Supreme Court Watch: Preliminary Questions Raised In the New Williams Confrontation Clause Case Involving Expert Testimony

In the next Term, the Supreme Court will consider a Confrontation Clause case presents issues about the extent an expert may arrive at an independent conclusion based on the forensic results of non-testifying analysts; the recent Bullcoming v. New Mexico decision is distinguishable since the report of the non-testifying expert was not introduced at trial, in Williams v. Illinois (10-8505)

Overview

As the Supreme Court Term concluded, the Court issued its latest Confrontation Clause decision in Bullcoming v. New Mexico, 564 U.S. _, _ S.Ct. _ (2011) (No. 09-10876). In the five to four ruling, the Court held that the surrogate testimony of a second forensic analyst, who did not observe or review the original results included in a blood alcohol content lab report which were admitted at trial, was inadmissible under the Confrontation Clause. However, the ruling had a limited reach. As we previously noted, in a concurring opinion, Justice Sotomayor noted four “factual circumstances” which were not presented in Bullcoming. One of the limitations she highlighted involved expert testimony:

[T]his is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert’s opinion based on the facts and data to be admitted).
Bullcoming v. New Mexico, 564 U.S. at _ (Sotomayor, J., concurring in part).

On June 28, 2011, the Supreme Court granted certiorari review in a new case which may address some of the open issues following the decision in Bullcoming. In Williams v. Illinois (10-8505), the question presented is:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

According to the Illinois Supreme Court decision under review, the state court applies a standard comparable to the federal rules for expert testimony under FRE 703 (Bases of Opinion Testimony by Experts) and FRE 705 (Disclosure of Facts or Data Underlying Expert Opinion). See People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268, 274 (July 15, 2010) (No. 107550).

The forensic expert did not analyze the samples used to generate the DNA profiles for the match. The Williams case is distinguishable from Bullcoming, at least in part, since the underlying forensic report was not introduced at trial. Additionally, the test samples were also not introduced at trial.

Preliminary Issues Raised In Williams

Initially, the Williams case presents a host of potential issues under the Confrontation Clause:

  • To what extent may an expert witness testify about the results obtained by non-testifying analysts?
  • Must the expert witness have personal knowledge about the procedures used by the non-testifying analysts?
  • Were the results obtained by the non-testifying analysts “testimonial” under the Confrontation Clause or were they offered as non-hearsay to explain the basis of the expert’s independent conclusions?
  • Under expert rules, including FRE 703 and FRE 705, to what extent may an expert rely upon statements of other non-testifying experts in arriving at the testifying expert’s independent opinions? Will these expert rules be limited to civil cases based on the application of the Confrontation Clause in criminal cases?
  • Were the requirements of the Confrontation Clause fulfilled by the opportunity for the defendant to cross-examine the expert about her opinion and the bases in support of that opinion?
  • If there was error in the case, was it harmless beyond a reasonable doubt?

The courts have continued to wrestle with the application of the Confrontation Clause and expert testimony. See, e.g., Reconciling The Confrontation Clause and FRE 703.

Case Facts

Defendant Williams was charged with committing aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery. At a bench trial, L.J., a 22-year old female victim, testified that she was sexually assaulted one evening on her way home after working and shopping. The assailant forced her to sit in the backseat of a station wagon during the attack. After she was pushed out of the car, and made it home, she told her mother what transpired. Her mother reported the incident to the police. The victim was taken to an emergency room, where a vaginal exam was conducted. Samples were sent to the state crime lab for further testing. The presence of semen was detected. Samples were provided to Cellmark Diagnostic Laboratory, which “derived a DNA profile for the person whose semen was recovered from L.J.” Williams, 939 N.E.2d at 271.

Nearly six months after the attack, defendant Williams was arrested on another offense. A blood sample was obtained. A forensic scientist entered a deoxyribonucleic acid (DNA) profile into the state crime lab database. A match between the Cellmark DNA profile was made with the defendant’s DNA profile. Fourteen months after the incident, the victim identified the defendant in a lineup. He was arrested.

At a bench trial, forensic biologist Lambatos testified that the Cellmark DNA profile matched the defendant’s DNA profile. As the Illinois Supreme Court opinion summarized:

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.… She stated that, because Cellmark was an accredited laboratory, it was required to meet “certain guidelines to perform DNA analysis for the Illinois State Police and so all those calibrations and internal proficiencies and controls [of the equipment used] would have had to have been in place for them to perform the DNA analysis.” Cellmark’s testing and analysis methods were generally accepted in the scientific community according to Lambatos. Lambatos, however, admitted that Cellmark had different procedures and standards for results than the ISP Crime Lab. Nevertheless, Lambatos testified that she personally developed proficiency tests for Cellmark technicians to perform. She further testified that she routinely relied on results from Cellmark and she did not observe any chain of custody or contamination problems.
Williams, 939 N.E.2d at 271-72.

When the expert was asked to provide her opinion concerning the DNA match, the defense objected that the expert could not rely on the testing of another lab. The objection was overruled. The expert “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.” Williams, 939 N.E.2d at 272. The match was initially generated by a computer. The expert made further comparisons to arrive at her opinion.

