Williams v. Illinois: The Confrontation Clause Rights in light of modern forensic science

On December 6, 2011, the Unites States Supreme Court heard argument in the case of Williams v. Illinois. The transcripts of the oral argument can is available on the Supreme Court of the United States website.

Some information so you can understand the facts and the subsequent analysis that I offer:

Summary of the Facts: Defendant Williams was arrested on another offense about six months after a sexual assault had been committed. The defendant provided a blood sample. 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. A forensic biologist testified at trial about the results of the DNA test conducted by a non-testifying analyst. The Cellmark DNA test was not admitted at trial. In a bench trial, defendant Williams was convicted of aggravated criminal sexual assault, aggravated kidnapping and aggravated robbery. See People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268 (July 15, 2010). (Source: federalevidence.com)

Very briefly and over simplified, I offer the following explanation of DNA analysis. You are attempting to “match” a known exemplar to an unknown (typically from the scene of the crime). In this case, the known exemplar came directly from the accused, but not in the case of the typical context that they have a suspect developed and a search a warrant is then executed.  The known came instead as a result of his arrest on an unrelated crime that required DNA sampling and the profile placed into a database. Before his arrest, Cellmark analyzed an unknown that was the vaginal swab from an unrelated alleged sexual assault for the purposes of producing the DNA profile (alleles present). Cellmark was contracted with the state to do so in order to try to free up the DNA backlog which is a very common practice nowadays. Cellmark is physically located in Maryland. The folks from Cellmark who did the electrophoresis step on the unknown being the most crucial step that produces the DNA typing and determines what alleles are present in the unknown sample did not actually testify at trial. In fact, no one even familiar with Cellmark and its process was at trial. The only evidence was that it was an accredited laboratory.

Abbinanti was the person at the Illinois State Police who did the analysis of the known. Lambatos was the state’s expert witness who the state claimed did an independent analysis of the original genetic markers (the alleles and the profile) of the DNA from Cellmark that was the unknown comparing it to the sample by Abbinanti which was the known in order to arrive at his own conclusion that it was a “match” between the unknown that was from the assault. The prosecution at trial being unable to admit the Cellmark report through any of its testifying witnesses did not or could not admit that report, but attempted to “link” the results of the report as presented through Lambatos to it by way of the shipping manifest for the item. Therefore, arguing through the circumstantial evidence this link (none of which Justice Kennedy correctly points out has anything to do with the actual accuracy of the test).

This is clearly not a clean record for which to argue confrontation violation.

Here is the best analogy that Attorney Carroll, who argued for Williams, offered that I think makes sense:

Attorney Don Ramsell of Illinois who is a very fine trial attorney in his own right, is on the board of Regents of the National College for DUI Defense, Inc. and has argued before the SCOTUS, said that perhaps the better analogy rather than a photograph would be that of a sketch artist who generated a picture. I tend to agree with Attorney Ramsell that the sketch artist analogy would have been stronger. However, the photograph analogy is still apt.

Here is the way that I see this whole case as aptly summarized and questioned by Justice Kagan in the following passage:

 Some not so brief analysis:

