mourning your honour's my name is pamela rubio with the state of public affairs office and i represent john marner may please the court in this case there were many out of court statements introduced at john boehner struggle through the use of surrogate witness testimony the most critical concerning the thirteen lowside d n a testing she performed in this case in two thousand and one which led to hold his conclusion that there was a match between the blood samples of the known blood samples of john boehner and the  introduction of those statements alone is reversible error in this case it got a whole day was the quintessential circuit witness although he did not do any testing in this case at all he testified to these the following out of court statements b  modern thirteen point method aside from the five point method that had previously been done in this case where she was here with the defendant here the targeted individual under age at the time known sample they were labeled with his name they were identified as having been quote unquote recovered from john barner she knew there was a victim in this case she knew that the comparison that she was making was between john one sample somebody that had already been identified between using a five point match and she was comparing that blood to the semen stains from a victim's underpants so certainly she knew that the her statements in her reports would be made for the primary purpose of accusing a targeted individual was john partner or i just want to challenge you on that aren't they objective studies that really have no intrinsic or predic inculpatory value and what i mean by that is aren't these reports as likely to vindicate as they are to incriminate technically d n a testing could exonerate an individual yes but under the circumstances of this case a reasonable police and the chicago police department communicated throughout the investigation that detectives were the ones who specifically requested back in one thousand nine hundred nine that any bloodwork sent to them be searched potest that any suspects any hits be processed for profile any person in standalone bottles shoes would know that her work was being used for the purpose of establishing evidence against a particular suspect we're not talking about you know some analyst in in health department going back they could hear of analyze she could have analyzed  it could have helped the defendant isn't the real testimonial and evidence revalued doesn't that come in the a valuation of those results in relation to a good given suspect and and here the witnesses who did they had both he analysts were death was definitely targeted because of what the objectively what the objective lea and subjectively knew at the time they were performing these tests so i can't say for certain that any time  p analyst touches a piece of d n a evidence it would be considered testimonial but in this particular case i believe that we meet the test set forth by this court and leach under either the accusing a targeted individual test or the primary well i think it depends have there are i don't know what the policy behind it i don't know of any data establishing that policy but there are  were seven analysts i think analysts who testified in this case so some some testify some don't i'm not sure how they determine who testified you know which which testified and which don't but the forensics department  have on their website actually list as one of their duties to communicate well with not one another and to create trustworthy reports for purpose for the potential purpose of testifying in court so they know that they that that's part of their responsibility and you know the back duty again goes into play in the their subjective belief of an objective leaf in what they're doing at the time when they're testing this material especially in this case where we know for sure the police department was the chicago police department was the impetus for this testing from the start  not the case and you need this thing that they do i mean they don't just test things for fun person them for a purpose i mean you have to have some reason to do that well yes that's true i'm not sure in terms of the illinois state police department you know they are they are actually i believe not allowed to do d n a testing on any other on any other case other than a criminal investigation because they're an arm of the police which is in leach who doesn't work for an arm of the police they work for the goal of you know protecting public health the purpose of the creation of an autopsy report is quite different than the creation of  a profile for comparison between in this case between a a known named suspect and a sample from a victim as this court noted d n a testing is is different it goes to identify who the perpetrator could be and not necessarily like and not at all like an autopsy report which goes to identify how this person died not necessarily who committed the crime and so for that reason that's the main distinction between the each in this case and and i believe that the facts of this case do meet the the tests set forth by this court in leech that derive from the case of williams because they were these statements in addition not only were they testimonial but they were also offered for their truth like leetch these statements were offered without any type of limitation and in fact in this case it was a jury trial in bleach it was a bench trial and this court in that has found that the statements were offered for their truth and in this case we have even more indication that they were offered for their truth because the jury and was never instructed on their limited use the state utilized these statements a great deal in closing argument and as the five justices in williams noted such statements are necessarily offered further these types of statements are offered for their truth because to determine the validity of  fact either must necessarily assess the truth of the statements on which his conclusions rely so in other words the jury could not properly evaluate ovies opinion without either agreeing or disagreeing with  statements that he relied exclusively on in reaching that conclusion and so for that reason these statements also meet the standard that they are offered for their truth and because these statements were offered for their truth and because they were testimonial under either test set forth in liege it was error for the semen to come in and it was the state cannot prove that the error was harmless beyond reasonable doubt again this was the kryptonite said that he couldn't escape the d n a couldn't get away from it and then also stressed the the statistics relating specifically to the thirteen point the stronger match referencing the fifteen zero not prove that he was the offender prior to trial this issue was litigated in a motion in limine the introduction of the d n a to the d n a evidence through hearsay testimony and defense counsel explicitly stated prior to trial came in and we had to you know do damage control you know it's similar to a monk armory situation where fires come in you know you kind of have to clean it up