Confrontation Confrontation & Experts& Experts

Paul GiannelliPaul Giannelli

Distinguished University Distinguished University Professor Case Western Professor Case Western

Reserve UniversityReserve University

Williams v. IllinoisWilliams v. Illinois

““What comes out of four Justices’ What comes out of four Justices’ desire to limit desire to limit Melendez–Diaz Melendez–Diaz andand Bullcoming Bullcoming in whatever way in whatever way possible, combined with one possible, combined with one Justice’s one-justice view of those Justice’s one-justice view of those holdings, is—to be frank—who holdings, is—to be frank—who knows what.”knows what.”

Justice Kagan (dissenting)Justice Kagan (dissenting)

Martin v. State, 60 A.3d 1100, 1104 Martin v. State, 60 A.3d 1100, 1104 (Del. 2013) (“The precise holding of (Del. 2013) (“The precise holding of WilliamsWilliams is less than clear (and not is less than clear (and not only to us).”)only to us).”)

State v. Kennedy, 735 S.E.2d 905, 919 State v. Kennedy, 735 S.E.2d 905, 919 (W.Va. 2012) (“[W]e construe (W.Va. 2012) (“[W]e construe WilliamsWilliams with extreme caution and admonish with extreme caution and admonish lower courts to do likewise.”)lower courts to do likewise.”)

IssuesIssues

Federal Rules of EvidenceFederal Rules of Evidence Notice & demand statutesNotice & demand statutes Primary purpose testPrimary purpose test Nonhearsay rationaleNonhearsay rationale Calibration certificatesCalibration certificates No declarant cases (“instrumental” No declarant cases (“instrumental”

declarants)declarants) Autopsy reportsAutopsy reports

Evidence RulesEvidence Rules

CompareCompare U.S. v. Oates, 560 F.2d 45 (2d U.S. v. Oates, 560 F.2d 45 (2d Cir. 1977) (lab report identifying Cir. 1977) (lab report identifying substance as heroin inadmissible under substance as heroin inadmissible under FRE 803(8)). FRE 803(8)).

WithWith U.S. v. Baker, 855 F.2d 1353 (8th U.S. v. Baker, 855 F.2d 1353 (8th Cir. 1988) (“When made on a routine Cir. 1988) (“When made on a routine basis, laboratory analyses of controlled basis, laboratory analyses of controlled substances are admissible as business substances are admissible as business records under [FRE] 803(6).”records under [FRE] 803(6).”

CrawfordCrawford (2004) (2004)

Confrontation Clause: “witness Confrontation Clause: “witness against”against”

Clause covers “testimonial” Clause covers “testimonial” statements statements

Cross-examination required for Cross-examination required for

hearsay statement that are hearsay statement that are “testimonial”“testimonial”

Nonhearsay StatementsNonhearsay Statements

Confrontation Clause “does not bar Confrontation Clause “does not bar the use of testimonial statements for the use of testimonial statements for purposes other than establishing the purposes other than establishing the truth of the matter asserted.”truth of the matter asserted.”

CrawfordCrawford, 541 U.S. at 59–60 n.9 (citing , 541 U.S. at 59–60 n.9 (citing Tennessee v. Street, 471 U.S. 409 Tennessee v. Street, 471 U.S. 409 (1985).) (1985).)

““Primary Purpose” TestPrimary Purpose” Test

DavisDavis & & HammonHammon (2006) (2006)

TestimonialTestimonial: primary purpose of : primary purpose of interrogation is to establish or prove past interrogation is to establish or prove past events potentially relevant to later criminal events potentially relevant to later criminal prosecution.prosecution.

NontestimoniaNontestimonial: primary purpose is to l: primary purpose is to enable police assistance to meet an enable police assistance to meet an ongoing emergency. ongoing emergency.

Melendez-Diaz v. Mass. Melendez-Diaz v. Mass. (2009)(2009)

Laboratory report (cocaine) is Laboratory report (cocaine) is testimonial.testimonial.

““It suffices to say that what we have It suffices to say that what we have referred to as the ‘referred to as the ‘simplest form simplest form [of] [of] notice-and-demand statutes,’ is notice-and-demand statutes,’ is constitutional . . ..” constitutional . . ..”

557 U.S. 327 n.12 (citation omitted).557 U.S. 327 n.12 (citation omitted).

Pretrial waiver of right of confrontationPretrial waiver of right of confrontation

Notice & Demand Notice & Demand StatutesStatutes

Notice & demand “plus”Notice & demand “plus”

Require explanation for requestRequire explanation for request

Switch burden of proof to defenseSwitch burden of proof to defense

Virginia statute: defense can call Virginia statute: defense can call expert in defense case-in-chief expert in defense case-in-chief ((BriscoeBriscoe,130 S.Ct. 1316 (2010)),130 S.Ct. 1316 (2010))..

