This week, the Supreme Court considers a case raising questions about the extent that an expert may arrive at an independent conclusion which is based on the forensic report and results of non-testifying analysts under the Confrontation Clause; since experts commonly rely on the data and bases of others, the case has potentially broad ramifications for expert testimony in criminal cases, in Williams v. Illinois (No. 10-8505)
On Tuesday, December 6, 2011, the Supreme Court will hear oral argument in an important Confrontation Clause case involving expert testimony. In Williams v. Illinois (No. 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.[For further discussion on the facts of the case and lower court activity, see Case Background in Supreme Court Watch: Preliminary Questions Raised In the New Williams Confrontation Clause Case Involving Expert Testimony.]
Who Testified and Who Did Not on the DNA Analysis?To place the issue in focus, it helps to understand who testified at the bench trial about the DNA analysis and who did not. Defendant Williams was charged with committing aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery. He was not directly linked to the offense until DNA testing had been completed. Five persons or entities conducted testing that contributed to the DNA analysis and four testified at the bench trial: (1) A Cook County Correctional Center health services employee (Manuel Sanchez) testified that he obtained four drops of blood from defendant Willliams pursuant to a court order when he was in custody on another matter. The blood sample was sent to the Illinois State Police Crime Lab. (2) A state crime lab DNA analyst (Karen Kooi Abbinanti) testified about the procedures she used to extract a male DNA profile from the blood sample and entered it into the state data base. (3) A state police crime lab forensic biologist (Brian Hapack) testified about the tests he performed on the sexual assault kit obtained from the victim. He confirmed the presence of seman which was maintained pending further DNA analysis. (4) Cellmark Diagnostics Laboratory, who did not testify at the bench trial, tested and completed a report concerning blood and vaginal swab samples from the victim which the lab received from the state crime lab. Cellmark testing confirmed the male DNA profile from the victim sample. (5) An Illinois State Police Crime Lab forensic expert (Sandra Lambatos) testified that she compared the testing of the seman to the defendant's DNA profile and concluded there was a match. See Joint Appendix, at 56-58. Her conclusion was based on the Cellmark testing. She did not examine or test the samples obtained from the victim. Joint Appendix, at 59. The Cellmark DNA test report was not admitted at trial. The Cellmark testing did not confirm the match.
Host Of Preliminary Issues
The Williams case presents some important questions concerning the interplay of expert testimony under the Confrontation Clause and the FRE:
- One central, contested issue is whether the expert opinions of the non-testifying forensic expert were "testimonial" under the Confrontation Clause. The parties take contrary positions, as noted below.
- Does it matter under the Confrontation Clause that the forensic report of the non-testifying expert was not introduced at trial in contrast to the reports considered in Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2542 (2009), and Bullcoming v. New Mexico, 564 U.S. _, 131 S.Ct. 2705 (2011)?
- The case may impact application of the expert rules in criminal cases. For example, FRE 703 describes the bases for an expert to rely upon facts or data to reach an opinion or inference. In considering the implications on FRE 703, the Illinois version of rule 703 considered in the case does not include the 2000 amendment “that prohibits otherwise inadmissible facts or data relied on by the expert to be disclosed unless the court determines their probative value outweighs their prejudicial effect.” Petitioner’s Brief, at 28 n.2; see also Petitioner’s Reply Brief, at 10 n.2 (noting under the Illinois rule, “an expert is free to disclose the inadmissible facts she relied upon without the court first conducting a balancing of their probative value and prejudicial effect”).
- Was the DNA report of the non-testifying expert created for the purpose of prosecuting a crime? How closely analogous is the DNA report to the forensic reports considered in Melendez-Diaz, and Bullcoming?
- If experts can rely on conclusions of non-testifying experts, will expert testimony be allowed to make an “end run” around the Confrontation Clause, as the Petitioner asserts, or are there adequate protections to prevent misuse, as the Respondent counters. Petitioner’s Brief, at 31; Amicus Brief of Professor Friedman, at 19; Respondent’s Brief, at 16-17.
- Will the Court provided needed guidance to lower courts on the application of the expert rules under the Confrontation Clause? See, e.g., Reconciling The Confrontation Clause and FRE 703.
