Supreme Court argument focuses on whether testimonial statements were relayed through expert testimony; doubt is cast on whether the expert could testify about her conclusions based on the out of court DNA testing results from a sample obtained from the victim under the Confrontation Clause, in Williams v. Illinois (No. 10-8505)
On Tuesday, December 6, 2011, the Supreme Court heard oral argument on an important case involving expert testimony under the Confrontation Clause. See Williams v. Illinois Argument Transcript (listen to the oral argument below). The case has the potential to impact expert testimony in criminal cases beyond expert forensic testimony. At its core, the case calls into question how much an expert may rely on statements and facts of others who do not testify at trial. Under FRE 703, and related state rules, generally an expert may rely upon "facts or data" in which an expert "in the particular field would reasonably rely," and the facts and data "need not be admissible for the opinion to be admitted." The question in the case is whether the Confrontation Clause allows this practice and to what extent.
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 more background on the case, see the prior posts, including a summary of "Who Testified and Who Did Not on the DNA Analysis?, and a summary of the facts and lower court decision.]
A summary of some of the areas of focus during the oral argument follows:
Did The Expert Testimony Include Testimonial Statements?
The initial core issue is whether the expert testimony conveyed the substance of a testimonial statement of a non-testifying witness from Cellmark? In affirming the conviction, the Supreme Court of Illinois concluded the expert's reliance on the Cellmark testing was for the nontestimial and "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 [victim] L.J.” People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268, 282 (July 15, 2010).
Petitioner's counsel, Brian W. Carroll, Office of State Appellate Defender, framed the issue: "Because no one from Cellmark appeared at Mr. Williams' trial, [forensic expert] Lambatos' testimony conveying the testimonial statements from Cellmark violated Mr. Williams' rights under the Confrontation Clause." Williams Transcript, at 3:14-17. Respondent's counsel, Anita Alvarez, of the State's Attorney Office for Cook County, Ilinois, argued that the expert opinion relying on the Cellmark results was nontestimonial. The statements were not used to prove the truth of the matter asserted and were offered merely to explain how she arrived at her own independent conclusion that there was a DNA match based on the separate samples obtained from the defendant and victim. Additionally, the results from the electrophoretogram were machine-generated which the expert merely analyzed. Finally, the expert was extensively cross-examined about here conclusion. Id., at 32:1-15, 34:8-14, 38-39.
Several Justices expressed doubt that the limited purpose to consider the Cellmark testing rendered it nontestimonial. For example, Justice Antonin Scalia noted that if the results were not offered for their truth, they would be irrelevant. Willliams Transcript, at 7:21-23, 38:1-3. Justices Anthony M. Kennedy Kennedy and Ruth Bader Ginsburg also noted that the manner in which the results were conveyed were testimonial. Id. at 22:8-10 ("And if she weren't relying on the truth of the assertion from Cellmark, it would be irrelevant for the" factfinder.) (Kennedy, J.); Id. at 35:9-12 (same) (Kennedy, J.); id. at 34 ("[H]ow does it become non-testimonial when it's relayed by the recipient of the report?"). Justice Antonin Scalia clarified in questioning that the expert testimony about the lab results was the only evidence confirming the match. Id., at 5:11-14; see also id. at 18:15-17 ("If the statements weren't true, then [expert] Lambatos' testimony would not link Williams' DNA to the crime.") (Petitioner's counsel). Justice Kennedy summarized that "the chain of custody are just supporting actors. The key actor in the play, the Hamlet in the play, is the person who did the test at Cellmark." Id., at 30-31.
Hearing the questions of some of the Justices, Deputy Solicitor General Michael R. Dreeben, as amicus curiae for the United States, noted that under Illinois state law, the expert's testimony cold not be used to prove the truth of what Cellmark did. Willliams Transcript, at 42:1-10. However, the expert testimony provided a "circumstantial way in which the fact finder can infer that Cellmark tested the DNA in the semen that was sent to it," but no testimonial statement was offered implicating the Confrontation Clause. Id., at 44:2-8. Mr. Dreeban added, "The Confrontation Clause ... does not obligate the State to present a strong case. It does not prevent the State from presenting a relatively weaker case, so long as it does not rely on testimonial statements to prove the truth of the matter asserted." Id., at 46:17-22. The Court has consistently held that factfinders follow limiting instructions. In this case, the factfinder was a trial judge and the Illinois Supreme Court concluded he did not consider the expert testimony for the truth of the matter asserted. Id., at 46-47, 48-49. He clarified that during cross-examination, the expert was asked about the steps taken by Cellmark and that the petitioner was not claiming this line of questioning violated the Confrontation Clause. Id., at 43:1-5.