Notice & Demand (cont.)Notice & Demand (cont.)

Valid waiver: Valid waiver:

Requires adequate discoveryRequires adequate discovery

Melendez-DiazMelendez-Diaz : “The affidavits : “The affidavits submitted by the analysts contained submitted by the analysts contained only the bare-bones statement that only the bare-bones statement that “[t]he substance was found to contain: “[t]he substance was found to contain: Cocaine.” Cocaine.”

Mont. R. Evid. 803(6)Mont. R. Evid. 803(6)

Notification “in sufficient time for the Notification “in sufficient time for the party not offering the report or reports party not offering the report or reports

(1) to obtain the (1) to obtain the depositionsdepositions before trial before trial of the person or persons responsible for of the person or persons responsible for compiling such reports, or compiling such reports, or

(2) to subpoena the attendance of said (2) to subpoena the attendance of said persons at trial.”)persons at trial.”)

Notice & Demand (cont.)Notice & Demand (cont.)

““Nothing in the text of M.R. Evid. 803(6) Nothing in the text of M.R. Evid. 803(6) provides that a defendant's failure to provides that a defendant's failure to challenge the reports prior to trial results challenge the reports prior to trial results in a forfeiture of his right to do so at trial. in a forfeiture of his right to do so at trial. The Rule speaks to the admission of the The Rule speaks to the admission of the reports, not the effect of the admitted reports, not the effect of the admitted evidence.”evidence.” State v. Gai, 288 P.3d 164, 167 (Mont. 2012)State v. Gai, 288 P.3d 164, 167 (Mont. 2012)

Crane v Ky. (S.Ct. 1986) (due process Crane v Ky. (S.Ct. 1986) (due process violation)violation)

Bullcoming v. N.M. Bullcoming v. N.M. (2010)(2010)

Blood-alcohol test reportBlood-alcohol test report

SurrogateSurrogate witness: witness: knows lab procedure knows lab procedure But did not participate in testing But did not participate in testing

Michigan v. Bryant Michigan v. Bryant (2011) (2011)

Primary purpose test for nontestimonial Primary purpose test for nontestimonial statements enlargedstatements enlarged

Extends concept of “ongoing Extends concept of “ongoing emergency”emergency” weapon & missing assailantweapon & missing assailant

Other factors:Other factors: Declarant’s medical conditionDeclarant’s medical condition FormalityFormality

Objective test: police & declarant’s viewObjective test: police & declarant’s view

Williams v. Illinois Williams v. Illinois (2012)(2012)

DNA reportsDNA reports Defendant’s profile (state lab)Defendant’s profile (state lab) Crime scene profile (Cellmark)Crime scene profile (Cellmark) ““Capstone” witness (Lambatos)Capstone” witness (Lambatos) Report not introduced in evidenceReport not introduced in evidence

Typical case involves only one labTypical case involves only one lab

WilliamsWilliams (cont’d) (cont’d)

Two rationales:Two rationales: Primary purpose test Primary purpose test NonhearsayNonhearsay

Plurality decision (4-1-4)Plurality decision (4-1-4) Justice Thomas: Justice Thomas:

Lacked solemnity of an affidavit or Lacked solemnity of an affidavit or depositiondeposition (joins plurality but on different ground) (joins plurality but on different ground)

Rejects nonhearsay rationaleRejects nonhearsay rationale

WilliamsWilliams “primary “primary purpose”purpose”

Cellmark report not prepared for the Cellmark report not prepared for the primary purpose of accusing a “primary purpose of accusing a “targeted targeted individualindividual.”.”

ButBut Melendez–Diaz Melendez–Diaz & & Bullcoming Bullcoming remain remain good law: “[T]he technicians who prepared good law: “[T]he technicians who prepared the reports must have realized that their the reports must have realized that their contents (which reported an elevated contents (which reported an elevated blood-alcohol level and the presence of an blood-alcohol level and the presence of an illegal drug) would be incriminating.” illegal drug) would be incriminating.”

Nonhearsay (FRE 703)Nonhearsay (FRE 703)

““An expert may base an opinion on facts An expert may base an opinion on facts or data in the case that the expert has or data in the case that the expert has been made aware of or personally been made aware of or personally observed.”observed.”

““If experts in the particular field would If experts in the particular field would reasonably rely on those kinds of facts or reasonably rely on those kinds of facts or data in forming an opinion on the subject, data in forming an opinion on the subject, they need not be admissible for the they need not be admissible for the opinion to be admitted.” opinion to be admitted.”

