More on cages and due process

In response to my post Defendants, cages and due process, I received the following e-mail from Sabrina Carliss:

Paul, you had an Aug 9th article titled 'Defendants, Cages and Due Process' where you spoke about the process of placing defendants behind bars or reverse cages where they testify from another room. Since it seems you're adamantly against this practice, how would you propose to deal with future alleged victims of sexual assault deal with the trials? Seems like this practice is rather kind to those assaulted (if the alleged is truly guilty). Where did you find the info for the last paragraph? 

Well, Ms. Carliss, my solution is quite simple - the complaining witness takes a seat in the witness stand and answers questions on direct from the prosecutor and on cross from the defense attorney. The Sixth Amendment guarantees a defendant the right to confront the witnesses against him and I believe that the right to confront is severely diluted when a witness is allowed to testify from another room.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. -- Sixth Amendment

My idea may sound harsh but my job is to defend the Constitution. The Bill of Rights doesn't make exceptions (and neither should we) for different crimes. When a person goes on trial, the state is looking to take away that person's life, liberty or property. If we're going to allow the state to do that then we damn well better guarantee that the defendant's rights are protected and that he be afforded all of his rights under due process of law.

By allowing a witness to testify on camera from another room we are telling the jury that the defendant is a bad person. We are telling the jury that it's okay to ignore the presumption of innocence. We are telling the jury it's okay to ignore the Bill of Rights.

Those who seek to tear down our constitutional protections like to twist the question around and ask what we would want if it was our child on the stand. The real question, however, is what would you want if you were the one on trial?

Supremes to tackle confrontation again

The US Supreme Court is set to hear another case on what appears to be the biggest hot button topic in the courthouse - confrontation.

In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.

The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.

The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.

The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.

While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.

Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.

Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.

Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.

Avoiding confrontation 101

Last Thursday I wrote about what the Supreme Court had to say about confrontation and scientific reports in the Bullcoming opinion. The Court's decision does not mean, however, that the only person who can testify about the results of a lab report is the analyst who authored it.

In Bullcoming, the lab report included observations about the condition of the blood tubes and the procedures followed in testing the blood sample. The analyst who testified (not the author of the report) was not asked whether he had developed an independent opinion of the underlying test.

First let's assume that the report does not contain any personal observations of the analyst but consists merely of the results of the test. In that case, another analyst can testify as to the results of the test - but not to the manner in which the test was conducted. Whether such a scenario actually affords a defendant the opportunity to confront the witnesses against him is another story, however.

Now let's say that the analyst's supervisor had observed the analyst conduct the blood test. Then let's say that, just as in Bullcoming, the analyst was not called to testify. The supervisor could have testified to the contents of the report that he observed.

Now let's assume the other analyst conducted a second test on the blood sample. If the results of his test and the result of the test referenced in the lab report were consistent, the other analyst could have testified to his independent opinion about whether the driver was intoxicated at the time of the test (or driving).

Finally, let's not forget that the original analyst was on unpaid leave for an undisclosed infraction at the time of trial. The defendant was entitled to explore the reason for his being placed on leave as it might be relevant as to the trustworthiness of his testimony or the test results.

As a colleague of mine pointed out last week, the Court's opinion in this matter - particularly Justice Sotomayor's concurring opinion - is a primer in how the state can get lab reports (or at least the results of lab tests) into evidence in the absence of the analyst who either conducted the tests or wrote the report.

So while the Bullcoming decision is a victory for the right of confrontation, it's also a blueprint for the state in how to get around it.

Author, author

David Bullcoming was arrested for driving while intoxicated after being involved in an automobile accident in Farmington, New Mexico. The driver of the other car noted that Mr. Bullcoming smelled of alcohol and had his wife call the police. Mr. Bullcoming left the scene but was stopped shortly thereafter. The arresting officer said he failed the roadside exercises and placed him under arrest.

After Mr. Bullcoming decided not to blow into the breath test machine, police obtained a search warrant allowing for a forcible blood draw. That blood specimen was tested by the New Mexico Department of Health's Scientific Laboratory Division (SLD). Curtis Caylor tested the sample which had an alcohol concentration of 0.21 grams per 100 milliliters, and wrote a report in which he certified that the test was conducted properly. As a result, Mr. Bullcoming was charged with aggravated DWI (BAC over 0.16).

At trial the prosecutor announced that Mr. Caylor would not be testifying because he had been placed on unpaid leave and that another analyst would testify as to the test result. Defense counsel objected on the grounds that Mr. Bullcoming's right to confront the analyst who conducted the test was being violated. The trial court didn't see it that way, overruled his objection and allowed the lab report into evidence as a business record.

On appeal the New Mexico Supreme Court ruled that Mr. Bullcoming's confrontation rights under Crawford weren't denied because Mr. Caylor was just the person who wrote down the test result. The Court held that the analyst called to testify was also an expert in gas chromatography and was qualified to testify as to the results of the test.

The US Supreme Court took the case to determine whether or not the state can introduce a lab report that is testimonial in nature through the testimony of an analyst who neither conducted the test nor authored the report.

The answer is no.

As a rule, if an out-of-court statement is testi­monial  in  nature, it may not be introduced against the accused at trial unless the witness who made the state­ment is unavailable and the accused has had a prior op­portunity to confront that witness.   Because the New Mexico Supreme Court permitted the testimonial state­ment of one witness,  i.e., Caylor, to enter into evidence through the in-court testimony of a second person,  i.e., Razatos, we reverse that court’s judgment.  -- Bullcoming v. New Mexico, 564 US ___ (2011)

In making its decision, the Court looked at the contents of the report written by Mr. Caylor. The report contained more than just a test result. The report indicated the steps Mr. Caylor took in testing the sample. The report indicated the condition of the sample before the test was conducted. Since the report contained information that only the person conducting the test could know, Mr. Bullcoming had the right to confront the analyst was conducted the test. Denying Mr. Bullcoming the opportunity to cross examine Mr. Caylor deprived Mr. Bullcoming of his right of confrontation under the Sixth Amendment.

The Court also shot down New Mexico's argument that the lab report was nontestimonial.

A document created solely for an “evidentiary pur­pose,”  Melendez-Diaz  clarified, made in aid of a police investigation, ranks as testimonial. -- Bullcoming

Lab reports are not just business records, they are testimonial documents and defendants have the right under Crawford and Melendez-Diaz to confront the authors of the lab reports. The failure of the state to make the analysts available is a violation of a criminal defendant's rights under the Sixth Amendment.