Justice Samuel A. Alito, Jr. pondered whether the lab results were nontestimonial to explain the expert conclusion: "Hasn't it long been accepted that experts may testify to the facts that form the basis for their opinions on the ground that when the experts go over those facts they are ... not being introduced to prove the truth of the matter asserted, the truth of those underlying fact; only that those are the facts that the expert has relied on in reaching an opinion?" Williams Transcript, at 6:9-16. Justice Scalia distinguished between a hypothetical question to an expert and the expert's reliance on a testimonial statement. Id., at 7-8, 37-38; see also id. at 27:15-19 ("[A]n expert can always testify about the material that they relied on, whether that material is ever admitted into evidence and sometimes that material could never be admitted into evidence.") (Respondent's counsel).
Justice Elena Kagan asked where in the record supported the conclusion that the tiral judge, as finder of fact, did not consider the expert testimony for the truth of the matter asserted. Williams Transcript, at 34:15-19. The response was that the Illinois Supreme Court had reached this conclusion in its decision:
In sum, the State did not offer [expert] 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 [v. Washington, 541 U.S. 36 (2004)] 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.
Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d at 282; see also Joint Appendix, at 172. Justice Sonia Sotomayor suggested some deference may be due the state court conclusion, however, Justice Scalia questioned how much deference should be given in light of the record. Williams Transcript, at 50-51.
Impact on the Role of Expert Testimony
Justice Alito noted that the some crime labs involve 12 technicians in DNA analysis. Williams Transcript, at 13:12-16 (referring to Amicus Curiae Brief of the New York County District Attorney's Office and the New York County Office of the Chief Medical Examiner in Support of Respondent, 7-8 ("As noted above, each case involves the separate testing of a minimum of two different samples (a crime scene sample and a suspect exemplar), and each process requires the participation of at least six different technicians. That means that each case will involve at least 12 technicians. Only at the end of these processes does an analyst, who routinely will testify in court about the case, compare the two electropherograms and prepare a report setting forth her conclusions.")). Justice Alito noted that it "is impossible for us to bring all 12 of those technicians into court to testify in every case in which there is DNA evidence; and if we have to do that we will just not be able to use DNA evidence in court; we will have to rely on less reliable evidence." Id., at 13:19-24. Justice Scalia responded that the prosecutor can decide how many of these witnesses to call but testimonial statements could not be admitted. Id., at 14:12-16. Petitioner's counsel stated that not every step in the DNA process involved testimonial statements and consequently some witnesses would not have to be called. Id., at 15:3-15.
Repondent's counsel conteded that the expert testimony "satisfies the Confrontation Clause because she is the witness against the accused in this case, and the fact that she testified that she relies on material that was generated by Cellmark does not make Cellmark the witness against the accused." Williams Transcript, at 29:7-11. However, Justice Scalia countered that, in his view, the expert went further: "But she said more than that. She said I relied on material provided by Cellmark which is, and then she described what that material was. And she had no personal knowledge of that." Id., at 29:13-16.
No Notice and Demand Process Available
Justice Ginsburg asked if the State of Illinois had a notice and demand process, in which the government could provide notice that it was not intending to call certain experts and the defendant could demand their presence at trial. Respondent's counsel clarified that the state did not have this process. Williams Transcript, at 40:6-10. The Supreme Court acknowledged a notice and demand process could comport with the Confrontation Clause. See Melendez-Diaz v. Massachusetts, 557 U.S. _, 129 S. Ct. 2527 (2009) ("The defendant always has the bur-den of raising his Confrontation Clause objection; notice-and-demand statutes simply govern the time within which he must do so. States are free to adopt procedural rules governing objections.") (emphasis in original).
Should An Expert Exception Be Recognized?
In addressing the practical consequences on forensic expert testimony, Justice Stephen G. Breyer noted that requiring multiple forensic technicians to testify would result in "a sea change in normal criminal law practices." Williams Transcript, at 8-12. He suggested that an exception to testimonial statements be considered for expert testimony. Id., at 8-12. Petitioner's counsel responded that the decisions in Crawford v. Washington, 541 U.S. 36 (2004) and Melendez-Diaz [v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009)] closed the door to an exception. Id. at 12:5-8. Justice Scalia hadded that "Justice Breyer dissented from those opinions." Id., at 12:9-10.
