Chemerinsky: The Latest Test on the Confrontation Clause
Erwin Chemerinsky
Although Williams v. Illinois will likely make few headlines, it is a case that could have a major effect on how criminal trials are conducted in the United States. The issue is whether the Confrontation Clause of the Sixth Amendment is violated when a laboratory analyst testifies as an expert witness, even though the analyst played no part in the actual DNA testing. Here, the case involves the question of whether the defendant’s DNA matches that of a rape assailant.
Williams, which will be argued on Dec. 6, will be the third time in the last four years that the U.S. Supreme Court has grappled with an issue that arises every day in courtrooms across the country: how are laboratory reports to be presented in criminal cases?
The most important change in criminal trials in the last decade was the court’s 2004 decision in Crawford v. Washington, which held that prosecutors may not use testimonial statements from unavailable witnesses, even if those statements are reliable.
Five years later, in Melendez-Diaz v. Massachusetts, the Supreme Court ruled 5-4 that this applied to laboratory reports. Melendez-Diaz was convicted of distributing cocaine and at trial the prosecutors had placed in evidence laboratory certificates as to the nature and quantity of the drug.
Justice Antonin Scalia, writing for the court, held that this violated the Confrontation Clause. The court said that certificates were clearly “testimonial” and that the defendant’s Sixth Amendment rights were violated since the laboratory analyst had not testified against him.
The court stressed the importance of being able to cross-examine the laboratory analyst and noted that “[c]onfrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.”
Justice Anthony M. Kennedy wrote a vehement dissent, joined by three other justices, in which he lamented the burdens on prosecutors and the great likelihood that the court’s ruling would mean that guilty defendants would go free simply because the analyst is unavailable.
“The court purchases its meddling with the Confrontation Clause at a dear price, a price not measured in taxpayer dollars alone,” Kennedy said. “Guilty defendants will go free, on the most technical grounds, as a direct result of today’s decision, adding nothing to the truth-finding process.”
The court returned to the question this year in Bullcoming v. New Mexico. Bullcoming was convicted of driving while intoxicated, but the laboratory analyst who did the blood testing and prepared the report as to his blood alcohol level was on unpaid leave and did not testify. The testimony as to the blood alcohol level came from another analyst, who was familiar with the testing device used to analyze Bullcoming’s blood and with the laboratory’s testing procedures, but who had neither participated in nor observed the test on Bullcoming’s blood sample. The Supreme Court ruled, again 5-4, that this violated the Confrontation Clause.
Melendez-Diaz had been a 5-4 decision with Justices John Paul Stevens and David H. Souter, both now retired, in the majority. But this is not an area where ideology necessarily predicts votes: In Melendez-Diazand Bullcoming the majority included Justices Scalia, Clarence Thomas and Ruth Bader Ginsburg, while Chief Justice John G. Roberts and Justices Kennedy, Samuel A. Alito, and Stephen G. Breyer were in dissent. If either Justice Sonia Sotomayor or Kagan had joined the dissenters, there would have been five votes to overrule or at least narrow Melendez-Diaz. But both of the new justices joined the majority in Bullcoming.
Once more in Bullcoming, Kennedy wrote for the dissenters and strongly objected to the requirement that the person who did the laboratory analysis must be present to testify. It is highly unlikely that the lab analyst who did the blood test remembers Bullcoming’s blood sample from among all of the others that she tested.
Most of all, the dissent again was concerned that guilty defendants would go free just because the lab analyst was not present to testify. “And if the defense raises an objection and the analyst is tied up in another court proceeding; or on leave; or absent; or delayed in transit; or no longer employed; or ill; or no longer living, the defense gets a windfall,” Kennedy wrote.
“As a result, good defense attorneys will object in ever-greater numbers to a prosecution failure or inability to produce laboratory analysts at trial,” Kennedy said. “The concomitant increases in subpoenas will further impede the state laboratory’s ability to keep pace with its obligations.”
The issue raised by the dissent is an important one that constantly arises: what if the analyst is unavailable? Is there any way to get the lab report before the jury? In Bullcoming, Ginsburg, in a part of the opinion joined only by Scalia, suggested alternatives, including that labs retain samples and have new analysts retest them. This could work in some cases, but seems unfeasible in other situations, like coroner’s autopsy reports.
Sotomayor wrote a concurring opinion in which she laid out alternatives that might be used when the analyst is unavailable. She explained that this was not a case where the laboratory report was prepared for a purpose other than testimony in court, such as a medical report. Nor, she said, was this a case in which the person testifying was a supervisor or reviewer with a personal, though limited, connection to the scientific test at issue.
And finally, Sotomayor said, this was not a case “in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” Sotomayor thus identified three ways in which prosecutors might be able to get laboratory reports into evidence even when the analyst is not available to testify.
Just a few days after the court decided Bullcoming, it granted certiorari in Williams, which presents exactly the third situation Sotomayor described: Does it violate the Confrontation Clause for a state rule of evidence to allow an expert witness to testify about the results of a laboratory analysis where the defendant does not have the opportunity to confront the actual analyst?
Williams involves a laboratory test in a rape case. The Illinois State Police Laboratory sent the biological evidence to a laboratory in Maryland, which conducted the test and sent a DNA profile of the male assailant. Sandy Williams was arrested on another crime and after he gave a blood sample, his DNA matched that of the assailant from the rape case.
At Williams’ trial, an analyst for the Illinois State Police Laboratory testified about the DNA from the assailant and from Williams and concluded they matched and that “the profile would be expected to occur in approximately 1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” The analyst admitted that the DNA testing had been done in a laboratory in Maryland and that she had not participated in it. She said that she did an independent review of its data in coming to her conclusions as an expert witness.
Williams was convicted and the Illinois higher courts affirmed, stressing that the analyst was testifying as an expert, that the report prepared by the Maryland lab was not itself introduced into evidence, and that there had been the opportunity for cross-examination.
The case is enormously important. DNA testing is a multi-step process and what occurred in this case is typical. There are approximately 200 labs that do DNA testing in the United States. It is common for experts to testify about DNA matches though they did not actually do the DNA testing. More generally, Federal Rule of Evidence 703 and similar state rules allow experts to base their opinions on non-admitted evidence from other sources. The court’s decision in Williams will determine whether this is permissible in criminal cases or whether it violates the Confrontation Clause.
If the court affirms the Illinois courts, it will approve a way to limit the adverse effects of Melendez-Diaz and Bullcoming on prosecutors; experts can testify based on the laboratory report without it actually being introduced into evidence.
If the court reverses the Illinois courts and applies Melendez-Diaz and Bullcoming, prosecutors will face serious hurdles not only when the analyst is unavailable, but also in cases like Williams where there are multiple steps and many analysts involved.
Underlying all of this is a basic question of constitutional law: how much should practical consequences matter in interpreting a provision like the Confrontation Clause? That is what divided the majorities and dissents in Melendez-Diaz and Bullcoming, and it could be what Williams ultimately turns on.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