FRE 703 (cont’d)FRE 703 (cont’d)

““But if the facts or data would otherwise But if the facts or data would otherwise be inadmissible, the proponent of the be inadmissible, the proponent of the opinion may disclose them to the jury opinion may disclose them to the jury only if their probative value in helping only if their probative value in helping the jury evaluate the opinion the jury evaluate the opinion substantially outweighs their prejudicial substantially outweighs their prejudicial effect.”effect.”

i.e., exclusion of basis is default positioni.e., exclusion of basis is default position

CriticismCriticism

““But part of a rational evaluation of But part of a rational evaluation of the expert will thus entail an the expert will thus entail an evaluation of her sources—which evaluation of her sources—which will inevitably involve a judgment will inevitably involve a judgment about the likelihood that the sources about the likelihood that the sources themselves are valid and worthy of themselves are valid and worthy of reliance.”reliance.”

Mnookin, 15 J. L. & Pol’y 791, 816 (2007) Mnookin, 15 J. L. & Pol’y 791, 816 (2007)

Bench TrialBench Trial

In bench trial, “we must assume that the trial In bench trial, “we must assume that the trial judge understood that the portion of judge understood that the portion of Lambatos' testimony . . . was not admissible to Lambatos' testimony . . . was not admissible to prove the truth of the matter asserted.” prove the truth of the matter asserted.” (plurality)(plurality)

““We rely on We rely on WilliamsWilliams to reach the conclusion to reach the conclusion that Wert's representations and conclusions that Wert's representations and conclusions were admitted for their truth, particularly in were admitted for their truth, particularly in light of the fact that this case was a jury light of the fact that this case was a jury trial.”) trial.”) Martin v. State, 60 A.3d 1100, 1107 (Del. 2013)Martin v. State, 60 A.3d 1100, 1107 (Del. 2013)

Justice Beyer Justice Beyer (concurrence)(concurrence)

““Lambatos did not have personal Lambatos did not have personal knowledge that the male DNA profile that knowledge that the male DNA profile that Cellmark said was derived from the crime Cellmark said was derived from the crime victim’s vaginal swab sample was in fact victim’s vaginal swab sample was in fact correctly derived from that sample. And no correctly derived from that sample. And no Cellmark expert testified that it was true. Cellmark expert testified that it was true. Rather, she simply relied for her knowledge Rather, she simply relied for her knowledge of the fact upon Cellmark’s report. . . . of the fact upon Cellmark’s report. . . . Williams had no opportunity to cross-Williams had no opportunity to cross-examine the individual or individuals who examine the individual or individuals who produced that report.” produced that report.”

DNA Advisory Board requirements, each DNA Advisory Board requirements, each DNA analyst must undergo proficiency DNA analyst must undergo proficiency testing. How did the Cellmark expert testing. How did the Cellmark expert perform on these proficiency tests? perform on these proficiency tests?

Each laboratory must undergo audits and Each laboratory must undergo audits and

keep a corrective action file. What kind keep a corrective action file. What kind of problems had Cellmark experienced, of problems had Cellmark experienced, as recorded in the corrective action file? as recorded in the corrective action file?

Blood-alcohol CaseBlood-alcohol Case

““In Martin's case, the certifying witness In Martin's case, the certifying witness did testify, but she had no personal did testify, but she had no personal knowledge about the analyst's (Wert's) knowledge about the analyst's (Wert's) actions nor did she observe the actions nor did she observe the particular test. She could only rely on particular test. She could only rely on Wert's representations in the batch Wert's representations in the batch report.”report.”

Martin v. State, 60 A.3d 1100, 1104 (Del. Martin v. State, 60 A.3d 1100, 1104 (Del. 2013).2013).

Plurality opinionPlurality opinion

““And fourth, if the prosecution And fourth, if the prosecution cannot muster any independent cannot muster any independent admissible evidence to prove the admissible evidence to prove the foundational facts that are essential foundational facts that are essential to the relevance of the expert’s to the relevance of the expert’s testimony, then the expert’s testimony, then the expert’s testimony cannot be given any testimony cannot be given any weight by the trier of fact.” weight by the trier of fact.” (plurality)(plurality)

FRE 702FRE 702

““(b) the testimony is based on (b) the testimony is based on sufficient facts or data;sufficient facts or data;

(c) the testimony is the product of (c) the testimony is the product of reliable principles and methods; andreliable principles and methods; and

(d) (d) the expert has reliably applied the the expert has reliably applied the principles and methods to the facts of principles and methods to the facts of the casethe case.”.”

Calibration Certificates Calibration Certificates

““[I]t is not the case, that anyone [I]t is not the case, that anyone whose testimony may be relevant in whose testimony may be relevant in establishing the ... accuracy of the establishing the ... accuracy of the testing device, must appear in testing device, must appear in person as part of the prosecution's person as part of the prosecution's case.” case.”

