Thursday, June 21, 2012

Source of the "targeted individual" test?

I hope to be offering more commentary on Williams within a few days.  Meanwhile, perhaps I can offer a solution to one mystery.  Justice Kagan quite sensibly says that where Justice Alito's "targeted individual" test comes from "is anybody's guess."  One answer, ironically, might be right here on this blog.  In a couple of commentaries, and then in a longer one in January 2011 that I put in a full posting, titled "Pure Cold Case" Prosecutions & The Confrontation Clause:  What Does The Future Hold?, Paul Vinegrad, a frequent contributor to this blog -- always resourceful and frequently, as here, wrong-headed, in my view -- suggested this test.  (He spoke about the need for "reasonable suspicion" to detain or arrest "a particular person.")  You can see Paul's posting, and the critical commentary I offered on it, by clicking here.

Of course, even if this does solve the mystery of where Justice Alito got the idea, it only pushes the mystery back somewhat.  Referring to Paul's test in my response, I said, "I’m not sure where he gets that – so far as I know there is no historical basis for it." And I pointed out what would be its stunning consequences -- for example, rendering outside the scope of the confrontation right a police officer's formal description of a crime scene, made before a suspect was identified but in full anticipation of use at an eventual trial.

Five justices rejected this theory, and for good reason.  I am sorry that four justices remain so desperate to limit the impact of Melendez-Diaz that they are willing to sign on to just about any theory that achieves that objective, no matter how lacking in foundation it might be and what devastation it would work on the confrontation right.  But five remains greater than four.

Tuesday, June 19, 2012

Thoughts on Williams, Part I: Reasons to Think the Impact May be Limited

Here is a first installment of preliminary thoughts on Williams. Obviously, I think the result is unfortunate; I think Williams should have won. But the damage to the Confrontation Clause may be much less than I might have guessed it would be given the result. This posting will simply focus on four reasons why that is so.

Splintered Court

First, to state the obvious, there is no majority opinion. The case appears to stand for nothing more that the proposition that in the circumstances of this case there is no Confrontation Clause violation. And, as Justice Kagan emphasizes, repeatedly and usefully, five Justices reject the rationales stated in Justice Alito’s opinion, clearly and decisively. That opinion, like the dissent in Melendez-Diaz, contains some assertions that would seriously undercut the Confrontation Clause if they became law. But only the Melendez-Diaz dissenters sign on to that opinion. Predictions that Justices Sotomayor or Kagan would go over in the circumstances of this case were not borne out, and Justice Kagan wrote an excellent, refreshing dissent.  

No Plausible Alternate Explanation

Second, Justice Alito rightly seizes, repeatedly, on a circumstance that is helpful to him, and the prominence he gives to it suggests that for at least one member of the plurality it may have been decisive. This case was not like Melendez-Diaz, Briscoe, or Bullcoming, in which the questions were how much, if any, of a bad factor (cocaine, blood alcohol) was present in a given sample; in those cases, one can imagine a lazy, incompetent, or dishonest analysis helping the prosecution by simply saying, in effect, “A lot.” In this case, by contrast, Cellmark was presented with a crime scene sample and reported a DNA profile that, as it turned out, matched a person against whom there was significant other evidence. As Justice Alito points out, Cellmark had no reason to suspect Williams, and no other source, so far as we can tell, for knowing Williams’s profile. So the chance of Cellmark coming up by chance with a DNA profile that happens to match a guy in the vicinity and one against whom there is, at least in the end, substantial evidence, is really infinitesimal.

This is not simply a matter of saying that the Cellmark report is reliable. I’ll make the point by drawing on an analysis I made decades ago, Route Analysis of Credibility and Hearsay, 96 Yale L.J. 667, 682-83 (1987), of an old case, Bridges v. State, 19 N.W.2d 529 (Wis. 1945). Bridges was accused of molesting a young girl. The girl made a statement to her mother describing the apartment where the incident occurred. The description closely matched that of Bridges’s apartment, and let’s assume that, taken in conjunction, the set of features that she described was highly unusual. Let’s also assume that she didn’t testify and that there is no reason to suspect that she was in the apartment on any occasion other than the one in question. The statement might appear to be offered for the truth of what it asserts – that the girl was in (and molested in) a room meeting the description that she stated. But now let’s say that instead of stating that she was in a room of that description, she came home from school with a story she wrote featuring a room of that description Clearly, the story is not offered for the truth of what it asserts. And yet, if the description is sufficiently odd, but matches the accused’s apartment, it has substantial probative value. Given that the child was not in the apartment on any other occasion, the fact that she put together the odd conjunction of features may be powerful evidence that she was in the apartment on the occasion in question – even if she is not regarded as a reliable witness.

