US Supreme Court, The Right to Confront & What the Heck?!?

Okay, I'm researching double jeopardy rules and I trip across Williams v. Illinois.  I don't know how I missed this when it came out, but here's my summary:

Williams v. Illinois, JUN12, USSC No. 10-8505: (1) FOUR JUSTICES ONLY: At least in bench trials, inadmissible out of court statements (DNA analysis) which an expert talks about in explaining the basis for his opinion are not offered for their truth and therefore are not subject to the confrontation clause. NOTE: This relies strongly on Federal Rule 703 which does not track with Virginia Rule 2:703(b). (2) FOUR JUSTICES ONLY: Statements which fall under the confrontation clause have two characteristics. (a) They involve out of court statements having a primary purpose of accusing a defendant of a crime. (b) They involve formalized statements such as affidavits, prior testimony, or confessions. (3)(a) A DNA report from before the offender is identified is non-testimonial because its primary purpose was not to obtain evidence for the trial of the offender, but to catch an offender. (b) DNA evidence is not inherently inculpatory; it exculpates everyone but the offender. (c) Requiring the technicians who worked on preparing a profile to testify is economically expensive and would discourage the use of DNA in favor of less reliable evidence. (d) The defendant is not prejudiced because he can subpoena the technicians who prepared the profile. (4) JUSTICE THOMAS ONLY, rejecting both above but concurring: (a) A rule of evidence does not trump the right to confront, especially one that was created contrary to the common law rule it replaced. (b) The confrontation clause regulates only those statements with indicia of solemnity so that they are formalized testimonial materials, including depositions, affidavits, prior testimony, or statements from formalized dialogue such as custodial interrogation.

Okay.  Now, in case any of you missed it, there are five votes against the two rationales that were announced for upholding the denial of the applicability of the right to confront by four of the five justices who upheld the trial and appellate courts. And then there's an opinion by one guy who doesn't agree with anybody, but determines the outcome of the case. Sometimes I wonder whether those folks in the big stone building in D.C. realize that the rest of us have to try to actually figure out how to apply the obtuse obfuscations they send down from the mount.


In Williams, there was an unidentified rapist.  A DNA sample taken from the victim was sent to a out of state lab.  When the result came back it was compared to DNA samples that the state had previously taken from convicts and analyzed at the state lab.  There was a match.  Illinois provided both the person who performed the test on the sample taken from Williams after the prior conviction and the person who compared the results, determining that they matched.  However, it did not call anyone from the out of state lab to testify about that sample.  Williams cried foul, claiming a violation of his right to confront the person who did the analysis in the out of state lab.


There's a very strong argument that Williams should be entitled to examine the analyst from the out of state lab under current constitutional jurisprudence.  The DNA analysis from the out of state lab is vital to the case and Williams would not have even been a suspect without it.  However, the above opinion holds otherwise.  Look, I'm a prosecutor and predisposed to the introduction of these forms, but those rationales are poor.  Mayhap, Oh Great Supreme Court Justices above us all, you might try a justification such as this:  (1) The analysis of the DNA is done by a machine.  (2) A machine cannot be examined or cross examined.  (3) The work done by a machine is not testimonial.  (4)  The technicians that put the item into the machine, take the item back from the machine, and get a copy of the result from the machine are merely extensions of the machine's workings. (5) The comparison of the two results from machines by a human being is testimonial and that person must testify.    


Yes, there are issues with (4), but there has to be a point where you draw a line.  There's always one more person down stream whom the prosecutor has not brought to court. If the prosecutor provides the analyst and the technician then the defendant can complain that the person who maintains the machine has not been called.  If the prosecution provides the analyst, technician, and maintenance man, then the defendant can complain that the person who designed the machine has not been called. et cetera. et cetera. et cetera.  A line has to be drawn somewhere and the technician / analyst line seems to be a logical place.  This, of course, does not address chain of custody issues - only the right to confront.


Instead we get the "because it passes Federal Rule of Evidence 703 it is constitutional, especially in front of a judge" argument.  That argument is pretty threadbare and Justice Thomas deals with it without breaking a sweat.  Virginia Practitioner's Note: Be advised that our Rule of Evidence 703(b) does not track with the federal rule; we stuck with the common law:

(b) Criminal cases. In criminal cases, the opinion of an expert is generally admissible if it is based upon facts personally known or observed by the expert, or based upon facts in evidence.

Therefore, in Virginia the expert cannot rely on inadmissible evidence and therefore could not talk about it in his explanation of the basis of his opinion.  Therefore, this should never be an available argument in Virginia.


As for the primary purpose test, (3)(a) above does make an arguable point as to the primary purpose of the of the analysis.  However, it's a microscopically thin hair they're splitting there.  Yes, the primary purpose was to catch the rapist, but the primary purpose of catching him is to prosecute him (this does not appear to be a serial rapist case with a desperate need to find the offender before he strikes again).  Catching the offender and prosecuting him are events of a continuing purpose and intimately intertwined.  It makes no sense to separate the two.


The rest of the Four's argument is specious.  Despite what (3)(b) states, if something exculpates everyone else it is clearly inculpatory evidence against anyone it does not exculpate.  The fact that a requirement will lead to increased cost, per (3)(c), does not mean that the constitutional requirement can be bypassed.  I'm fairly certain that if we took thieves out the back door of the courthouse and executed them the moment they were convicted it would be much cheaper than allowing them appeals and maintaining prisons to house them; nevertheless, we obey the constitutional mandates.  Arguing that the defendant's right to confront is okay as long as he could subpoena a person to court, as in (3)(d), would relieve the prosecution of any duty to provide anyone; after all, if the defense did not want the prosecution to be able to rely on the police report as proof of an illegal act, it could have subpoenaed the officer.


As for Justice Thomas' rationale for upholding the introduction of the DNA test results, I must admit that it has a superficial attraction.  At first it appears to be a more bright line rule.  However, after examining it a little more closely, I think there would be some problems.  The obvious one is the one Justice Kagan raises in her dissent: if statements can get in just because they are not formalized then law enforcement agencies, legislatures, and prosecutors are going to go out of their way to stop getting things formalized.  Whether a certificate of analysis from the state lab has an attestation on it is a formality only; presumptively, the lab will do the same work either way and it will carry much the same weight with the finder of facts.  Does anyone truly believe the jury goes back to deliberate and spends time examining the notarized seal on the report?


I'm also concerned as to what "statements from formalized dialogue" means exactly.  As "custodial interrogation" is pointed out, we know it is covered, but what about a 9-1-1 call?  Or even an interview of a witness?  Are they formalized because they are noted and reported?  Or are they lacking formality because they are not done in a custodial environment or in a particular fashion set forth by an agency policy?  That's a nest of vipers I don't particularly want to get thrown into.  In the end, Justice Thomas' solution seems too readily circumscribed and thus unworkable.


Here's the rule as I see it for those of us practicing in Virginia, applying the rule of the Four and the rule of Thomas and considering Virginia's Rule 703(b):

Rule of the case:  A non-formalized statement which has as its primary purpose the catching of an offender who has not been specifically identified when the testing is done can be admitted at trial.

If the statement makes it through all those hoops it has the support of five justices.  Mind you, this is tenuous as all get out.  A portion of the rule I just laid out is opposed by five justices.  The other portion seems to be opposed by eight.  Nevertheless, if you tack windward you have the number of votes needed to support the rule.


And, good luck explaining all this to your trial judge during a two minute bench conference in the middle of your next jury trial.  You can do it.  I have faith in you.