Melendez–DiazMelendez–Diaz, 129 S. Ct. at 2532, n. 1., 129 S. Ct. at 2532, n. 1.

State v. BensonState v. Benson

““[T]he certificate of calibration in this [T]he certificate of calibration in this case was routinely generated as part case was routinely generated as part of the regular equipment maintenance. of the regular equipment maintenance.

It was not created to establish a It was not created to establish a specific element in the prosecution of specific element in the prosecution of Benson's case.”Benson's case.”

287 P.3d 927, 932 (Kan. 2012) 287 P.3d 927, 932 (Kan. 2012)

U.S. v. Foster U.S. v. Foster

Prosecution “failed to establish that Prosecution “failed to establish that Ranger Smith is an otherwise qualified Ranger Smith is an otherwise qualified witness under Rule 803(6) who can lay a witness under Rule 803(6) who can lay a foundation for the admission of Ex. 1. . . foundation for the admission of Ex. 1. . . . Smith offered no testimony regarding . Smith offered no testimony regarding the creation of the Certificate of the creation of the Certificate of Instrument Accuracy and whether it Instrument Accuracy and whether it was made contemporaneously with was made contemporaneously with testing by a person with knowledge.”testing by a person with knowledge.”

29 F. Supp. 2d 354, 361 (W.D. Va. 2011) 29 F. Supp. 2d 354, 361 (W.D. Va. 2011)

““No declarant” casesNo declarant” cases

U.S. v. Washington, 498 F.3d 225 (4th Cir. U.S. v. Washington, 498 F.3d 225 (4th Cir. 2007)2007)

Argument: expert’s testimony based on Argument: expert’s testimony based on machine-generated reports of raw data and machine-generated reports of raw data and technicians who operated the technicians who operated the chromatograph were not called as chromatograph were not called as witnesseswitnesses

FRE 801(b): declarant is a “person”FRE 801(b): declarant is a “person”

Autopsy ReportsAutopsy Reports

Not “targetted”Not “targetted”

““An autopsy report is prepared in the An autopsy report is prepared in the normal course of operation of the normal course of operation of the medical examiner's office, to determine medical examiner's office, to determine the cause and manner of death, which, the cause and manner of death, which, if determined to be homicide, could if determined to be homicide, could result in charges being brought.” result in charges being brought.”

People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012)People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012)

U.S. v. JamesU.S. v. James

Routine autopsy report not testimonial - Routine autopsy report not testimonial - not prepared primarily to create record not prepared primarily to create record for trialfor trial

ME “is a wholly independent office”ME “is a wholly independent office”

No suggestion anyone suspected that No suggestion anyone suspected that victim had been murdered (by drugs)victim had been murdered (by drugs)

712 F.3d 79, 99 (2d Cir. 2013) 712 F.3d 79, 99 (2d Cir. 2013)

State v. KennedyState v. Kennedy

StatuteStatute specifies use in “in judicial specifies use in “in judicial proceedings.” “As such, under the ‘primary proceedings.” “As such, under the ‘primary purpose’ test, there is no question that the purpose’ test, there is no question that the report is testimonial. Moreover, in this report is testimonial. Moreover, in this particular instance, Kennedy was under particular instance, Kennedy was under suspicion and in fact, in custody, when the suspicion and in fact, in custody, when the autopsy was conducted and therefore the autopsy was conducted and therefore the autopsy report could arguably be said to autopsy report could arguably be said to have been prepared to ‘accuse a have been prepared to ‘accuse a targetedtargeted individual.’” 735 S.E.2d 905, 919 (W.Va. individual.’” 735 S.E.2d 905, 919 (W.Va. 2012)2012)

KennedyKennedy (cont.) (cont.)

Confrontation violation: “to the extent Confrontation violation: “to the extent [testifying expert] merely reiterated [testifying expert] merely reiterated the contents of the autopsy report”the contents of the autopsy report”

But “admission of Dr. Sabet's But “admission of Dr. Sabet's independently formulated opinions as independently formulated opinions as set forth herein above, which Kennedy set forth herein above, which Kennedy had the right to cross-examine, did had the right to cross-examine, did not violate the Confrontation Clause.”not violate the Confrontation Clause.”

People v. DungoPeople v. Dungo

““The usefulness of autopsy reports, The usefulness of autopsy reports, including the one at issue here, is not including the one at issue here, is not limited to criminal investigation and limited to criminal investigation and prosecution; such reports serve many prosecution; such reports serve many other equally important purposes.”other equally important purposes.”

Civil wrongful death casesCivil wrongful death cases Life insurance coverage Life insurance coverage Family wants answersFamily wants answers

286 P.3d 442, 621 (Cal. 2012) 286 P.3d 442, 621 (Cal. 2012)