as much as you can or you know i you know make make the best of analysis because these statements there are no further questions because these statements were offered for their truth and because they were testimonial and because they were not proven to be harmless beyond a reasonable doubt it was a violation of john foreigner's constitutional right to confrontation for them to be admitted in trial and this court should reverse may please the court my name is amy when i'm an assistant state's attorney from cook county here on behalf of the people of the state of illinois i think before i address some factual clarifications that i think should be made about the record i would direct this court in the following way if you look at defendant's arguments first of all defendant is arguing that every witness who didn't testify everyone who touched the evidence and didn't testify should have testified under the confrontation cla so that alone shows that that is the defendant's position that every single person who touches the evidence in any single capacity with d n a testing must be presented by the people in order to to conform with the confrontation clause secondly if you break will see that defendant argues that illinois state police only does criminal cases and because of that fact that alone imputes knowledge on those analysts to know that the that their testing and their results might be used in a criminal investigation or evidence at trial and therefore it's testimony defendant also argues that because some ark is under contract with the illinois state police and some mark knows that the illinois state police only does testing in relation to criminal cases but they also act always no matter what their testing under what circumstances with that same alledge rendering their results and work testimonial defendant argues with respect to different types of evidence that might be then argues that the testing of known standards for example john barry's known standard that an analyst testing a known standard would necessarily know that the reason why they're being asked to do testing and of standard would be to potentially inculpate somebody in a criminal offense defendant then the opposite of a known standard would be an unknown of an entry standard and defendant argues that for example with the rape kit if someone is testing actual swabs they would know that are related to a criminal case and therefore would possibly be used in a criminal case defendant even goes so far as to argue that some of the more well call ministerial or divorced tasks of some of the analysts such as entering a excuse me entering a profile into the code is database that doing that even renders a testimonial situation because the whole purpose behind the database is to investigate crimes defendant further argues that anyone at a  lab generating a d n a profile of an offender sample would likewise know that the purpose would be to investigate some kind of crime because again the purpose of the of the database is to investigate crimes and then finally i simply preserved it a portion of it and passed it down to the d n a section for the actual d n a analysis i believe greg dominick referred to her as a pure chain of custody witness at trial defendant claims that she shouldn't testif so no matter what the task and what the circumstances defendant is arguing that all work related to d n a evidence is testimony this is first of all that required a required finding under the current state of u little bit later but if you look at the facts of williams williams it's our position it's not distinguishable in any constitutionally significant way that first i would say that situation i also know that even in the dissent the dissenting justices in one point kind of as an aside point out that nobody thinks that it's significant that summer was a private lab and that's the truth and the state has never argue that it is true that the illinois state police crime lab is a state lab however their employees are not man force a person out there not an arm of law enforcement they are scientists perhaps not as easily separated out from the police as for example the office of the medical examiner but separate nonetheless they are scientists who do their work regardless of the circumstances regardless of whether  case or a no suspect case whether it's an evidentiary sample or a known sample they do their work and analyze their evidence pursuant to established scientific protocols that are developed without any particular case in mind and  going to be talking about the fractured united states supreme court and how but what we can take from that and certainly this court has recently spoken to that in leach attempted to synthesize what we can from definition of that primary purpose and in that case in leech this court looked at maybe two different definitions and looked at suggested or more than  that that one of the definitions would be that the primary purpose is providing evidence in a criminal case and that the alternative definition is provide that the doc was prepared for the primary purpose of accusing a targeted individual those fact the end admissible if in fact we were to define primary purpose as providing evidence in a criminal case my question to you then is would you also can see that perhaps under different  hypothetical under different facts in fact the facts that the primary purpose of the generation of this report was to accuse a targeted individual would you agree that that kind of document  dissenters in williams under the facts of this case would based on what they have said would find that these statements or these reports were prepared with the primary purpose of creating evidence for use in a investigation i do not necessarily think that that means that they would find a confrontation clause violation in this case and because it you know i don't think there's much value in kind of guessing which justices might might move over to the other side i'll point this out we know now since williams or says illinois one thing that we do know it was the primary inquiry should be whether something is testimony but there's also the secondary inquiry as to whether or not it was analysis and then he gets his opinion out there so it's different and williams and you suggesting that this case is more like the wilson versus clarke kind of ideas that our court originally in williams won that's a possibility based on you know williams if you remember from ball coming in the dissent in just a sort of mayor's concurrence involve coming she pointed out several factual scenarios that she said were not addressed and all coming one w technical review or scenario where somebody testifies about testing and that they did not personally do but they did have a connection with as opposed to in williams where we had an i ask the analyst testifying to testing that was done in a different lab i would argue that because at her home as a technical reviewer here that that might fall under that separate category and i think it also may fall under what she said was basically the rule seventy three situation where maybe something is and underlin testimony often it's not admitted at