1. Confrontation & Experts Paul Giannelli Distinguished University Professor Case Western Reserve University

2. Williams v. Illinois “What comes out of four Justices’ desire to limit Melendez–Diaz and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what.” “What comes out of four Justices’ desire to limit Melendez–Diaz and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what.” Justice Kagan (dissenting) Justice Kagan (dissenting)

3. Martin v. State, 60 A.3d 1100, 1104 (Del. 2013) (“The precise holding of Williams is less than clear (and not only to us).”) Martin v. State, 60 A.3d 1100, 1104 (Del. 2013) (“The precise holding of Williams is less than clear (and not only to us).”) State v. Kennedy, 735 S.E.2d 905, 919 (W.Va. 2012) (“[W]e construe Williams with extreme caution and admonish lower courts to do likewise.”) State v. Kennedy, 735 S.E.2d 905, 919 (W.Va. 2012) (“[W]e construe Williams with extreme caution and admonish lower courts to do likewise.”)

4. Issues Federal Rules of Evidence Federal Rules of Evidence Notice & demand statutes Notice & demand statutes Primary purpose test Primary purpose test Nonhearsay rationale Nonhearsay rationale Calibration certificates Calibration certificates No declarant cases (“instrumental” declarants) No declarant cases (“instrumental” declarants) Autopsy reports Autopsy reports

5. Evidence Rules Compare U.S. v. Oates, 560 F.2d 45 (2d Cir. 1977) (lab report identifying substance as heroin inadmissible under FRE 803(8)). Compare U.S. v. Oates, 560 F.2d 45 (2d Cir. 1977) (lab report identifying substance as heroin inadmissible under FRE 803(8)). With U.S. v. Baker, 855 F.2d 1353 (8th Cir. 1988) (“When made on a routine basis, laboratory analyses of controlled substances are admissible as business records under [FRE] 803(6).” With U.S. v. Baker, 855 F.2d 1353 (8th Cir. 1988) (“When made on a routine basis, laboratory analyses of controlled substances are admissible as business records under [FRE] 803(6).”

6. Crawford (2004) Confrontation Clause: “witness against” Confrontation Clause: “witness against” Clause covers “testimonial” statements Clause covers “testimonial” statements Cross-examination required for hearsay statement that are “testimonial” Cross-examination required for hearsay statement that are “testimonial”

7. Nonhearsay Statements Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Crawford, 541 U.S. at 59–60 n.9 (citing Tennessee v. Street, 471 U.S. 409 (1985).) Crawford, 541 U.S. at 59–60 n.9 (citing Tennessee v. Street, 471 U.S. 409 (1985).)

8. “Primary Purpose” Test Davis & Hammon (2006) Davis & Hammon (2006) Testimonial: primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Testimonial: primary purpose of interrogation is to establish or prove past events potentially relevant to later criminal prosecution. Nontestimonial: primary purpose is to enable police assistance to meet an ongoing emergency. Nontestimonial: primary purpose is to enable police assistance to meet an ongoing emergency.

9. Melendez-Diaz v. Mass. (2009) Laboratory report (cocaine) is testimonial. Laboratory report (cocaine) is testimonial. “It suffices to say that what we have referred to as the ‘simplest form [of] notice-and-demand statutes,’ is constitutional....” “It suffices to say that what we have referred to as the ‘simplest form [of] notice-and-demand statutes,’ is constitutional....” 557 U.S. 327 n.12 (citation omitted). 557 U.S. 327 n.12 (citation omitted). Pretrial waiver of right of confrontation Pretrial waiver of right of confrontation

10. Notice & Demand Statutes Notice & demand “plus” Notice & demand “plus” Require explanation for request Require explanation for request Switch burden of proof to defense Switch burden of proof to defense Virginia statute: defense can call expert in defense case-in-chief ( Briscoe,130 S.Ct. 1316 (2010)). Virginia statute: defense can call expert in defense case-in-chief ( Briscoe,130 S.Ct. 1316 (2010)).

