Forensic Expert Cleared for Rape Trial Testimony

     (CN) – A convicted rapist was not barred from confronting his accuser when a forensic expert for the state police testified about DNA evidence tested by an outside lab, the Supreme Court ruled Monday, reaching its decision with several opinions the dissent described as “fractured.”



     “We now conclude that this form of expert testimony does not violate the confrontation clause because that provi­sion has no application to out-of-court statements that are not offered to prove the truth of the matter asserted,” Justice Samuel Alito wrote for the majority. “When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assump­tions on which that opinion rests are not offered for their truth and thus fall outside the scope of the confrontation clause. Applying this rule to the present case, we con­clude that the expert’s testimony did not violate the Sixth Amendment.”
     Sandy Williams was convicted of the February 2000 abduction, robbery and rape of a young woman identified as L.J. in Chicago while she walked home from work.
     Doctors who treated L.J. took a blood sample and vaginal swabs for a sexual-assault kit, which the Chicago police sent to the Illinois State Police (ISP) lab.
     After an ISP forensic scientist confirmed the presence of semen on the vaginal swabs, a sample was sent to Cellmark Diagnostics Laboratory in Germantown, Md., for DNA testing.
     Though Williams was not yet a suspect for the crime, ISP forensic specialist Sandra Lambatos identified him as a match to the DNA profile Cellmark had compiled. The police had a sample from Williams stemming from an unrelated arrest several months after L.J.’s attack.
     L.J. identified Williams as her assailant in a lineup in April 2011.
     L.J. testified when Williams went before the judge in 2006, and the state also called three forensic experts who handled the victim’s samples.
     The trial judge refused to strike testimony Lambatos gave about the tests she performed with the profile generated by Cellmark.
     Williams was convicted and the state appeals courts rejected his claims that Lambatos’ testimony violated the confrontation clause of the Sixth Amendment.
     A five-justice plurality of the Supreme Court affirmed Monday. The entire filing consisting of a lead opinion, two concurrences and one dissent spans 98 pages.
     “Even if the report produced by Cellmark had been admitted into evidence, there would have been no confrontation clause violation,” Justice Samuel Alito wrote, taking the lead with Chief Justice John Roberts, Justice Anthony Kennedy and Justice Stephen Breyer. “The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and con­fessions, that the confrontation clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evi­dence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable. The con­frontation clause does not mandate such an undesirable development. This conclusion will not prejudice any de­fendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.”
     Breyer chided the plurality and the dissent for not addressing how the confrontation clause applies “to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians.”
     Noting that he would prefer to have the court rehear Williams’ case, Breyer said there is some guidance as to the “outer limits of the ‘testimonial statements’ rule set forth in Crawford v. Washington.”
     “In particular, the states could create an exception that presumptively would allow introduction of DNA reports from accredited crime laboratories,” according to the 14-page opinion, which contains another four-page appendix. “The defendant would remain free to call laboratory technicians as witnesses. Were there significant reason to question a laboratory’s technical competence or its neutrality, the presumptive exception would disappear, thereby requiring the prosecu­tion to produce any relevant technical witnesses.”
     Justice Clarence Thomas cast the tie-breaking vote with an opinion con­curring in the judgment.
     Though Thomas felt, like the dissent, that the plurality employed a flawed analysis, he said Cellmark’s statements simply “lacked the requisite ‘for­mality and solemnity’ to be considered ‘”testimonial”‘ for purposes of the confrontation clause.”
     The 25-page dissent expands upon this flawed analysis by explaining how a Cellmark analyst made a critical error when testing blood samples in a different case years earlier. When testing the DNA of a suspect named John Kocak against a sample of blood from a rape victim’s sweatshirt, the Cellmark analyst mislabeled the samples given by the victim and the suspect.
     Before recognizing her error on the stand, the analyst had testified that Kocak’s blood appeared on the victim’s sweatshirt, when the blood actually belonged to the victim herself.
     “Our Constitution contains a mechanism for catching such errors – the Sixth Amendment’s confrontation clause,” Justice Elena Kagan wrote, joined by Justices Antonin Scalia, Ruth Bader Ginsburg and Sonia Sotomayor. “That clause, and the court’s recent cases inter­preting it, require that testimony against a criminal de­fendant be subject to cross-examination. And that command applies with full force to forensic evidence of the kind involved in both the Kocak case and this one.”
     “The Kocak incident illustrates how the clause is designed to work: Once confronted, the analyst discovered and disclosed the error she had made,” Kagan added. “That error would probably not have come to light if the prosecutor had merely admitted the report into evidence or asked a third party to present its findings. Hence the genius of an 18th­century device as applied to 21st-century evidence: Cross­examination of the analyst is especially likely to reveal whether vials have been switched, samples contaminated, tests incompetently run, or results inaccurately recorded.
     “Under our confrontation clause precedents, this is an open-and-shut case. The state of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the state did not give Williams a chance to question the analyst who pro­duced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert wit­ness who had no idea how they were generated. That approach – no less (perhaps more) than the confrontation­-free methods of presenting forensic evidence we have formerly banned – deprived Williams of his Sixth Amend­ment right to ‘confron[t] … the witnesses against him.'”
     The dissenting judges noted that there were “five votes to approve the admission of the Cellmark report, but not a single good explanation.”
     “I would choose another path – to adhere to the simple rule established in our decisions, for the good reasons we have previously given,” Sotomayor wrote. “Because de­fendants like Williams have a constitutional right to con­front the witnesses against them, I respectfully dissent from the Court’s fractured decision.”

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