- Should it matter that a bench trial was held and not a jury trial since the judge can disregard inadmissible evidence? See Petitioner’s Reply Brief, at 11 (noting rebuttable presumption that the court follows the law in a bench trial; suggesting the court relied on the expert testimony in the case)
- For additional questions raised by the case, see Preliminary Issues Raised In Williams as discussed in Supreme Court Watch: Preliminary Questions Raised In the New Williams Confrontation Clause Case Involving Expert Testimony.
Summary of the Petitioner’s Contentions
While the report of the non-testifying expert was not admitted into evidence, the Petitioner contends that the “protections of the [Confrontation] Clause” were “triggered” since “the substance of a testimonial statement” (confirming the DNA match based on conclusions of the non-testifying expert) was “conveyed to the trier of fact.” Petitioner’s Brief, at 10. According to the Petitioner, the report of the non-testifying expert was created for the purpose of assisting the prosecution. Further, the non-testifying expert’s statements were offered for their truth and the testifying expert lacked personal knowledge of the facts and did not review the testing procedures resulting in the non-testifying expert’s conclusions. See also Petitioner’s Reply Brief, at 8-9 (noting the value in the expert opinion was confirming the DNA match). In fact, “a witness’s in-court testimony conveying the substance of a testimonial forensic report authored by a different witness implicates a defendant’s right to confrontation just as would the formal introduction of the report itself.” Petitioner’s Brief, at 17-18.
The opportunity to cross-examine the testifying expert concerning the non-testifying expert’s report did not satisfy the Confrontation Clause as surrogate testimony is rejected under Bullcoming, 131 S.Ct. at 2710. Petitioner’s Brief, at 11.
The rationale for the rules of evidence involving expert testimony “directly conflicts with the Confrontation Clause since only confrontation, not reliability, satisfies the Clause.” Petitioner’s Brief, at 11. The Confrontation Clause overrides the rules of evidence where testimonial statements are involved. Petitioner’s Brief, at 30. No special exemption should be created for expert testimony under the Confrontation Clause. Petitioner’s Reply Brief, at 22-23.
Recent Supreme Court Confrontation Clause precedent is challenged in this case: “Permitting the prosecution to present the testimonial statements of forensic analysts via expert testimony would allow the prosecution to perform an end run around the Confrontation Clause by depriving the defendant of the opportunity to test the accuracy of the analysts’ testing procedures through cross-examination. Condoning this practice would eviscerate this Court’s decisions in Melendez-Diaz and Bullcoming.” Petitioner’s Brief, at 12; see also id. at 31.
Summary of the Respondent’s Position
The Respondent argues that the Confrontation Clause was not implicated because the testifying expert was subject to cross-examination concerning her independent opinion, “no out-of-court testimonial statements were admitted into evidence, and the testifying forensic analyst “did not serve as a conduit for any hearsay, testimonial or otherwise.” Respondent’s Brief, at 9-10.
As the Respondent contends, “experts may rely on out-of-court information, even “testimonial” information, so long as it is not introduced for its truth at trial. And such a process is consistent with the very nature of expert testimony, whose value lies in the expertise the in-court witness brings to bear on an underlying body of material—material that need not be introduced independently for its own truth.” Respondent’s Brief, at 13. FRE 703 permits an expert opinion to be based on facts or data which are inadmissible as long as they are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Respondent’s Brief, at 14 (citing Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592 (1993) (“Unlike an ordinary witness, … an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”)). There are several protections against the misuse of expert testimony, including cross-examination; “[t]he ability to call defense witnesses, including competing experts; state rules surrounding hearsay, foundation, and limits on the admission of unduly prejudicial evidence; and due process requirements offer additional protection.” Respondent’s Brief, at 16.
Alternatively, any hearsay statements of the non-testifying expert was nontestimonial as it was based on “[a]n informal report comprised of DNA test results and machine-generated data is not produced for the primary purpose of creating an out-of-court substitute for trial testimony, but to facilitate further examination and forensic analysis of the physical evidence.” Respondent’s Brief, at 10. The machine-generated results were not testimonial statements. Respondent’s Brief, at 26. Further, the report of the non-testifying expert was not created for the “primary purpose of creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, 510 U.S. _, 131 S.Ct. 1143, 1155 (2011).
Finally, the Respondent argues, if a Confrontation Clause error resulted, it was harmless beyond a reasonable doubt. Respondent’s Brief, at 11, 32-33.
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