11. Notice & Demand (cont.) Valid waiver: Valid waiver: Requires adequate discovery Requires adequate discovery Melendez-Diaz : “The affidavits submitted by the analysts contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.” Melendez-Diaz : “The affidavits submitted by the analysts contained only the bare-bones statement that “[t]he substance was found to contain: Cocaine.”

12. Mont. R. Evid. 803(6) Notification “in sufficient time for the party not offering the report or reports Notification “in sufficient time for the party not offering the report or reports (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (1) to obtain the depositions before trial of the person or persons responsible for compiling such reports, or (2) to subpoena the attendance of said persons at trial.”) (2) to subpoena the attendance of said persons at trial.”)

13. Notice & Demand (cont.) “Nothing in the text of M.R. Evid. 803(6) provides that a defendant's failure to challenge the reports prior to trial results in a forfeiture of his right to do so at trial. The Rule speaks to the admission of the reports, not the effect of the admitted evidence.” “Nothing in the text of M.R. Evid. 803(6) provides that a defendant's failure to challenge the reports prior to trial results in a forfeiture of his right to do so at trial. The Rule speaks to the admission of the reports, not the effect of the admitted evidence.” State v. Gai, 288 P.3d 164, 167 (Mont. 2012) State v. Gai, 288 P.3d 164, 167 (Mont. 2012) Crane v Ky. (S.Ct. 1986) (due process violation) Crane v Ky. (S.Ct. 1986) (due process violation)

14. Bullcoming v. N.M. (2010) Blood-alcohol test report Blood-alcohol test report Surrogate witness: Surrogate witness: knows lab procedure knows lab procedure But did not participate in testing But did not participate in testing

15. Michigan v. Bryant (2011) Primary purpose test for nontestimonial statements enlarged Primary purpose test for nontestimonial statements enlarged Extends concept of “ongoing emergency” Extends concept of “ongoing emergency” weapon & missing assailant weapon & missing assailant Other factors: Other factors: Declarant’s medical condition Declarant’s medical condition Formality Formality Objective test: police & declarant’s view Objective test: police & declarant’s view

16. Williams v. Illinois (2012) DNA reports DNA reports Defendant’s profile (state lab) Defendant’s profile (state lab) Crime scene profile (Cellmark) Crime scene profile (Cellmark) “Capstone” witness (Lambatos) “Capstone” witness (Lambatos) Report not introduced in evidence Report not introduced in evidence Typical case involves only one lab Typical case involves only one lab

17. Williams (cont’d) Two rationales: Two rationales: Primary purpose test Primary purpose test Nonhearsay Nonhearsay Plurality decision (4-1-4) Plurality decision (4-1-4) Justice Thomas: Justice Thomas: Lacked solemnity of an affidavit or deposition Lacked solemnity of an affidavit or deposition (joins plurality but on different ground) (joins plurality but on different ground) Rejects nonhearsay rationale Rejects nonhearsay rationale

18. Williams “primary purpose” Cellmark report not prepared for the primary purpose of accusing a “targeted individual.” Cellmark report not prepared for the primary purpose of accusing a “targeted individual.” But Melendez–Diaz & Bullcoming remain good law: “[T]he technicians who prepared the reports must have realized that their contents (which reported an elevated blood-alcohol level and the presence of an illegal drug) would be incriminating.” But Melendez–Diaz & Bullcoming remain good law: “[T]he technicians who prepared the reports must have realized that their contents (which reported an elevated blood-alcohol level and the presence of an illegal drug) would be incriminating.”

