Part 4

Williams v. Illinois: Responses to Coleman’s Arguments

Paul Rothstein

I will address Coleman’s points set forth in Part 3, in sequence, using his headings.

The Only Relevant “Witness” Is the Testifying Expert

His first point under this is that the analyst who did the test, drew the conclusions, and prepared the report that is fed to the testifying witness does not need to be cross-examined, because the testifying expert is applying her own expertise to what the analyst has supplied her and she can be cross-examined. I fail to see how that obviates the fact that there might be errors or purposeful deception in the analyst’s work that would render erroneous not only the analyst’s work but also the testifying expert’s opinion based thereon. It is true that the testifying expert may be able to spot some of the shoddy or dishonest things in the analyst’s work. But a quick re-read of my list in Part 2, of the kinds of inaccuracies that may infect the analyst’s work, will reveal that it is unlikely that the testifying expert will be able to answer questions about most of them. The most frequent answer, if the testifying witness is honest, will be “I don’t know.”

Coleman’s second point under this heading is that my position would be impracticable in a case involving multiple underlying analysts. He says the logic of my position is that every analyst who participated in any way in the chain of events that led to the report that is relied on by the testifying expert, needs to be produced for cross-examination in court.

This is Coleman’s strongest point, and it may well be the one that, expressly or sub silentio, inclines the Supreme Court to rule in his favor. (As I made clear in Part 2 above, I am not sanguine that my position will carry the day in the current Supreme Court.)

But I think his point here has an answer. There will be some analysts in the chain whom I feel would not need to be cross-examined. Some “analysts” perform only ministerial steps. For example, they may be mere conduits for getting materials to a device. Or mere scriveners who read and record machine-generated results. There will be other such minor participants. These do not present as substantial credibility issues as the analysts whom I argue should be cross-examined.

The Testifying Expert Is a Sufficient Confrontation Clause Witness

Here Coleman argues that the testifying expert is a sufficient witness to cross examine, because

the testifying expert may be cross-examined on a multitude of issues: the number of false convictions based on DNA evidence, the fact that analysts may occasionally be less careful, the fact that certain tests require human analysis and are subject to human error, the fact that certain tests rely on the calibration of machines and the competence to use them, and the fact that even a perfect analysis does not ensure a perfect result.

But these all appear to a jury as theoretical “maybes.” Without showing what specific errors did occur, this kind of talk is just hypothetical and has no teeth. We would not be satisfied, for example, to allow a witness to testify that some person told him he saw defendant murder the victim, and then say that we do not have to cross-examine the purported eyewitness because it is enough to inform the jury of the possibility that people can lie or be mistaken.

Coleman’s final point under this heading is that we do not need to require the prosecution to produce the analyst, because if there is something wrong with his analysis, the defendant can call him to the witness stand. There are several replies to this:

• As Coleman recognizes, the Supreme Court has clearly said that this right (the right to “compulsory process” to produce witnesses for the defense) is not sufficient to obviate the right to have the prosecution present witnesses.
• Coleman would put the expense and difficulty of finding and producing the analyst, and the risk of the analyst being dead or unavailable, on the defendant rather than the state.
• The defendant is not likely to know whether there are specific errors in the analyst’s work that would justify the defendant expending his usually limited resources on finding and calling the analyst to the stand.

Juries and Fine Distinctions Are a Reality of Our Justice System

Coleman misconstrues my argument here, and perhaps it is my fault.

My argument here is not that the jury will find it difficult to follow an instruction not to consider the report for its truth (but to consider it only for its value in evaluating the testifying expert’s opinion). My argument is that both purposes are the same in a case like this. There is no difference between the two uses. The instruction is incoherent nonsense in the present case. Using the report to evaluate the testifying expert’s opinion that the blood samples are a match necessarily involves deciding whether the report is true. It is the report that says the DNA on the victim had the features that the defendant’s DNA turns out to have had. The testifying expert’s opinion that it is a match is utterly and completely dependent on the truth of the underlying report.

Even if the law of evidence has relied on the fiction that these two purposes can be kept separate, should a life and death constitutional right depend on such irrationality? The Supreme Court in Crawford took great pains to de-link the rules of evidence from the Confrontation Clause. At this point in the argument, Coleman expressly concedes that the jury may not be able to make the separation, but he says it is no worse than many other similar instances where the jury cannot understand their instructions—and that the proper remedy would be to reform the law of evidence. I fail to see how this supports further exacerbating the situation by introducing the flaw into constitutional jurisprudence. Just because there are other things just as bad does not mean that this is good.

Law Enforcement Revisited

Here Coleman first attacks my analogy to the right to counsel. I had said that law enforcement always predicts catastrophe when new rights are recognized and did so when an indigent criminal defendant’s right to counsel at state expense was first announced in the Gideon case. I further said that the catastrophe did not come to pass. I said that inconvenience and expense to law enforcement should not trump constitutional rights. Coleman agrees.

But Coleman says the distinction here is that the constitutional right is not clear and that, where there is lack of clarity, it is appropriate to consider expense and inconvenience to law enforcement. I am not sure why that should be so, but in any event, the right of indigents to be supplied counsel at state expense was not clear when Gideon was handed down.

Coleman next posits a case where the underlying DNA analyst has died by the time of trial and the state has not preserved the specimen for testing anew by a new analyst for purposes of trial. Coleman says that under my view, which requires cross-examination of the original analyst, there could be no trial, because he is dead. In effect, there would be an unwritten statute of limitations on the crime imposed by my requirement of cross-examination of the analyst.

My answer to this is that the state should have preserved the specimen for retesting by a new, live analyst who could be cross-examined. The impossibility of trial and the de facto statute of limitations in Coleman’s hypo is the fault of the state.

Finally, Coleman returns to the practical problem of the state having to call multiple analysts in a case where many may have been involved in the chain of analysis. I stated that there were disincentives in the trial process to a defendant always insisting on his rights in this regard and incentives to waive calling analysts—even if this burden on the prosecution were a proper consideration in constitutional analysis. Coleman disagrees that there are these incentives/disincentives to any appreciable degree. This is a disagreement over the realities of what goes on in criminal defense work. I doubt that we can resolve this disagreement between us.

Nevertheless, I think the Supreme Court in Williams may well go with Coleman on the issue under discussion in this debate because of the perceived infeasibility of calling multiple analysts in multiple-analyst cases. The Court may well allow a properly qualified expert surrogate witness to testify based on the underlying report and disclose to the jury what the report concluded without requiring the testimony of the underlying analyst(s). To do otherwise might get the Court into what it might think will be too difficult or result in too many Supreme Court appeals: that is, into either requiring all contributing analysts to testify or distinguishing between those who are necessary and those who are not. I think the Court will find permitting a surrogate witness to be the easiest answer. Hopefully they will impose some stringent requirements on the surrogate witness regarding her expertise, knowledge of the pertinent processes and apparati, and at least partial involvement in the particular process that led to her testimony.

The discussion continues.…