state of illinois versus the willie williams some morning your honors here please of course my name is brian carroll for sandy williams and with the court's permission i will be swapping the orders of my issues will be arguing the confrontation clause issue first and if there is any time remaining i'll address the foundational issue in this case the state's expert witness violated mr williams right to confrontation as interpreted by the united states supreme court in crawford v washington and recently clarified in melendez d is he massachusetts in has the u s supreme court held that reports of forensic testing in that establish facts used to prove a defendant's guilt constitute testimonial statements and the use of those statements at trial investigation of this crime with the specific intention of obtaining evidence for the subsequent prosecution now so that makes this report testimonial the fact that the conduit through which the the statement was presented to the jury as a instead of a written document as in melinda's he says it's expert testimony here makes no difference testified to content that report she didn't like read off what the profile actually was however she did testify that the profile was of  honor in this case the this is not like a typical seventy three case where there's a menagerie of items said and i experience testifies to relying on and necessarily had to believe to be true in order for him but as opinion have any meaning and there's no getting around that now what you're basically saying is you know wilson vs clarke is implicated in the sense that an expert it's not hearsay under wilson vs clerk it's only basis of the opinion when they look at reports but melendez the years seems to was sufficient to don't hear any confrontation clause problems but that at least as the defendant was presenting the issue was making as to the extent that evidence or testimony prove out of court statement relied on by an expert made must be  considered as true by the trier of fact as it is in this case to that extent i believe crawford in mind as he says do over rule will soon be clark  wilson be clark and the rationale behind seventy three itself is reliability that if you know if experts and if it's reliable enough for experts in the field to you know deal with on their category of reliability yes if i believe under seven with normally under seven hundred three without considering any confrontation clause issues yes i think they would fall under that however you know it's the us supreme court has made quite clear in crawford and again in melinda's he has that for confrontation reasons your liability is not the measure now they can be as reliable as it gets however if the defendant is not given the opportunity to cross examine there's a violation so the reasoning  if they argue my brief d the reasoning behind seven is that only counsel when the is is the wilson vs clerk why rationale only over in cases when the actual opinion is basically the same as the report i mean we're not saying that anything with any expert relies upon raises to the level of the extent that the that information and data relied upon by the expert to the extent that the trier of fact necessarily had to accept that as being true then that then it's really it's coming being offered for its truth not merely you know background information and so to that extent then melendez would klerk would be quite alive and well but to the extent as here where the expert is truly acting more is just a conduit for the out of court statement and then to pretty much the product of police questioning which falls right into the general scope of testimony of statements as stated in crawford lenders he says and this  if the report was produced solely for the purpose of litigation it doesn't qualify under the business report hearsay exception and further even if it did qualify as a business report is still testimony when nature and the fact that something qualifies under the business for business record exception to the hearsay rule doesn't magically transform a testimonial statement into a non testimonial statement it's the nature of the statement that is important and finally the court asked this court to follow the california supreme court's decision in people  be guy or leave i'm trying to correct but again that the the rational and dire was completely rejected by melendez yes they again followed the  it's not accusatory well by itself but you know when to see it says that's not controlling or and then they've finally are you that some it's not it's not traditional does the testimony of a witness to pass the bank this is scientific evidence well one just years again we drip directly addresses and rejects them so based i think this court is right this case is directly analogous to mind is the only different is the conduit through which the out of court statement was presented by the trier of fact finally just to further  illustrate this point consider one if so mark's analysts did come in testify to life but their testimony was we screwed up due to some procedural there was testimonial hearsay in this case because the confrontation clause issue that defendant raises can be disposed of with the poem in a question of whether there was even hearsay just as this case just has this court recently did and people versus lovejoy here and one bought cent r was not merely a conduit for a report written by saw mark rather she took it was an expert who was qualified by as an expert in forensic d n a analysis in forensic biology she testified to her own opinions regarding both  male d n a profile that was extracted from the federal swabs as well as the ultimate d n a match which in her opinion was it was a match between the magical swabs and defendant's d n a profile that was generated by both saw mark and then we also had two other analysts that also testified miss kuwait and mr hay pack took all of that data reviewed it all reached her own independent conclusions she importantly reviewed the electro fair gr swabs those samples after he did the initial tests the acid phosphatase and the apple card and they tested positive that was then packaged as well as the victim's blood standard and that was all sent to sell mark affirmed based on the testing i did in my opinion this was positive for the presence of i believe it was cocaine and so that first distinguishes it because it was an actual it was more akin to an affidavit second and probably most distinguishing is the fact that a document was admitted into evidence without without calling an author of the document here no such hearsay was admitted here cells the the e two still resulted in a mixture so there was both female d n a and male d n a and so there was the presence of a wheels from from two individuals and testified that in her opinion there were two people in this profile and eat two fraction and then she she subtracted out the victim the victim standards and there was the deduced male profile now initially that was done at some arc and then it was sent back to two excuse me the s p there was a wheels were entered into the database that's how an association for defendant standard so defendant standard was taken separate and apart from this and was worked out by karen quoi nadi and then those illegals were entered into the database there was a computer association generated and at that point it's more it was just maybe provide an example to illustrate this point would be a photograph