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Confrontation – Expert Testimony

Sandy Williams v. Illinois, USSC No. 10-8505, 6/18/12, affirming People v. Williams, 238 Ill. 2d 125, 939 N.E. 268

A split Court (4-1-4) upholds against Confrontation objection, admissibility of expert testimony that a DNA profile, produced by a different lab, matched Williams’ profile. Because the rationale favoring admissibility doesn’t earn a clear majority of votes, the opinion should be approached with the following principle in mind, Lounge Management v. Town of Trenton, 219 Wis. 2d 13, ¶13, 580 N.W.2d 156 (1998): “Recognizing the potential precedential problems inherent in fractured opinions, the United States Supreme Court held in Marks v. United States, 430 U.S. 188, 193 (1977), that when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court’s ultimate holding.” That said, determining the “narrowest grounds” is sometimes easier said than done, other times still, as fool’s errand. But as will be seen, there is a readily-determined majority in favor of at least one significant and recurrent principle—the rub being that that principle doesn’t translate into relief here (though it might well given a slight variation in facts). Here goes.

Plurality (Alito; Roberts; Kennedy; Breyer).

Petitioner’s main argument is that the expert went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim’s vaginal swabs. But both the Illinois Appellate Court and the Illinois Supreme Court found that this statement was not admitted for the truth of the matter asserted, and it is settled that the Confrontation Clause does not bar the admission of such statements. See id., at 59–60, n. 9 (citing Tennessee v. Street, 471 U. S. 409 (1985) ). …

We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the Sixth Amendment.

That’s it, in a nutshell, at least as to the principal point of controversy, keeping mind that the quote above is nothing more than the barest summary. (The Court’s discussion is of course much more detailed.) The plurality also advances a separate rationale for admissibility: even if it were substantive evidence, the Cellmark report wasn’t “testimonial,” because it “plainly was not prepared for the primary purpose of accusing a targeted individual.” Neither rationale commands a majority, hence neither should be considered controlling; the Thomas concurrence agrees that the report wasn’t testimonial, but for a different reason. (Breyer also files a concurrence, but because he explicitly joins the plurality, it won’t be summarized here.)

Concurrence (Thomas).

… Here, the State of Illinois contends that Cellmark’s statements—that it successfully derived a male DNA profile and that the profile came from L. J.’s swabs—were introduced only to show the basis of Lambatos’ opinion, and not for their truth. In my view, however, there was no plausible reason for the introduction of Cellmark’s statements other than to establish their truth. …

Unlike the confession in Street, statements introduced to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay purpose. There is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert’s opinion and disclosing that statement for its truth. …

… Thus, the validity of Lambatos’ opinion ultimately turned on the truth of Cellmark’s statements. The plurality’s assertion that Cellmark’s statements were merely relayed to explain “the assumptions on which [Lambatos’] opinion rest[ed],” ante, at 3, overlooks that the value of Lambatos’ testimony depended on the truth of those very assumptions. 3

Having concluded that the statements at issue here were introduced for their truth, I turn to whether they were “testimonial” for purposes of the Confrontation Clause. …

Applying these principles, I conclude that Cellmark’s report is not a statement by a “witnes[s]” within the meaning of the Confrontation Clause. The Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results ob- tained. See Report of Laboratory Examination, Lodging of Petitioner. The report is signed by two “reviewers,” but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. See ibid. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation.

Dissent (Kagan; Scalia; Ginsburg; Sotomayor).

Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert witness who had no idea how they were generated. …

… five Justices agree, in two opinions reciting the same reasons, that this argument has no merit: Lambatos’s statements about Cellmark’s report went to its truth, and the State could not rely on her status as an expert to circumvent the Confrontation Clause’s requirements. See ante, at 2–8 (opinion of Thomas, J.).

… Unlike in Street, admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.

The dissent goes on to dispute, as did Thomas’ concurrence, the plurality’s novel “targeted” accusation test which therefore is rejected by a 5-4 majority. And, with potentially profound implications, there is a 5-vote majority holding that the data underlying expert opinion testimony is substantive evidence – admitted, that is, for the truth of the matter – and not mere hearsay. Why “profound”? Don’t take our word for it; here’s Jeffrey Fisher, along with Richard Friedman, the leading expert in this area:

This conclusion is the most important aspect of Williams.  Before the Court’s decision, numerous state and federal courts had held that the prosecution could introduce testimonial statements not only through forensic experts, but also through mental health experts, “gang experts,” and other experts.  …  The Confrontation Clause now prohibits this practice.

(He goes on to say that Thomas’ concurrence “will control future cases involving forensic evidence,” because it is “the narrowest in terms of assessing whether forensic reports are testimonial.” Thus, Fisher assesses, “statements made as part of a lab’s internal work product or in a subsidiary report used to generate a final incriminating report will generally” be regarded as non-testimonial.) Friedman himself, it should be noted, seems to have a different take (not easily reduced to summary but in a comment to his own post, he says that Thomas’ concurrence isn’t narrower, “it’s just different”).

Consistent with the practice (seemingly) abrogated by the Williams majority, Wisconsin has long allowed experts to “rely on facts or data in forming an opinion that are not admissible in evidence if they are of a type reasonably relied on by experts in the field,” subject to qualifications that needn’t be spelled out here, State v. Mark, 2008 WI App 44, ¶35, 308 Wis. 2d 191, 747 N.W.2d 727. Whether that remains incontestable is now subject to doubt.

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