Monday, September 17, 2012
The Supreme Court's most recent Confrontation Clause opinion -- Williams v. Illinois -- was issued while I was in the process of moving from Illinois to South Carolina, so I never really got the chance to address it on this blog. I did preview Williams in a prior post and correctly concluded that the Court would find no Confrontation Clause violation. But while I was right on the results, I was wrong on the reasoning, which is unsurprising giving that the post-Crawford Confrontation Clause framework seems to change from case to case. And, with the Court's fractured opinion in Williams, none of this is likely to change. So, what did the Court hold in Williams? Let's take a look at Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports (Download Confrontation Clause Update), by Professor Jessica Smith of the University of North Carolina School of Government.Professor Smith begins by laying out the basic facts of Williams:
In Williams, the defendant Sandy Williams was charged with, among things, sexual assault of victim L.J. After the incident in question, L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An ISP forensic scientist, Brian Hapack, confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. State forensic analyst Karen Abbinanti extracted a DNA profile from the sample and entered it into the ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to the profile produced by Abbinanti from the defendant’s blood sample. The police then conducted a lineup, and L.J. identified the defendant as her assailant. The defendant was charged and in lieu of a jury trial chose to be tried before a state judge, as apparently was permissible in that jurisdiction.
At trial, Lambatos "testified that, based on her own comparison of the two profiles, she 'concluded that [the defendant] cannot be excluded as a possible source of the semen identified in the vaginal swabs' and that the probability of the profile appearing in the general population was '1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.'" When cross-examined, "Lambatos confirmed that she did not conduct or observe the testing on the vaginal swabs and that her testimony relied on the DNA profile produced by Cellmark. She stated that she trusted Cellmark to do reliable work because it was an accredited lab but admitted that she had not seen Cellmark’s calibrations or work in connection with the analysis at issue."
The question before the Supreme Court was thus whether the Cellmark report was "testimonial" under Crawford and admitted to prove the truth of the matter asserted, meaning that the person(s) responsible for preparing the report needed to testify to satisfy the Confrontation Clause.
A plurality of the Court (Justices Alito, Roberts, Kennedy, and Breyer) answered both questions in the negative. These justices first found that the report was not offered to prove the truth of the matter asserted but instead was used under what is now Illinois Rule of Evidence 703 to form the factual predicate for Lambatos' expert opinion:
Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an answer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. That is precisely what occurred in this case, and we should not lightly swee[p] away an accepted rule governing the admission of scientific evidence.
Moreover, the Court found that the report was not testimonial because it was created to catch an unknown criminal rather than to prosecute a known criminal:
[T]he primary purpose of the Cellmark report...was not to accuse [the defendant] or to create evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against [the defendant], who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to incul- pate [the defendant]—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no "prospect of fabrication" and no incentive to produce anything other than a scientifically sound and reliable profile.
At the time of the testing, [the defendant] had not yet been identified as a sus- pect, and there is no suggestion that anyone at Cellmark had a sample of his DNA to swap in by malice or mistake. And given the complexity of the DNA molecule, it is inconceivable that shoddy work could somehow produce a DNA profile that just so happened to have the precise genetic makeup of [the defendant], who just so happened to be picked out of a lineup by the victim. The prospect is beyond fanciful.
Meanwhile, Justice Thomas concurred, finding that the Cellmark report was offered to prove the truth of the matter asserted but was not testimonial because
Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. The report is signed by two "reviewers," but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation.
On the other hand, Justice Kagan (joined by Justices Scalia, Ginsburg, and Sotomayor) dissented, finding that the case before it was indistinguishable from Bullcoming:
Have we not already decided this case? Lambatos’s testimony is functionally identical to the "surrogate testimony" that New Mexico proffered in Bullcoming, which did nothing to cure the problem identified in Melendez-Diaz (which, for its part, straightforwardly applied our decision in Crawford). Like the surrogate witness in Bullcoming, Lambatos could not convey what [the actual analyst] knew or observed about the events..., i.e., the particular test and testing process he employed. Nor could such surrogate testimony expose any lapses or lies on the testing analyst’s part. Like the lawyers in Melendez-Diaz and Bull- coming, Williams’s attorney could not ask questions about that analyst’s profi- ciency, the care he took in performing his work, and his veracity. He could not probe whether the analyst had tested the wrong vial, inverted the labels on the samples, committed some more technical error, or simply made up the results. Indeed, Williams’s lawyer was even more hamstrung than Bullcoming’s. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of Lambatos: She had no knowledge at all of Cellmark’s operations. Indeed, for all the record discloses, she may never have set foot in Cellmark’s laboratory.
Moreover, Justice Kagan scoffed at the plurality’s "not for the truth" rationale, reasoning that the use of the Cellmark report was "bound up with its truth."
Personally, I think that the dissent had the stronger argument, and I will address why in some upcoming posts starting next week.