Squaring the Case with Prior Confrontation Clause Precedent
Justice Anthony M. Kennedy questioned whether the Williams was weaker than recent cases: "You are saying that the State of Illinois case is weaker here than in Melendez-Diaz [v. Massachusetts], where they had a certificate, and in Bullcoming [v. New Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011)], where they had somebody from the lab testify as to lab procedures.". Williams Transcript, at 23:12-17; see also id. at 31:11-16, 21-23; 32:16-24.
Strength of the Case Without the Expert Testimony
Justice Kagan asked about the strength of the case without the challenged expert testimony. Williams Transcript, at 35-36. The Repondent's counsel noted in addition to the testing evidence the victim had identified the defendant. This questioning was significant since the espondent argues, if a Confrontation Clause error resulted, it was harmless beyond a reasonable doubt. Respondent’s Brief, at 11, 32-33.
New Confrontation Clause Directions?
Will the case signal a new direction on Confrontation Clause case law or confirm a trend that when the government presents testimonial statements, from experts or others, the person making the statement must be subject to cross-examination? Will an accommodation be made for expert testimony?
How will the newer Justices line up in the majority and minority of any ruling? Some of the recent Confrontation Clause decisions have been by five to four margins. The make-up of the Court on recent Confrontation Clause decisions follows:
Bullcoming v. Mew Mexico, 564 U.S. __, 131 S.Ct. 2705 (2011) (5 to 4 opinion authored by Justice Ruth Bader Ginsburg, holding that under the Confrontation Clause, the surrogate testimony of a second forensic analyst, who did not observe or review the original blood alcohol content results, was inadmissible; the defendant has the right "to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist
- Majority: Ginsburg (authored opinion except Part IV and n.6), joined by Scalia, Sotomayor, Kagan, Thomas, JJ.
- Concurrence: Sotomayor, J.
- Dissent: Kennedy (author), joined by Roberts, CJ, Breyer and Alito, JJ.
Michigan v. Bryant, 562 U.S. _, 131 S.Ct. 1143 (2011) (6 to 2 opinion authored by Justice Sonia Sotomayor, holding: "[T]hat the circumstances of the interaction between [the victim] ... and the police objectively indicate that the 'primary purpose of the interrogation' was 'to enable police assistance to meet an ongoing emergency.' Therefore, [the victim's] ... identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant’s trial did not violate the Confrontation Clause.")
- Majority: Sotomayor (author), joined by Roberts, CJ, Kennedy, Breyer, and Alito, JJ.
- Concurrence: Thomas, J.
- Dissent: Scalia and Ginsburg, JJ.
- Note: Kagan, J. took no part in the consideration of the case
Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527, 2542 (2009) (5 to 4 opinion authored by Justice Antonin Scalia, holding that certificates of forensic analysis are "testimonial" and "the Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits")
- Majority: Scalia (author), Stevens, Souter, Thomas, and Ginsburg, JJ.,
- Concurrence: Thomas, J.
- Dissent: Kennedy (author), joined by Roberts, CJ, Breyer and Alito
Davis v. Washington, 547 U.S. 813, 823, 830 (2006) (8 to 1 opinion authored by Justice Antonin Scalia, holding that the victim's response to 911 operator's interrogation was not "testimonial" and not subject to Confrontation Clause because the statement was made under circumstances that objectively indicated an ongoing emergency and the primary purpose of the interrogation was to enable police to assist in meeting that emergency; victim's written statements in affidavit given to police officer were testimonial and excludable under the Confrontation Clause because no emergency existed at the time of the statement and the primary purpose of the interrogation was to investigate a past crime)
- Majority: Scalia (author), Roberts, CJ, and Stevens, Kennedy, Souter, Ginsburg, Breyer, and Alito, JJ.,
- Concurring and Dissenting In Part: Thomas, J.
Crawford v. Washington, 541 U.S. 36 (2004) (7 to 2 opinion authored by Justice Scalia; landmark Confrontation Clause case holding that "testimonial" statements of an unavailable witness violated the Confrontation Clause absent a prior opportunity for cross-examination)
- Majority: Scalia (author), Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ.,
- Concurrence: Rehnquist, CJ, joined by O’Connor, J. (dissenting from overruling Ohio v. Roberts, 448 U.S. 56 (1980))
A decision is expected before the end of the Term, most likely by July 2012. In the meantime, for copies of the briefs and a summary of the case, see the Williams v. Illinois Resource Page (Introduction and Overview) and (Key Briefs and Materials). See also prior blog posts on the case.
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