So now let’s bring this back to a DNA case. Suppose (1) a crime scene sample is sent to a lab, (2) the lab sends back a piece of paper bearing the case number for that sample and a set of numbers that, it turns out, match the DNA profile of a given person, (3) the lab was not given that person’s DNA profile, and (4) there is substantial other evidence suggesting that that person left DNA in the crime scene sample. I believe all of these facts were true in Williams. In these circumstances, I think the prosecution probably should be allowed to present that piece of paper and say, in effect, “I’m not asking you to rely on the proficiency of this lab. But there’s no plausible way in these circumstances that the lab could have come up with those numbers unless Accused left his DNA in the crime scene sample and the lab did an accurate DNA test on the sample.”

That’s not the way the evidence was presented here, and so I still thought Williams ought to have won. My point now is simply that this set of circumstances was sufficiently important to the Alito group that he cited it three times; absent it, the case might (and should) have looked very different to one of that group.

Identity of the Fact-finder

Justice Alito indicates that the foursome might have viewed the case differently if the fact-finder were a jury. The other five properly wonder how the identity of the fact-finder can affect a Confrontation Clause issue. As I understand it, Justice Alito’s response is in effect this: There was an OK way that a fact-finder could use the Cellmark information, as supporting the expert’s opinion (I don’t agree, given the presentation of the information, but that’s a subject for another post), and a bad way, which would violate the Confrontation Clause. There’s a substantial chance that a jury would fail to draw the distinction, but a trial judge can do it. I think it probably hurt Justice Alito to have to make the concession, acknowledging that instructions might not be a satisfactory cure here, but it may have been the price of keeping the four together. Of course, one of the difficulties here is that the supposed distinction between admission for the truth and admission in support of the expert’s opinion is non-existent when the statement supports the opinion only if true. Five justices recognized this point.


As I understand Justice Thomas’s opinion, the case would come out differently if the report had been certified. Let’s put aside for the moment the merits of that view. (I don’t think there are any.) My understanding is that as of now the laws of some states purport to allow lab reports only if sworn or certified, or somehow made what even Justice Thomas would regard as sufficiently formal to come within the Confrontation Clause. So where this is true, even if the facts are otherwise identical to those of Williams, it appears the case comes out differently. Those state laws might be changed, of course. If a given state removes its requirement of formalization, for the obvious and presumably stated purpose of making the lab report admissible, would Justice Thomas then say that this is the type of evasion he has previously, and again in Williams, said cannot be made to avoid the Confrontation Clause? I wouldn’t hazard a prediction.

Monday, June 18, 2012

Petition in Rose denied

I hadn't seen the order list before, but now I have. The etition for certiorari that I filed in Rose was indeed denied. So I guess that this is a conflict that will persist for a while longer; in some states, the Constitution is deemed to prevent child witnesses from testifying attrial from behind a screen, and in some states it isn't. Perhaps the Court thought the conflict was not yet deep enough, but it's impossible to know. I hope that befoer too long goes by they do take a case on this issue.

Opinions in Williams

You can read the opininos in Williams v. Illinois by clicking here. Commentary from me later.

Williams affirmed without majority opinion

Scotusblog reports that Williams was affirmed 5t-4, with Justice Alito writing for four justices (the Melendez-Diaz and Bullcoming dissenters), Justice Thomas concurring in the result, and the others dissenting. That's all I know for now; I haven't seen the opinions. I'll post them soon, and offer some comments, probably today, maybe tomorrow. I also know that the Court did not grant the petition for certiorari in Rose -- but I haven't seen the order list yet, so I don't know for sure whether it was denied.

Friday, June 01, 2012

BIO and reply brief in Rose v. Michigan

I've been tied up, in large part with grading, but now I'm going to try to catch up on some postings I've been meaning to make over the last few weeks. For starters, here are the Brief in Opposition and my Reply Brief in support of the petition for certiorari in Rose v. Michigan, which I presented in a prior post. (The petition seeks review of a decision allowing a child to testify from behind a screen in the trial courtroom; it raises the questions of whether this procedure was inherently prejudicial and of whether Maryland v. Craig, 497 U.S. 836 (1990), should be overruled.) The Supreme Court may decide whether or not to grant the petition as early as June 18.