  1. Justice Ginsburg early on seized in on one of my major factual concerns in this case which was that the person who actually analyzed the known DNA did testify live in trial. Justice Ginsburg does correct Justice Breyer to correctly point out the myth that has developed in this case. There were not 10 analysts who contributed to the profile made by Cellmark, but only one. So the prosecution chose not to call this one witness. She did shut down the Illinois advocate when she was trying to characterize Lambatos analysis as independent when in fact it was entirely dependent upon the input provided.
  2. Justice Sotomoyer is not a given for either side. Justice Sotomoyer was the first justice to argue each advocate. In fact, she did not even let the state’s advocate hardly get out a salutaiton before some very difficult questions came to be.
  3. Justice Scalia still appears to think this whole situation has violated confrontation and the underlying data from Cellmark, although not admitted, is utterly testimonial because but for the analyst’s data there would no other information upon which the testifying expert could have used to come to an “independent” conclusion of a “match.” In the event that it is not admitted for the truth of the matter asserted, then it seems that if Scalia was the trial judge, then he would have precluded the Cellmark evidence as irrelevant to the issue at hand unless the except was asked in the form of a hypothetical where he was asked to accept it as true. Further, he would have likely precluded Lambats’s opinion as having improper foundation (unless offered in the context of a classical hypothesis). This was not the case here, there was no hypothetical. Everything was testified to as fact. In fact as he sees it Lambatos was actually a straight conduit for the Cellmark information. He also really hammers home the need to know if the analyst or the laboratory such as the one at Cellmark is competent and diligent. In this case they knew nothing about Cellmark on the record. (Harkening back to his famous quote from M-D: The Constitution provides for confrontation even if they have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa.) This is precisely the type of argument that was featured and developed in The Champion article that Josh Auriemma, Sebastian Watt and I offered that was entitled “In a Post-Bullcoming World: Does Justice Sotomayor’s Concurrence Undermine the Majority Opinion?”
  4. SHOCKINGLY, JUSTICE KENNEDY SEEMED TO AGREE WITH THIS ANALYSIS (point 3). He even seemed to agree that it is violative of hearsay and confrontation to a degree.
  5. Perhaps even Justice Breyer agrees that it is violative of both, but he appeals to the originalist notion that Professor Wigmore notes that there were exceptions similar to this as far back as the 17th century. He keeps his original thoughts in place that expedience (not requiring the Government to produce 10 witnesses) and classical burden shifting (if the defense wants them, then they can subpoena them and a complicated notice and demand type notion that the defense should discover a flaw and only then be able to demand the DA to make presence in trial of the analyst) should trump all concerns. He carries the doom and gloom line that if this were to go forward then the more reliable evidence of DNA will not be presented or even asked to be analyzed from crime scenes and instead the unreliable eyewitness testimony will be the be all and end all. Scalia came to Carroll’s the rescue. Scalia suggested that Wigmore was writing exclusively about hearsay and not confrontation. Carroll picked up on the suggestion and agreed.
  6. Alito seems to still be firmly in the camp of government. He basically parroted the government’s preferred framing of this argument in that for time eternal experts have been relying upon inadmissible hearsay (not offered for the truth of the matter asserted) and even perhaps inadissible testimony to provide the basis of their opinion. He also seems to firmly be entrenched in the sky is falling bunch.
  7. Justice Kagan, and to a degree Alito, seem to think that this whole record is not an issue of federal confrontation but rather of Illinois evidence law where it should have been argued that there was insufficient foundation laid to introduce Lambatos opinion.
  8. Justice Roberts seems to think that cross examination will ferret out the inherent weakness of the testifying expert’s opinion in not having the Cellmark-type of person there. In other words, that the defense would be able to discover and expose the condition precedent to the conclusion of “match” as being perhaps not a valid one in that it requires proof that both the exemplar was from the accused and that the unknown was actually analyzed correctly.
  9. Justice Kennedy at one point compares the evidence in Bullcoming to the evidence here with Cellmark and opines that at least in Bullcoming there was someone there from that particular laboratory wo could answer questions. In Williams, there was no one familiar with any of the particulars of the analysis or analyst that was conducted at Cellmark so therefore under Scalia’s analysis, if he were so inclined to adopt it, this case is a worse violation of Confrontation than Bullcoming. He goes on to further say that under Bullcoming the SCOTUS found that merely being accredited was not enough (Cellmark was accredited in this case). Then the prosecutor tried to say the electropherogram was just machine generated meaningless information until interpreted. Kennedy said that that argument was tried in Bullcoming and M-D and failed both times. This seemed to stymie the prosecutor. Then the prosecutor tried to argue that the evidence submitted to Cellmark and its corresponding results (remember this is the vaginal swab from the crime scene of the suspected and alleged sexual assault) was not for the primary purpose of prosecution which fell flat for somewhat obvious reasons.

Hold your breath, cross your fingers, and say a prayer for the poor citizen accsued.

I wonder if the “missing” witness had not been the one who had conducted the analysis on the unknown, but instead was the person who conducted the analysis on the known instead, would the Court have viewed this case differently? I would think not, but there is no doubt that it helped Williams that the “missing” witness was the person who produced the results on the main piece of tangible evidence (the vaginal swab).

Here is some additional information from the SCOTUSblog:

Williams v. Illinois

Docket No. Op. Below Argument Opinion Vote Author Term
10-8505 Supreme Court of Illinois Dec 6, 2011

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

Plain English Issue: Whether a court violates a criminal defendant’s rights under the Confrontation Clause by allowing an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.

SCOTUSblog Coverage

Briefs and Documents

Merits briefs for the Petitioner

Amicus briefs in Support of the Petitioner

Merits briefs for the Respondent

Amicus briefs in support of the Respondent

Certiorari-stage documents

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