trial and it's not conveyed to the trier of fact and you're suggesting that this standard that we had to i'm just trying to fill in the standard there is my second question would be isn't this a factual dispute then what happens after it but my first question is just so you agree then it could apply to actions in this case because it's d n a i don't actually think that this court needs to do that because it's been done by the u s supreme court already so and and i think that at the same time it you know if the court justifies williams here it's consoling consistent with leach because i think this court has recognized that williams even though it's a fractured opinion you know is the most recent decision out there and  age but we don't really even need to look to leave because we didn't address d n a williams address today so let's look at williams and see what we believe from that and if we look at williams we know that when i whether you call it a marks analysis or not whether you want to say that there is a a narrow rule of williams or not or if you're just looking to reach a decision that's consistent with williams the outcome is say and i think that that analysis starts with solemnity assess the lowest common denominator for lack of a better term in all three cases the land as the as well coming and williams has been selected i'm not sure i understand your logic i mean truth i don't mean to be disrespectful but i mean truly large subset ideas i'm not sure what you mean by that i mean there's only one person who said this and the other eight have rejected it so why would we therefore need to why is that the least common and i would disagree that williams they do recognize that solemnity but in the cases that have been decided so far solemnity was a consideration so i would say that the plurality is if you're looking and i think i'm answering i say i know what you're getting and this to the narrowest the narrowest singular rationale for affirming and this case that would be that the legal discussion there are a lot of factual to seats here quite frankly i i will try to clarify some of them and i think this court now will have the documents that were supplemented which are the lab report at the discovery documents so their documents that everyone has had since before trial they are lab reports case files including sanderlin bios's and you'll see that one the actual so that's another possible way that a few members of the dissent in williams may in theory come over in a future case if the facts were presented as that though those documents may not even qualify under the distinguish d n a from autopsies but i got the sense that it was in this would be consistent with williams that you were applying williams and you were saying that in a case even in williams with d n a evidence which could point the finger at an individual it was found to be in on testimonial autopsies even less so because it's never going to point the finger with respect to the facts i think first of all it's the state's position our main position is that those are forfeited and should not even be addressed by this court and my time is limited i will limit it to sanderlin bottles sanderlin bottles what you now are able to see clearly with the documents is that yes salem center the bottles retested the evidence using s t r there is absolutely no indication no support for the for the argument that she did so at the behest of the police there is no phone line that requesting additional testing you'll see that that there's no evidence submission form those things exist when something is done at the behest of the police rather as we've pointed out this was a time period where profiles were being converted from earth to s t r because that's the way the databases were were indication and that that the fact the defendant say distinguish this case from williams are present in this case and therefore the state would submit that having given the state of the case law at this point and the fact that i believe any decision this court would make a law in a line with what defendant is asking to do would not be based on the facts that actually occurred in this case that this court should affirm if it reaches the substantive issue qualify as testimony that may end up being true but my position is that this court and no court should make a blanket ruling excluding any type of testing or any type of statement from the analysis we have to apply the test and look at the objective position of the tester the person making the statement and follow the standards that were set forth if you apply that to most situations involving i s p analyst you will result in a finding that they were for the primary purpose of creating evidence in a criminal case again there for use of the police of a police agency and you know in that case yes that may place a slightly greater burden on the state but in this case there were seven analysts who testified about john barnard's blood testing all they needed to do is talk to more so it's not that much more of a burden than they're already meeting and also they could they may may end up modifying the way they do their testing maybe the limit it to one or two analysts instead of spreading it out like they do so the bottom line is that it's not a blanket argument about all i espied but it may end up resulting in most situations like this case will result in testimonial statements i wanted to touch on williams quickly the the state says that this case is just like williams but there are some very distinguishing characteristics of this case from williams and the first is that  analyst who created the d n a profile from the victim's national swab they didn't they none of the testimonial analysis address any samples of the defendant in this case all of the testimonial statements involved at issue in this case involve john barner standard and so that the role of the analysts there go to what the like like the supreme court in williams said no saying there was no that it was a bench trial and williams and gave the trial judge a lot of you know assumed that they he knew how to make limited use of the evidence presented before him you know how to follow the law in this case again that it was a jury and the jury was not instructed about the limited use of any of these statements the the other thing i wanted to mention about williams is that there is no majority as as this court noted it doesn't need to even actually be followed i think this court did an excellent job analyzing williams and applying it in leach but there is no narrowest ground just thomas opinion is one out of out of nine and you know in that case because it's it's not actually binding on this court you could even go back to sexually in determining the solemnity component are f b i quality assurance standards that the united states supreme court wasn't privy to it in williams when they were making their analysis that that requires a signature and title i accept responsibility for the content of the report so if you even wanted to go with that far back to sexually for the solemnity component but again there's no need to address the levity because the primary purpose test is what