19. Nonhearsay (FRE 703) “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” “An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” “If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.” “If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”

20. FRE 703 (cont’d) “But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” “But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” i.e., exclusion of basis is default position i.e., exclusion of basis is default position

21. Criticism “But part of a rational evaluation of the expert will thus entail an evaluation of her sources— which will inevitably involve a judgment about the likelihood that the sources themselves are valid and worthy of reliance.” “But part of a rational evaluation of the expert will thus entail an evaluation of her sources— which will inevitably involve a judgment about the likelihood that the sources themselves are valid and worthy of reliance.” Mnookin, 15 J. L. & Pol’y 791, 816 (2007) Mnookin, 15 J. L. & Pol’y 791, 816 (2007)

22. Bench Trial In bench trial, “we must assume that the trial judge understood that the portion of Lambatos' testimony... was not admissible to prove the truth of the matter asserted.” (plurality) In bench trial, “we must assume that the trial judge understood that the portion of Lambatos' testimony... was not admissible to prove the truth of the matter asserted.” (plurality) “We rely on Williams to reach the conclusion that Wert's representations and conclusions were admitted for their truth, particularly in light of the fact that this case was a jury trial.”) “We rely on Williams to reach the conclusion that Wert's representations and conclusions were admitted for their truth, particularly in light of the fact that this case was a jury trial.”) Martin v. State, 60 A.3d 1100, 1107 (Del. 2013) Martin v. State, 60 A.3d 1100, 1107 (Del. 2013)

23. Justice Beyer (concurrence) “Lambatos did not have personal knowledge that the male DNA profile that Cellmark said was derived from the crime victim’s vaginal swab sample was in fact correctly derived from that sample. And no Cellmark expert testified that it was true. Rather, she simply relied for her knowledge of the fact upon Cellmark’s report.... Williams had no opportunity to cross-examine the individual or individuals who produced that report.” “Lambatos did not have personal knowledge that the male DNA profile that Cellmark said was derived from the crime victim’s vaginal swab sample was in fact correctly derived from that sample. And no Cellmark expert testified that it was true. Rather, she simply relied for her knowledge of the fact upon Cellmark’s report.... Williams had no opportunity to cross-examine the individual or individuals who produced that report.”

24. DNA Advisory Board requirements, each DNA analyst must undergo proficiency testing. How did the Cellmark expert perform on these proficiency tests? DNA Advisory Board requirements, each DNA analyst must undergo proficiency testing. How did the Cellmark expert perform on these proficiency tests? Each laboratory must undergo audits and keep a corrective action file. What kind of problems had Cellmark experienced, as recorded in the corrective action file? Each laboratory must undergo audits and keep a corrective action file. What kind of problems had Cellmark experienced, as recorded in the corrective action file?

25. Blood-alcohol Case “In Martin's case, the certifying witness did testify, but she had no personal knowledge about the analyst's (Wert's) actions nor did she observe the particular test. She could only rely on Wert's representations in the batch report.” “In Martin's case, the certifying witness did testify, but she had no personal knowledge about the analyst's (Wert's) actions nor did she observe the particular test. She could only rely on Wert's representations in the batch report.” Martin v. State, 60 A.3d 1100, 1104 (Del. 2013). Martin v. State, 60 A.3d 1100, 1104 (Del. 2013).

26. Plurality opinion “And fourth, if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be given any weight by the trier of fact.” (plurality) “And fourth, if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be given any weight by the trier of fact.” (plurality)

27. FRE 702 “(b) the testimony is based on sufficient facts or data; “(b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” (d) the expert has reliably applied the principles and methods to the facts of the case.”

28. Calibration Certificates “[I]t is not the case, that anyone whose testimony may be relevant in establishing the... accuracy of the testing device, must appear in person as part of the prosecution's case.” “[I]t is not the case, that anyone whose testimony may be relevant in establishing the... accuracy of the testing device, must appear in person as part of the prosecution's case.” Melendez–Diaz, 129 S. Ct. at 2532, n. 1. Melendez–Diaz, 129 S. Ct. at 2532, n. 1.