On cross-examination, she clarified 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 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.
Williams, 939 N.E.2d at 272.

A defense motion to strike the expert testimony was denied. The trial court noted:

I don’t think this is a Crawford [v. Washington] 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.
Williams, 939 N.E.2d at 272. No defense evidence was presented at trial. The defendant was convicted on two counts of aggravated criminal sexual assault, one count of aggravated kidnapping and one count of aggravated robbery. The trial court denied the defendant’s motion for a new trial. The defendant was sentenced to serve two concurrent terms of natural life imprisonment on the aggravated criminal sexual assault counts, a concurrent term of 15 years’ imprisonment on the aggravated robbery count, and a consecutive 60 year term on the aggravated kidnapping count.

State Appellate Proceedings

The Illinois Appellate Court affirmed the convictions but reversed the consecutive sentence. On the Confrontation Clause issue, the appellate court held that ‘‘Cellmark’s report was not offered for the truth of the matter asserted; rather, it was offered to provide a basis for Lambatos’ opinion.’’ Williams, 385 Ill.App.3d 359, 369, 324 Ill.Dec. 246, 895 N.E.2d 961.

The Illinois Supreme Court affirmed the convictions and reinstated the trial court’s consecutive sentence. On the Confrontation Clause issue, the state supreme court noted:

Lambatos’ testimony about Cellmark’s report was not admitted for the truth of the matter asserted. The State introduced this testimony, rather, to show the underlying facts and data Lambatos used before rendering an expert opinion in this case. [People v.] Lovejoy, 235 Ill.2d [97,] 144, 335 Ill.Dec. 818, 919 N.E.2d 843 [(2009)]. The evidence against the defendant was Lambatos’ opinion, not Cellmark’s report, and the testimony was introduced live on the witness stand. Indeed, the report was not admitted into evidence at all. Rather, Lambatos testified to her conclusion based upon her own subjective judgment about the comparison of the Cellmark report with the existing ISP profile.
Williams, 939 N.E.2d at 279. The state supreme court also distinguished Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2542 (2009):

We find that Melendez-Diaz does not change our determination. In Melendez-Diaz, the disputed evidence was a “bare-bones statement” that the substance was cocaine, and the defendant “did not know what tests the analysts performed, whether those tests were routine, and whether interpreting their results required the exercise of judgment or the use of skills that the analysts may not have possessed.” Melendez-Diaz, 557 U.S. at _, 174 L. Ed. 2d at 327, 129 S. Ct. at 2537. Here, 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.

In sum, the State did not offer Lambatos’ testimony regarding the Cellmark report for the truth of the matter asserted and this testimony did not constitute “hearsay.” Thus, the trial court and appellate court properly concluded that Crawford considerations did not apply here. Lambatos disclosed the underlying facts from Cellmark’s report for the limited purpose of explaining the basis for her opinion on the critical issue concerning whether there was a DNA match between the defendant’s blood sample and the semen sample recovered from L.J. By allowing the expert to reveal the information for this purpose alone, it undoubtedly aided the judge, sitting as the factfinder, in assessing the value of Lambatos’ opinion. Lovejoy, 235 Ill. 2d at 143, quoting Pasch, 152 Ill. 2d at 176; see also Johnson, 394 Ill. App. 3d at 1034 (“The Cellmark report was not offered to prove the truth of its contents”). Finally, the record demonstrates that the gaps in the chain of custody went to the “ ‘weight of the evidence rather than its admissibility’ ” (Melendez-Diaz, 557 U.S. at ___ n.1, 174 L. Ed. 2d at 322 n.1, 129 S. Ct. at 2532 n.1, quoting United States v. Lott, 854 F.2d 244, 250 (7th Cir. 1988)), and our review of the record shows that Lambatos’ conclusion was tested “in the crucible of cross-examination.” Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370; see also Delaware v. Fensterer, 474 U.S. 15, 20, 88 L. Ed. 2d 15, 19, 106 S. Ct. 292, 294 (1985) (the sixth amendment “guarantees an opportunity for effective cross-examination, not crossexamination that is effective in whatever way, and to whatever extent, the defense might wish”(emphasis in original)).
Williams, 939 N.E.2d at 281-82.

Justice Freeman specially concurred, and would not have reached the Confrontation Clause issue based on evidentiary error which he found was harmless based on the victim’s testimony. Justice Burke concurred in part and dissented in part on the sentencing issue.

Since certiorari review has been granted, after briefing on the merits, argument before the U.S. Supreme Court will be set in the next Term.

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For the briefs, state court opinion under review, and docket sheet in the Williams case, see:

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While the argument and decision remain pending, for the briefs on the merits, amicus curiae briefs, the initial briefs, state court decision, and Supreme Court docket sheet in the Williams case, see the Key Briefs and Other Materials on the Williams v. Illinios Resource Page.

For more information on the Bullcoming case, visit the Bullcoming v. New Mexico Resource Page, which provides background and key links to the briefs, oral argument and other materials on the latest Confrontation Clause case from the Supreme Court.

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