Wednesday, April 11, 2012
Cruz Control?: Could The Bruton Doctrine Provide A Solution To The Problem Facing The Court In Williams v. Illinois?
In Bruton v. United States, 391 U.S. 123 (1968) and its progeny, the Supreme Court has held that the Confrontation Clause of the Sixth Amendment is violated by the admission at a joint jury trial of a co-defendant's confession that facially incriminates another defendant if the co-defendant does not testify at trial. So, for example, If Carl confesses to Police Officer Peters, "Dan and I robbed the bank," the prosecution could not call Peters to testify to this statement at the joint jury trial for Carl and Dan if Carl chose not to testify. The thinking of the Court in Bruton was two-fold: (1) Carl's confession is not admissible against Dan, and even if the judge instructed the jury only to use Carl's confession as evidence of Carl's guilt, there would be too strong of a likelihood that the jury would use the confession as evidence of Dan's guilt; and (2) the jury's likely use of Carl's confession as evidence of Dan's guilt would have a "devastating effect" on Dan's defense.
But what if Dan himself confessed to the crime? Wouldn't that mean that Dan devastated his own case and could not complain about the admission of Carl's confession? The Supreme Court answered this question in the negative in Cruz v. New York, 481 U.S. 186 (1987). According to the Court in Cruz, the admission of Carl's "interlocking" confession in this latter situation would be more devastating because
it seems to us that "interlocking" bears a positively inverse relationship to devastation. A codefendant's confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant's alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant's confession does no more than support the defendant's very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession—on the ground that it was not accurately reported, or that it was not really true when made.
Of course, Bruton and Cruz are still good law today, and some, myself included, have argued that the Bruton line of cases involves a separate strain of Confrontation Clause analysis than do the Crawford line of cases. So far, the vast majority of courts have disagreed with me, and if they're right, could Bruton/Cruz provide a solution to the Supreme Court's pending decision in Williams v. Illinois and similar cases?
While riding on the El train last week, I read two fascinating articles back-to-back: 'Bull' Coming from the States: Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming’s Confrontation Clause Loopholes, a note by Tara R. Price, a law student at the Florida State University College of Law, and She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect', 17 Tex. Wesleyan L. Rev. 481 (2011), by Mark Godsey, a professor at the University of Cincinnati College of Law, and Marie Alou, an Ohio Innocence Project fellow.
The new Confrontation Clause case is Williams v. Illinois (10-8505). In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify. The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done. The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.
That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case. In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible. Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered. One of them was a situation in which "an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." The Court apparently granted the Williams case on Tuesday to judge that very situation.
The fundamental question in Williams, then, is whether a second analyst can rely upon a nontestifying first analyst's report for her testimony pursuant to Federal Rule of Evidence 703 and state counterparts even though the underlying report could not be admitted consistent with the Confrontation Clause to prove the truth of the matter asserted unless the first analyst testified. In People v. Williams, 939 N.E.2d 268 (Ill. 2010), the Supreme Court of Illinois answered this question in the affirmative, finding as follows:
The defendant argues that the State introduced the Cellmark report to establish the truth of the matter asserted and it is therefore hearsay. Without Cellmark's report, according to the defendant, Lambatos could not have given her testimony that the defendant's DNA matched the profile deduced by Cellmark. The State counters that Lambatos testified about the Cellmark tests only to explain how she formed her own opinion. Therefore, the only statement that the prosecution offered for the truth of the matter asserted was Lambatos' own opinion. According to the State, presentation of the person who prepared the DNA profile at Cellmark was not necessary for confrontation purposes. We agree with the State.
I have disagreed with this type of conclusion before (see, e.g, here), and Price disagrees with it her piece, arguing, inter alia, that
While it is true that it is Lambatos’s expert opinion that is at issue, so too is the authenticity and accuracy of the evidence upon which she based her opinion. Williams should have had not only the opportunity through cross-examination to test the credibility and reliability of the expert, but also the authenticity and reliability of the scientific evidence upon which she based her opinion. Williams could not have this opportunity without the ability to cross-examine the Cellmark analyst who certified the test results.