29. State v. Benson “[T]he certificate of calibration in this case was routinely generated as part of the regular equipment maintenance. “[T]he certificate of calibration in this case was routinely generated as part of the regular equipment maintenance. It was not created to establish a specific element in the prosecution of Benson's case.” It was not created to establish a specific element in the prosecution of Benson's case.” 287 P.3d 927, 932 (Kan. 2012) 287 P.3d 927, 932 (Kan. 2012)

30. U.S. v. Foster Prosecution “failed to establish that Ranger Smith is an otherwise qualified witness under Rule 803(6) who can lay a foundation for the admission of Ex. 1.... Smith offered no testimony regarding the creation of the Certificate of Instrument Accuracy and whether it was made contemporaneously with testing by a person with knowledge.” Prosecution “failed to establish that Ranger Smith is an otherwise qualified witness under Rule 803(6) who can lay a foundation for the admission of Ex. 1.... Smith offered no testimony regarding the creation of the Certificate of Instrument Accuracy and whether it was made contemporaneously with testing by a person with knowledge.” 29 F. Supp. 2d 354, 361 (W.D. Va. 2011) 29 F. Supp. 2d 354, 361 (W.D. Va. 2011)

31. “No declarant” cases U.S. v. Washington, 498 F.3d 225 (4th Cir. 2007) U.S. v. Washington, 498 F.3d 225 (4th Cir. 2007) Argument: expert’s testimony based on machine-generated reports of raw data and technicians who operated the chromatograph were not called as witnesses Argument: expert’s testimony based on machine-generated reports of raw data and technicians who operated the chromatograph were not called as witnesses FRE 801(b): declarant is a “person” FRE 801(b): declarant is a “person”

32. Autopsy Reports Not “targetted” Not “targetted” “An autopsy report is prepared in the normal course of operation of the medical examiner's office, to determine the cause and manner of death, which, if determined to be homicide, could result in charges being brought.” “An autopsy report is prepared in the normal course of operation of the medical examiner's office, to determine the cause and manner of death, which, if determined to be homicide, could result in charges being brought.” People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012) People v. Leach, 980 N.E.2d 570, 590 (Ill. 2012)

33. U.S. v. James Routine autopsy report not testimonial - not prepared primarily to create record for trial Routine autopsy report not testimonial - not prepared primarily to create record for trial ME “is a wholly independent office” ME “is a wholly independent office” No suggestion anyone suspected that victim had been murdered (by drugs) No suggestion anyone suspected that victim had been murdered (by drugs) 712 F.3d 79, 99 (2d Cir. 2013) 712 F.3d 79, 99 (2d Cir. 2013)

34. State v. Kennedy Statute specifies use in “in judicial proceedings.” “As such, under the ‘primary purpose’ test, there is no question that the report is testimonial. Moreover, in this particular instance, Kennedy was under suspicion and in fact, in custody, when the autopsy was conducted and therefore the autopsy report could arguably be said to have been prepared to ‘accuse a targeted individual.’” 735 S.E.2d 905, 919 (W.Va. 2012) Statute specifies use in “in judicial proceedings.” “As such, under the ‘primary purpose’ test, there is no question that the report is testimonial. Moreover, in this particular instance, Kennedy was under suspicion and in fact, in custody, when the autopsy was conducted and therefore the autopsy report could arguably be said to have been prepared to ‘accuse a targeted individual.’” 735 S.E.2d 905, 919 (W.Va. 2012)

35. Kennedy (cont.) Confrontation violation: “to the extent [testifying expert] merely reiterated the contents of the autopsy report” Confrontation violation: “to the extent [testifying expert] merely reiterated the contents of the autopsy report” But “admission of Dr. Sabet's independently formulated opinions as set forth herein above, which Kennedy had the right to cross-examine, did not violate the Confrontation Clause.” But “admission of Dr. Sabet's independently formulated opinions as set forth herein above, which Kennedy had the right to cross-examine, did not violate the Confrontation Clause.”

36. People v. Dungo “The usefulness of autopsy reports, including the one at issue here, is not limited to criminal investigation and prosecution; such reports serve many other equally important purposes.” “The usefulness of autopsy reports, including the one at issue here, is not limited to criminal investigation and prosecution; such reports serve many other equally important purposes.” Civil wrongful death cases Civil wrongful death cases Life insurance coverage Life insurance coverage Family wants answers Family wants answers 286 P.3d 442, 621 (Cal. 2012) 286 P.3d 442, 621 (Cal. 2012)