The case is Williams v. Illinois, cert granted at the end of June, argument before the berobed ones in DC on Tuesday.
It's another in the line of cases that began with Crawford v. Washington which said that the Confrontation Clause of the Sixth Amendment prohibits the prosecution from presenting "testimonial hearsay." In Melendez-Diaz v. Massachusetts, the Court made clear that reports of crime lab technicians are testimonial hearsay and that the prosecutor can't bring in those reports without also presenting testimony by the lab tech. The formal question in Williams is whether DNA test results are like crime lab reports. Must the lab folks who did the actual tests come and testify or can some flunky just say,
Hey, here's the report. No, I didn't have anything to do with it - never even heard of DNA until just now, you know, I'm a janitor at the pizza place next door to the lab. But they did it perfectly just like always and there's less than a 1 in 673 bazillion chance your guy isn't the killer. Trust me. It's DNA so there can't be anything wrong with how the samples were handled, how the test was done, or how the data were analyzed. No, don't bother with cross-examination. Thanks, I can find my own way out. Say, you guys like pepperoni or anchovies?
That's the technical question. The real question is whether Melendez-Diaz should be overruled either specifically or in effect. Justice Scalia, the architect of this line of cases, has been losing his majority, so it's a tough question. I mean, really, why should we bother with requiring the DNA testers to come to court when the pizza guy's available?
The essence of Williams's argument is going to be that the Constitution says confrontation* which means Illinois has to bring in the person who actually did the testing and analysis so that she can be cross examined. There's no DNA exception to that, no lab tech exception, no don't-be-silly-there's-no-need-we're-all-scientists-here exception. Besides, Williams will argue, it matters. Labs fuck this shit up all the time. And the analysis is never as clear and simple as they say. Cross-examination isn't just a constitutional guarantee, it's a necessary component of getting an accurate verdict.
Again, the state's argument is Constitution Shmonstitution. Really, the report speaks for itself. There's just no point to confrontation. And it's so much trouble. They haven't sold that to a majority of the Court in this post-Crawford world, but they may manage it this time.
Which is really too bad because Williams is right. He's not just right as a matter of constitutional law. He's right as a matter of getting it right. It does matter. It matters with DNA analysis and with ballistics and with gas chromatography and breathalyzers. It makes a real difference in the real world because the labs really do fuck it up.
So I'm watching Williams with some trepidation. Because when you put convicting people on one side of the scale and constitutional rights and actually getting it right on the other, the convicting people side tends to be a whole lot weightier.
And yet, because I'm a glass-half-full sort of guy (just ask anyone who doesn't know me), because I can always see the bright side, and seriously because I know a good point when it appears in a Times op-ed by Jeffrey Fisher (the lawyer who won Crawford and Melendez-Diaz) and in blog posts from Scott Greenfield and the Appellatesquawk, there's this.
New York just gave away the store.
Four amicus briefs were filed on each side in the case. The one that made those folks sit up and take notice is from the New York County (that's Manhattan) District Attorney and Medical Examiner. It makes three points, not in this order.
- There's no testimonial hearsay involved so the whole case should just go away.
- DNA is science and absolutely trustworthy so there's no point in cross-examination.
- If we actually have to produce the people involved, there will be "dire consequences."
It's that last one, dire consequences, that's interesting. Here's the heading (all the caps are how it appears in the brief) of the argument's second section.
AN “ALL-TECHNICIANS-MUST-TESTIFY” RULE WOULD HAVE DIRE CONSEQUENCES FOR THE CRIMINAL JUSTICE SYSTEM
OK, I'm scared. But what exactly are those consequences?
- The guilty will go free?
- Raping and pillaging on the streets?
- Blood and destruction?
- The terrorists will win?
Nope. None of the above. No, the dire consequence is that innocent people would be convicted.
Yep. That's right. If defendants have the right to confront the folks who do DNA tests, the innocent will suffer.
You say that's bizzare? It's counter-intuitive? It's bullshit? Ah, grasshopper, how much you have to learn. Are you not familiar with the poison pill? Here's the important part of the brief (footnote omitted)
At worst, an all-technicians-must-testify rule would force the OCME to reduce the amount of DNA testing it conducts, and force prosecutors to forego forensic DNA analysis in cases where it might be highly probative. In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned. See United States v. Wade, 388 U.S. 218, 229 (1967)(“the influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than another other single factor” (internal quotation and citation omitted)). Significantly, over a recent twelve-month period, nearly one in ten suspect profiles tested by the OCME for the Manhattan DA’s Office resulted in an exoneration. Indeed, in a recent “pattern rape” case in Brooklyn, DNA testing exonerated 18 suspects before the nineteenth submission led to a match. No one concerned for innocent individuals suspected of serious crimes should prefer a world in which DNA testing is needlessly curtailed.
If requiring the testimony of each technician would significantly advance the truth-seeking process, then the practical concerns advanced above would give way. But nothing could be less true.
If DNA testers actually have to testify, well then, the police and crime labs will stop doing DNA testing. They won't do the test because if it showed they had the right guy, they'd want to tell the jury, and that would mean testimony. Can't have that. And can't have the information and not tell the jury. So they just won't learn.
That means that cops and prosecutors and juries will have to rely on eyewitness testimony. And that means that at least 10 percent of the people convicted of crimes, and maybe as many as 95 percent, will be factually innocent.
And remember, "nothing could be less true" than that this will happen. That is, it's absolutely certain.
Being prosecuted in New York? Based on eyewitness evidence? You've now got what is (at least arguably) an admission by a party opponent - not hearsay - able to be put before the jury - saying that there's a pretty fair chance (if not a near certainty) that you're innocent.
Outside New York? We'll find a way.
Or, of course, as I've written before, they could just test the DNA. You know. Cause they might wanna know.
*The actual language of the Sixth Amendment, is
In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.