause. The trial court disagreed, stating,
"I don't think this is a Crawford scenario, and I agree with the State that the evidence is—the issue is, you know, what weight do you give the test, not do you exclude it and accordingly your motion to exclude or strike the testimony of the last witness or opinions based on her own independent testing of the data received from Cellmark will be denied."
After he was convicted, Williams appealed, claiming, inter alia, "that his sixth amendment right was violated by Lambatos' testimony concerning Cellmark's report," and his appeal eventually reached the Supreme Court of Illinois. The Illinois Supremes initially noted that it "has long held that prohibitions against the admission of hearsay do not apply when an expert testifies to underlying facts and data, not admitted into evidence, for the purpose of explaining the basis of his opinion." The court then rejected Williams' "suggestion that Lambatos was merely a 'conduit' for Cellmark's report and that the report was entirely dispositive of Lambatos' opinion," instead finding that
Her testimony consisted of her expert comparison of the DNA profile in the ISP database with the DNA profile from the kit prepared by Cellmark. She used her own expertise to compare the two profiles before her: the blood sample prepared by Kooi and the semen sample prepared by Cellmark. She also did not observe any problems in the chain of custody or any signs of contamination or degradation of the evidence. Lambatos ultimately agreed with Cellmark's results regarding the male DNA profile. But Lambatos additionally made her own visual and interpretive comparisons of the peaks on the electropherogram and the table of alleles to make a conclusion on the critical issue: that there was a match to the defendant's genetic profile. Accordingly, Cellmark's report was not used for the truth of the matter asserted and was not hearsay (emphasis added).
The court also rejected Williams' contention that his case was "'directly analogous' to the United States Supreme Court's recent holding of Melendez-Diaz v. Massachusetts," concluding that
Lambatos testified about her own expertise, judgment, and skill at interpretation of the specific alleles at the 13 loci, and confirmed her general knowledge of the protocols and procedures of Cellmark. Lambatos also conducted her own statistical analysis of the DNA match. She did not simply read to the judge, sitting as a fact finder, from Cellmark's report. This is in contrast to Cellmark's report, which did not include any comparative analysis of the electropherograms or DNA profiles and was not introduced into evidence. Cellmark's electropherogram, rather, was part of the process used by Lambatos in rendering her opinion concluding that the profiles matched. Thus, Lambatos' opinion is categorically different from the certificate in Melendez-Diaz (emphasis added).
As I noted in my post yesterday, Justice Sotomayor held in her Bullcoming concurrence that the Court was not presented with four factual circumstances in Bullcoming, including the circumstance "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." I then concluded that based upon the language used by Justice Sotomator, it was likely that she would find no Confrontation Clause problem with an expert witness offering opinion testimony pursuant to Rule 703 based upon a testimonial report prepared by an analyst who does not testify at trial.
My main question involved the issue of the circumstances under which Justice Sotomayor would find that a testifying expert's opinion was truly an "independent opinion" rather than an opinion dependent upon a testimonial report. For instance, I cited to the opinion of the Court of Appeals of North Carolina in State v. Hough, 2010 WL 702458 (N.C.App. 2010), in which a chemist weighed drugs and prepared a report but did not testify, and a second chemist used the report as the basis for expert testimony on the weight of the drugs without herself testing the drugs. I argued that under this circumstance, Justice Sotomayor should (but might not) find that the testifying chemist's opinion was not truly independent, meaning that there was a Confrontation Clause violation.
In Williams, however, Lambatos' opinion seemingly was truly "independent." Indeed, the trial court noted that Lambatos conducted "independent testing." Moreover, as the Supreme Court of Illinois noted, Lambatos "made her own visual and interpretive comparisons" and "conducted her own statistical analysis of the DNA match." Given these findings, I think it is clear that Justice Sotomayor will find that Lambatos' opinion was truly "independent" and will thus join the four Bullcoming dissenters to form a five Justice majority concluding that there was no Confrontation Clause violation in Williams.
Now, will this be the correct ruling, and what will it tell us about cases like Hough in which there is not independent testing by the testifying expert? I'm not sure yet, but I will have more thoughts over the course of the summer.
June 29, 2011 | Permalink
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