if i was an expert and took a photograph of a blue car for big for use in any case i am not the only person that could come to court and testify that this is a photograph of a blue car anyone who could establish that they were not colorblind and that they were from the way or what the color blue could give their own opinion that this was a photograph of a blue car it's the same with with sandal about us in this case it's the electra hearsay statement who did testify were you know but by a pack who identified who did the initial testing and also identify to believe it was people's exhibits one and two as the actual physical evidence that then was later tied into all the other experts and then several bottles and she was subject to cross it down to each and every locus average the illegals reported at each and every locus there was no additional statement that if that was presented against a friend of that he never had an opportunity to confront that's really a fiction i think maybe but actually perhaps what best illustrates the distinction would be a case the defendant relied on in his briefs and that's a michigan case i believe it's on people vs won speech and in that case i believe it was  a case the prosecution called the witness to testify to d n a test done by another analyst but the prosecution didn't ask any questions of the analyst who was present court regarding what his opinion was of the evidence rather that analysts basically just sat up there and read and regurgitated the work done by another analyst and that's not that's perhaps illustrates also the difference between the scientific process and the actual reality of the testimony that was that the question you just ask is an implication in defendant's confrontation clause argument that's more of an issue for us foundation argument sometimes i think there's a can he somewhat conflated the two issues there are definitely two distinct issues so the admission of expert testimony under wilson versus clarke in seventy three and any any perceived weaknesses in that testimony or any perceived you know problems with her reliance on bench work that actual role of mechanical lab work is not hearsay it's not a statement that's admitted against him it becomes relevant under the foundation argument but as far as the conflict confrontation clause argument really applies to the hearsay statements and has to be testimonial hearsay to boot so the only the only thing he doesn't identify the only i think possible thing that could qualify as a as a statement would be the report actual paper generated by some are but as i've discussed that wasn't admitted and  so it wasn't used against him so there was no knowledge of the use would come up with a different result if instead of a report that came into evidence an expert would have testified based on their report that i'm working  years i would say no the first the science is different and that the reason it was admitted there was no admission of it you know that the match in this case and the the evidence she relied on to reach that mass match was not playing a fashion evidence of the defendant's guilt it was an element of the offen it so that would distinguish melendez yes also melendez d is it's it's interesting that justice thomas based his agreement his concurrence on the fact that this was an actual affidavit that it was a paper that was admitted and someone would read from that that possibly if and when we get when the court later perhaps someday in another case gets to the issue of expert basis testimony  and the actual data the the the graph with the peaks is really is really what's key to the analysis and the fact that she interpreted that she didn't just blindly accept a chart of numbers she actually looked at the data and based on her expertise sanderlin botolph's i'm sorry but the woman who testified she actually looked at the data and the two faction and said it based on on my interpretation and my expertise these  y she was says she was able to look to sight to the accreditation process and the attendant procedures as well as her knowledge of the p c i procedure and she was also able to glean that from the electro fair gram she specifically testified  if there had been degradation of the sample if there had been contamination or anything of that nature that that would have been readily apparent from the electra fareham again that's why it's key because for example what's aggregation the peaks would be less to find she is an expert in this particular discipline was able to testify based on the data but none of those things happened any of those issues would have been readily apparent on electra fairbairn yes the information  without the since so mark did the lab work there would have been no there would have been the existence of a over a male profile would have it would have just been nonexistent so she wouldn't have had any data on him immediate really would have three that this is and wilson versus clark that that she doesn't have to physically do the testing it's very clear that x and this kind of goes more to the foundation that experts may base their opinions on first hand observations hypotheticals or data presented to them outside of course this that position on the foundation of a would effectively limit that to first hand observation yes of course you are the people as we outline in a brief ask this court to reconsider its judgement in people versus palmer this case illustrates the inherent flaw in the palm of court's analysis and the people believe that we've shown that good cause s exist to depart from that opinion based on the fact that in both in this case and also the dixon and spears and other appellate court cases outlined in our brief many appellate courts throughout the state i think with the exception of people vs been trying to go have taken the palmer analysis applied it to cases where there's natural life and a term of years and found that that that that those cannot be consecutive here the plain language of the consecutive sentencing statute mandated consecutive sentences and the trial court properly imposed them in the alternative we asked that this court limit application of palmer to cases involving multiple natural life sentences but it would be our primary position to respectfully request this court to profile that was put into the database and then it was generated the match was generated so what did she do she matched numbers yes she did a review of one electro fair gram to make ok fact doesn't believe that the profile she was given was actually the male profile of the offender then the fact that it matches doesn't matter that's all they  court emphasized the importance of ape the ability of the defendant to cross examine the actual analysts in order to satisfy the confrontation clause in here think it would depend on the actual ultimate opinion if it's a situation where the plug exams in tough has to be true the trier of fact has to believe the blood exams to be true hearsay if it's relevance is tied to its reliability and in this case the relevant of some arts you know their statement that their profile was that of case because well well the confrontation clause doesn't apply in any other cases and the ability for the the defendant to defend himself against the  evidence presented against him is critical and if that's what makes this case different than say you know a a tort case involving medical testimony it's there's different concerns involved