How Many DNA Techs Does it Take to Admit DNA Evidence?

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The Supreme Court is deciding who should testify during trials--those who produced analyses, or those who reviewed them

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"What Justice Scalia wants to know," said that scamp Samuel Alito last term during oral argument in Brown v. Entertainment Merchants Association, "is what James Madison thought about video games."

Yesterday, the Court didn't ask what Sir Matthew Hale thought of gel electrophoresis.

Hale, the 17th-Century jurist who wrote the treatise Historia Placitorum Coronæ, featured prominently in Crawford v. Washington , a 2004 case whose majority opinion, by Scalia, comes as close as we will see to pure "originalism." The issue was the meaning of the Sixth Amendment's Confrontation Clause , which provides that "in all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him."

The Crawford opinion claimed to derive that constitutional Holy Grail, the "original meaning" of the clause; it discussed the dreaded "Marian depositions" of the 16th Century and the trial of Walter Ralegh in the Great Hall of Winchester in 1603. Scalia eschewed any balancing of the common-law rules of hearsay and its exceptions, brushed back the Federal Rules of Evidence, stopped his ears to questions of which statements are reliable and which aren't, and disdained to consider the practical effect of "reinstating" the rule he heard in the ancestral voices: no out of court statements that are "testimonial in nature" can be introduced at court unless the defendant has had a chance to cross-examine the witness.

In Williams v. Illinois , the issue is this: when a DNA analyst testifies at trial that she has compared analyses of two DNA samples and found a match, does the prosecution also have to produce the experts who produced the analyses, or only the expert who reviewed them both and made the match?

Police took a sample of Sandy Williams's blood after he was arrested on an unrelated charge. A tech at the official state lab sequenced his DNA. A state expert then compared the chart produced with another chart, drawn from a sample taken in a "rape kit" from the victim. That chart was produced by an out-of-state lab. The state-lab tech testified that proper procedures were followed. The expert testified that the two charts were a close match. But she wasn't able to give any evidence about the procedures that produced the second chart, except to say that the commercial lab was accredited. Williams's attorneys, citing Crawford and the cases following it, moved to strike that evidence. The state trial court refused.

The question is obviously important to both sides of the criminal-law divide. Requiring testimony from both experts makes criminal prosecution more costly. Allowing only one expert to testify raises the chance that some flawed DNA evidence may sway the jury without a chance to test it by cross-examination.

In practical terms, it's important because (barring testimony by Emily (Temperance Brennan, M.D.) Deschanel) DNA is likely to be the star witness at any criminal trial. It can certainly on occasion mislead: "DNA testing... even when performed in perfect accordance with protocols -- often fails to provide 'absolute proof' of anything.") That's Justice Alito, writing in a case where a convict sought access to DNA results in an effort to prove his innocence.)

Back in the day, meaning the 18th Century, the only expert witnesses were "copyists" who hand-copied official documents and vouched for their accuracy. But thanks to Justice Scalia, the current test for any evidence of out-of-court statements, including expert statements, is whether they are "testimonial," meaning that in the 18th Century it would have been seen as a "solemn declaration or affirmation made for the purpose of establishing or proving some fact." That definition comes from Noah Webster's American Dictionary of the English Language (1828) considered by Justice Scalia to be an unfailing guide to what the framers of the Amendment were thinking in 1789.

Post-Crawford cases held that police-lab reports ("Contains: Cocaine" or "Blood Alcohol: 0.12") must be introduced into evidence by the technician who performed them, not just by an expert who knew generally how such tests are done. In the blood-alcohol test case, Justice Anthony Kennedy dissented, saying that Crawford was turning the confrontation jurisprudence into "a body of formalistic and wooden rules, divorced from precedent, common sense, and the underlying purpose of the Clause." Joining him were Alito, Breyer, and Chief Justice John Roberts.

The briefs in Williams show a split personality. On the one hand, the meaning of the word "testimonial" (which, as Kennedy once mildly pointed out, doesn't appear in the Sixth Amendment) is crunched within an inch of madness; on the other hand, the contending sides point out practicalities. To the prosecution, a requirement of more testimony will lead to undeserved acquittals; to the defense, it will permit sloppy or faked DNA tests to convict the innocent.

Brian Carroll, the Illinois Assistant Appellate Defender representing Williams, began by asserting that this case involved "testimonial evidence." Justice Alito asked, "hasn't it long been accepted that experts may testify to the facts that form the basis for their opinions on the ground that... the information is not being introduced to prove the truth of the matter asserted?" Carroll wasn't able to say much in response before Justice Scalia swooped in to rescue him, saying that Alito's question had concerned the normal expert "hypothetical question." But here, "she testified that... she had a match... That seems to me quite different from... the ordinary hypothetical put to an expert." Justice Kennedy later noted that "if she weren't relying on the truth of the assertion from Cellmark, it would be irrelevant for the jury."

Anita Alvarez, the Cook County State's Attorney, noted that in this case, unlike the earlier drug and blood-test cases, the report itself was referred to in testimony but not admitted into evidence. "The Confrontation Clause is concerned about what statements are admitted, what evidence is admitted. No Cellmark reports were admitted here."

At this point, Scalia read directly from the trial transcript:

Q. Did you compare the semen that had been identified by Brian Hapack from the vaginal swabs of [the victim] to the male DNA profile that had been identified by Karen Kooi from the blood of Sandy Williams?

A. Yes, I did.

Deputy Solicitor General Michael Dreeben, who appeared to show federal support for Illinois, reminded the court that the law presumes that triers of fact (juries or judges in bench trials) do not make improper use of evidence. "If they are told not to take evidence for the truth of the matter asserted, they are presumed to follow that instruction," he said.

Justice Elena Kagan was skeptical. "The State is relying on the fact that people will take what Ms. Lambatos [the expert] says about what she knows about where the report came from as a fact, as the truth of a matter, that in fact this report did come from the victim. And so the jury can be given instructions saying: You can't consider this except for the truth of the matter asserted.' But it's a bit of a cheat, no?"*

A few minutes later Chief Justice John Roberts countered: "We do think our law has established though that a jury will follow an instruction in this situation... not to take the testimony for truth of the... matter."

Only small part of the argument concerned the question on most of the Justices' minds: how hard will a decision for Williams make it to introduce DNA evidence? Early in the argument, Breyer asked Appellate Defender Carroll why the Court shouldn't recognize a special exception to the "testimonial evidence" rule for expert tests, "which would have the virtue of not requiring ten people to come in and testify?" If the Court did not recognize such an exception, he said, "I fear it will push the system in the direction of relying on less reliable eyewitness testimony rather than more reliable technical laboratory DNA-type evidence."

"Are we talking about ten witnesses?" asked Justice Ginsburg. "I thought we were talking about just one."

Alito cited an amicus brief from the Manhattan District Attorney's office stating that "their very fine crime lab involves at least 12 technicians in the analysis of DNA."

Alito's citation of the burden on those fine crime lab techs -- like his jape about federal-era video games -- highlights a split in the Court's conservative wing. The two senior conservatives, Grandpa Nino and Uncle Clarence, are like Statler and Waldorf : things were better back in the day. Young John and Sam, however, aren't much interested in the old guys' reminiscences about the Historia Placitorum Coronæ. Where Scalia turns for answers to old dictionaries, Roberts uses new ones. Alito is almost a pure legal pragmatist--the right-wing equivalent of Breyer. Breyer wants law to "make our democracy work;" Alito wants it to reward the good and punish the bad.

* Note -- the "except" seems to me to be a slip of the tongue; what Kagan meant, I think, was "you can't consider this... for the truth of the matter asserted."

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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