That takes me to the Thomas Dolby-inspired piece by Godsey and Alou. Most people in the legal field have heard of and accept to at least a certain degree the so-called CSI-effect. Under the CSI-effect, jurors who have watched shows such as CSI come to expect the prosecution to put on a dog and pony show replete with forensic science and high tech evidence that conclusively proves the defendant's guilt. When those pyrotechnics aren't present, jurors are more inclined to acquit than they were in the days before CBS head honcho Les Moonves made the last second decision to move forward with Anthony Zuiker's show rather than yet another Tony Danza vehicle.
In their article, however, Godsey and Alou posit that there is a reverse-CSI effect. In other words, when prosecutors do present forensic science evidence, jurors who have been taught by shows like CSI that such evidence is infallible place too much stock in such evidence and too readily convict despite significant evidence about the problems with such expert evidence.
So, let's revisit Williams v. Illinois through a Bruton/Cruz prism. Bruton first holds that the co-defendant's (Carl's) confession is inadmissible because jurors would use it as evidence of the defendant's (Dan's) guilt, even if given a jury instruction to the contrary. In a case like Williams, the second analyst testifies and references the findings of the first analyst. What's the likelihood that jurors will abstain from using the first analyst's findings to prove the truth of the matter asserted (that the defendant is a DNA "match"), even if given a jury instruction? My guess would be that the answer is "not very likely." Indeed, it is arguable that the answer is "impossible." In a prior post, I cited Julie Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008), for the proposition that
In the post-Crawford cases that rely on this non-hearsay rationale to permit expert witnesses to repeat testimonial statements at trial, courts reason that the statements are offered not for their truth, but only "to show the bases of [the expert's] opinions." Such reasoning is widespread. Of the more than one hundred cases applying Crawford to expert reliance on testimonial hearsay, over thirty rely on this particular non-hearsay rationale to hold that there is no constitutional violation. However, as discussed above, it is not logically possible for a jury to use the hearsay statements to assess the weight of the expert's opinion other than by considering their truth. Unless the jury is thought to evaluate the expert's opinion simply based on the quantity of facts or data on which it relies, or perhaps on the type of data relied upon, it cannot but consider the substance of the hearsay statements that form the basis of the opinion. After all, should the jury find that the hearsay statements are false, it is difficult to imagine how the statements might support the expert's opinion; only if they are true can they reasonably be said to offer any weight to the opinion. (emphasis added).
If you agree with Professor Seaman, the situation is actually much worse in a case like Williams than in a case like Bruton because jury misuse of the subject statement is not merely a strong probability; it is an inevitability. And secondly, as Price notes in her piece, a defendant in a case like Williams, like a defendant in a case like Bruton, is unable to cross-examine the person who made the subject statement. Indeed, in a case like Williams, the first analyst isn't even in he courtroom at trial, unlike the co-defendant in a Bruton doctrine case.
Third, Bruton was based upon the devastating practical effect that admission of the co-defendant's (Carl's) confession would have on the defendant's (Dan's defense). In a case like Williams, you could see the prosecution claiming that the jury's potential use of the first analyst's findings would not be "devastating" because they still have the second analyst reaching the same conclusions. But even barring the issue of whether the second analyst's conclusions would be truly "independent" of the first analyst's findings, that still leaves Cruz.
And my argument would be the the two analysts' "interlocking" conclusions would be analogous to the "interlocking" conclusions in Cruz. Sure, it is devastating if one analyst says the defendant is a DNA match, but the defendant can always challenge the analyst's credentials, claim that there was an error, etc. But when jurors hear that two separate analysts both found that the defendant is a DNA match and the defendant can cross-examine the first analyst, the defendant's case is truly devastated and he bears little to no chance of prevailing. And if Godsey and Alou are correct about the reverse-CSI effect, could we really conclude that such "interlocking" conclusions are any less devastating than "interlocking" confessions in a case like Cruz?