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Kennedy to the rescue

Back in 2008, the Ohio Supreme Court confronted the question of whether one DNA analyst could testify to the results of testing obtained by another.  The 3rd District had answered "no," holding that the right of confrontation, as interpreted in Crawford v. Washington, required that the defendant have the ability to cross-examine the person who actually peformed the test.  In State v. Crager, the Supreme Court reversed, holding that "results of scientific tests are not testimonial under Crawford."  I'd suggested at the time that the opinion was possibly too broad, and sure enough, a year later, in Melendez-Diaz v. Massachusetts, the US Supreme Court specifically rejected that view, holding inadmissible a certificate of a drug analyst's report without the analyst's accompanying testimony.  By this time, Crager had been appealed, and SCOTUS did what's called a GVR -- grant certiorari, vacate the decision, and remand -- for reconsideration in light of Melendez-Diaz.  The Ohio Supreme Court hemmed and hawed, but finally concluded that it had gotten it wrong in Crager.

On Tuesday, SCOTUS held oral argument in a case which about whether Crager was right all along.

An obvious difference between Crager and Melendez-Diaz is that the latter involved the question of what could be admitted, while the former revolved around who could testify to it.  The defense lawyers in the latter case could hardly cross-examine a piece of paper, but in Crager the defense did at least get to confront a live human being.  The theory that analysts are fungible took a hit last year in Bullcoming v. New Mexico, where the Supreme Court held that one lab technician couldn't testify as to the blood-alcohol results arrived at through testing by a different technician.

But as I indicated when Bullcoming came down, it was a close call.  The policy reasons for requiring confrontation while at the same time permitting hearsay under various exceptions comes down to the same thing:  reliability.  We require confrontation because we believe that it's the best way of testing the reliability of evidence; we permit hearsay under various exceptions because we believe that those types of evidence are sufficiently reliable without confrontation.  People don't lie if they don't have the time to do it; hence, excited utterances are allowed.  Scalia rejected this logic in Crawford, holding that it didn't matter whether the evidence was reliable; the Framers required confrontation (for testimonial statements), at least, so confrontation it had to be.

While it was easy for the Court to understand that a person's three-page statement to the police shouldn't be admitted without the opportunity of cross-examining the person who made it, though -- the decision in Crawford was unanimous -- a backlash developed when the cases began moving into the area of scientific evidence.  There's a policy preference for cross-examination, but there's also a policy preference for the criminal justice not breaking down, and the prospect of the state having to call witnesses, and possibly multiple  witnesses, just to introduce a report showing that some guy had three rocks of crack raised serious concerns.  Four justices dissented in Melendez-Diaz, and by the time Bullcoming was decided, they were in open revolt, suggesting that perhaps it was time to take another look at just what Crawford had wrought.

Williams seemed like a good vehicle for taking that look:  there, the DNA analyst had testified as an expert, rather than, as in Crager, simply testifying that he did the same job as the analyst who actually performed the tests.  This is an important distinction:  under the Federal Rules of Evidence, the bases for the expert's opinion don't have to be admitted in evidence.  (This isn't true in Ohio; our rules limit the basis for the expert's opinion to what he has personally observed or what's been admitted.)  As Breyer pointed out in the oral argument, an expert's opinion is always dependent upon hearsay; if nothing more, just what he was taught in school.  And here, the report itself wasn't admitted into evidence, so, the state argued, the defendant had no real claim that he was entitled to cross-examine its author.

That was a bit much for some of the justices, and the underlying facts helped them.  After a 22-year-old woman had been raped, the state crime lab sent a semen sample to Cellmark, a private lab in Maryland.  Cellmark sent back a DNA profile, and the analyst in Illinois matched it to a profile of Williams, who had been arrested for a different crime.  Ginsburg quickly focused on the fact that, whatever the expert's views, it was the Cellmark profile that had critical significance; the expert had relied entirely on that profile in making the match, yet no one testified as to how Cellmark had done that analysis.

Breyer led the countercharge.  There's been some recent studies showing that questioning by Supreme Court justices during oral argument has increased substantially in recent years, and the argument in Williams highlighted that; at one point, Scalia and Breyer pretty much left the lawyers out of it and debated the issue among themselves.  (That was largely prompted by a "question" by Breyer to the defense lawyer that runs on for a full page and a half of the transcript.)

But Alito and Roberts also scored some points, Roberts especially.  He pointed out that the failure of the state to introduce any evidence of what Cellmark did could be used effectively on cross-examination: 

You would be free in cross-examining to say: Do you know what they did at Cellmark? And she would say: Well, they are a DNA lab; we asked them to do a DNA analysis. But do you know what happened? No, I don't. Well, expert, do you know that they didn't mix them up? No, I don't. All I know is what we sent and what we got back...  And defense counsel can say, why don't they have anybody here from Cellmark, and the jury can say, well, yeah, that's a good point.

And Alito raised the spectre that's been in the back of everybody's minds since Melendez-Diaz came down.  A lot of scientific tests require the participation of numerous people.  If ten people are involved at some point in time in a DNA analysis, does that mean that all ten have to be called?  Breyer suggested that the difficulties in presenting scientific evidence might become so great that the police would come to rely on less reliable evidence,  like eyewitness testimony.

The big surprise, though, was Kennedy.  The state had argued that the Cellmark results weren't being offered for the truth of the matter, but simply as a basis for the expert's opinion.  Kennedy seemed to reject that contention in a softball he lobbed to Williams' lawyer:  "if [the expert] weren't relying on the truth of the assertion from Cellmark, it would be irrelevant for the jury.  Isn't that your point?"  And then another at the close of that lawyer's argument:

You are saying that the State of Illinois case is weaker here than in Melendez, where they had a certificate, and in Bullcoming, where they had somebody from the lab testify as to lab procedures. Here they had neither and yet Illinois somehow says it comes in.

During the government's argument, he honed in on the real problem with their case.  The reason for treating scientific evidence differently from other testimonial statements is the supposedly greater reliability of the former.  In Bullcoming, the analyst testified extensively to the procedures used in the lab, which at least allowed the government to argue that, assuming the analyst who'd actually performed the test followed those procedures, the result would be valid.  Here, there was nothing regarding the reliability of Cellmark, other than the fact that it was accredited.  As Kennedy indicated, that wasn't enough:  "The key actor in the play, the Hamlet in the play, is the person who did the test at Cellmark.  And she or he is not here."

Unless Kennedy was posing, the outcome of Williams is fairly clear.  Souter and Stephens had joined in Melendez-Diaz, but they've been replaced by Sotomayor and Kagan, and it was questionable whether they'd be willing to go as far down the Crawford path as Scalia, Thomas, and Ginsburg.  But Kennedy had actually written the dissent in Bullcoming, and if he jumps ship, it's hard to see how Williams winds up as anything other than another affirmance of Crawford, and further support for its continued vitality.

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