On the Horizon: U.S. Supreme Court to Decide Another Substitute Analyst Case

In a post here, I wrote about the U.S. Supreme Court’s decision in Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), holding that substitute analyst testimony in an impaired driving case violated Crawford. Bullcoming was no great surprise in light of the Court’s prior decision in Melendez-Diaz. However, less than one week after the Court issued its decision in Bullcoming, it granted certiorari in another substitute analyst case, Williams v. Illinois (No. 10-8505). Because of the underlying facts, Williams promises to be more significant than Bullcoming.

In Williams, the defendant Sandy Williams was charged with, among things, sexual assault of L.J. After the incident in question L.J. was taken to the emergency room, where a doctor performed a vaginal exam and took vaginal swabs. The swabs and other evidence were sent to the Illinois State Police (ISP) Crime Lab for testing and analysis. An analyst confirmed the presence of semen in the swabs. About six months later, the defendant was arrested on unrelated charges and a blood sample was drawn from him pursuant to a court order. An analyst extracted a DNA profile from the sample and entered it into ISP Crime Lab database. Meanwhile, L.J.’s swabs from the earlier incident were sent to Cellmark Diagnostic Laboratory for DNA analysis. Cellmark returned the swabs to the ISP Crime Lab, having derived a DNA profile for the person whose semen was recovered from L.J. At trial, ISP forensic biologist Sandra Lambatos testified as an expert for the State. Lambatos indicated that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work and that Cellmark’s testing and analysis methods were generally accepted in the scientific community. Over a defense objection, Lambatos then testified to the opinion that the DNA profile received from Cellmark matched the defendant’s DNA profile from the blood sample in the ISP database. Cellmark’s report was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her opinion, she did not read the contents of the Cellmark report into evidence. At the conclusion of Lambatos’ testimony, the defendant moved to strike the evidence of Cellmark’s testing based upon a violation of his confrontation clause rights. The motion was denied and the defendant was convicted. On appeal to the Illinois Supreme Court the defendant again argued that Lambatos’ testimony about the Cellmark report violated his rights under Crawford and Melendez-Diaz. The court disagreed reasoning:

Lambatos’ testimony about Cellmark’s report was not admitted for the truth of the matter asserted. The State introduced this testimony, rather, to show the underlying facts and data Lambatos used before rendering an expert opinion in this case. The evidence against the defendant was Lambatos’ opinion, not Cellmark’s report, and the testimony was introduced live on the witness stand. Indeed, the report was not admitted into evidence at all. Rather, Lambatos testified to her conclusion based upon her own subjective judgment about the comparison of the Cellmark report with the existing ISP profile.

The court also rejected the defendant’s suggestion that Lambatos was merely a “conduit” for Cellmark’s report, finding her opinion to be “categorically different” from the certificate at issue in Melendez-Diaz.

As noted above, the U.S. Supreme Court has granted certiorari in Williams. The question presented is: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Recent North Carolina substitute analyst cases have followed the approach of the Illinois Supreme Court, finding no confrontation clause violation when the testifying expert forms an independent opinion based on reports done by others (for a full listing of relevant cases, see the cases listed under “Evidence,” Crawford Issues,” “Substitute Analyst and Related Cases” in my Criminal Case Compendium, posted here). If Court finds for the state in Williams, this law will remain intact. If it finds for the defendant, however, North Carolina will once again find its confrontation decisions invalid.

I will do a follow-up post when the case is decided.

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