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Wisconsin Supreme Court fails to clarify application of the Confrontation Clause to expert testimony

State v. Richard Lavon Deadwiller, 2013 WI 75, affirming a published court of appeals decision; majority opinion by Justice Ziegler; case activity

Witucki, a state crime lab analyst, testified that Richard Deadwiller’s DNA matched a DNA profile derived from semen found on vaginal and cervical swabs collected from two sexual assault victims. (¶¶2, 10). But Witucki did not derive the DNA profile from the semen. Instead, he sent the swabs to Orchid Cellmark, a private lab, for analysis. (¶¶2, 10-11). Cellmark sent a report with the DNA profile to Witucki, who then checked the profile against the state’s DNA databank and turned up a match to Deadwiller. (¶¶2, 12). No one from Cellmark testified at trial, so when Witucki testified that Deadwiller matched the DNA found on the victims, his opinion relied on the profile in Cellmark’s report. (¶12). Applying Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012), the supreme court holds Deadwiller’s confrontation rights were not violated by Witucki’s reliance on the out-of-court statement about the DNA profile in Cellmark’s report, even though Deadwiller had no opportunity to confront the Cellmark analyst who developed the profile.

As noted in our post on the case, Williams v. Illinois upheld, against a Confrontation Clause objection, the admissibility of testimony by a state crime lab analyst that a DNA profile matched produced by a different lab matched the defendant’s profile. But no single rationale for that conclusion garnered a majority of justices: A four-justice plurality (by Justice Alito) articulated two rationales for finding there was no confrontation violation; a single-justice concurrence (by Justice Thomas) rejected both of the plurality’s rationales and found no confrontation violation based on a rationale no other justice joined; and four dissenters rejected all three of the rationales offered by the plurality and concurrence. So how is Williams to be applied?

¶30  “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotations and citations omitted). This rule is applicable only when “at least two rationales for the majority disposition fit or nest into each other like Russian dolls.” Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 33 n.120 (1994). If no theoretical overlap exists between the rationales employed by the plurality and the concurrence, “the only binding aspect of the fragmented decision . . . is its ‘specific result.'” Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222, 234 (3d Cir. 2002) (citation omitted). A fractured opinion mandates a specific result when the parties are in a “substantially identical position.” Id. 

The court concludes the Alito plurality and Thomas concurrence “have no theoretical overlap,” but it applies the result in Williams because “the facts of this case are strikingly similar to the facts in Williams,” therefore putting Deadwiller and Williams into “substantially identical positions.” (¶32). (See also ¶¶21 n.8, 36). And despite the lack of theoretical overlap, the court applies the disparate rationales in the Alito plurality and Thomas concurrence, which “results in the same conclusion as in Williams, a conclusion with which five Justices agree that Witucki’s testimony did not violate Deadwiller’s right to confrontation.” (¶¶32-35). The court says this conclusion is consistent with State v. Barton, 2006 WI App 18, 289 Wis. 2d 206, 709 N.W.2d 93, and State v. Williams, 2002 WI 58, 253 Wis. 2d 99, 644 N.W.2d 919), which rejected Confrontation Clause challenges to expert witnesses who did no independent analysis themselves, but instead based their opinions entirely on the work of the expert who conducted the analysis but was unavailable to testify at trial. (¶¶37-40).

In addition, Deadwiller admitted he had intercourse with the victims; his defense was the sex was consensual. (¶¶2, 6, 13). And this was his defense from the outset, even before the circuit court ruled Witucki could give his opinion based on Cellmark’s work. (¶¶5-6, 42-43). In addition to making the DNA evidence a “side issue” in the case, these facts lead the court to reject his claim that allowing Witucki to testify affected defense strategy and to conclude that even if it was error to allow Witucki to testify based on Cellmark’s work, the error was harmless. (¶¶36, 42-43).

Chief Justice Abrahamson concurs, joined in part by Justice Bradley. She agrees any error was harmless but, like Justice Breyer in his concurrence in Williams, 132 S.Ct. at 2244-2255, she laments the court’s failure to give guidance on the Confrontation Clause issues raised by this case because they are “ubiquitous” in the trial courts. (¶¶47, 66-77). She also concludes Williams is not binding under Marks and criticizes the majority’s analysis for raising unanswered questions about the interpretation of split decisions of the U.S. Supreme Court for decades. (¶¶55, 62-64).

Williams v. Illinois exacerbated the uncertainty about how the Confrontation Clause applies to testimony by an expert witness about the bases for his or her opinion. The decision has been called:

  • “challenging to apply” because “the divergent analyses and conclusions of the plurality and dissent sow confusion as to precisely what limitations the Confrontation Clause may impose” on an expert witness testifying the test results of another, nontestifying expert, United States v. Turner, 709 F.3d 1187, 1189 (7th Cir. 2013);
  • of “uncertain” precedential force because of the lack of a single rationale for the decision, Young v. United States, 63 A.3d 1033, 1042 (D.C. 2013);
  • “a tenuous and highly distinguishable opinion” that does not resolve the extent to which an expert may rely on testimonial hearsay, State v. Kennedy, 735 S.E.2d 905, 922 (W. Va. 2012); and
  • “a bewildering array of opinions in which majority support for admitting the evidence at issue was awkwardly knitted together out of several incompatible doctrinal bases” resulting in “continued anxiety and confusion over the Confrontation Clause as it applies to forensic science evidence,” Jennifer Mnookin and David Kaye, Confronting Science: Expert Evidence and the Confrontation Clause, 2012 The Supreme Court Review ___, ___ (2013) (forthcoming).

The decision in this case clarifies little and raises new uncertainties. The only clarity it provides is that the result in Williams governs when a defendant is in a “substantially identical position” as Williams. It creates uncertainty by making a hash of the rules for interpreting split decisions from the Supreme Court. Following the Marks rule the court concludes–rightly–that there is no theoretical overlap between the Alito plurality and Thomas concurrence, no “narrowest ground” that can be taken as a holding of the Court. (¶32). Applying Marks, that means Williams establishes no binding rule or standard, as the concurrence notes. (¶56). See also U.S. v. Heron, 564 F.3d 879, 884 (7th Cir. 2009). There are, though, some cases (and the court cites one, Berwind) supporting the application of the result of the splintered decision if the facts of the two cases are “substantially identical.” What that test means isn’t explained, as the concurrence points out, nor will it be easy to apply in cases where the facts aren’t so close as Deadwiller’s were to Williams’s.  (¶¶64, 67). Clearly, though, the more distinguishable a case is from the situation of Williams and Deadwiller, the better the argument that it isn’t governed by the result in Williams.

There’s some logic to the “substantially identical” facts approach: Identical cases should be decided identically. But there is no logic at all to the majority’s attempt to use the rationales of Alito’s plurality and Thomas’s concurrence to come up with a “‘a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree.'” (¶31; also ¶33). For this proposition it quotes People v. Dungo, 286 P.3d 442, 455 (Cal. 2012) (Chin, J., concurring). Dungo, in turn, quotes U.S. v. Williams, 435 F.3d 1148, 1157 (9th Cir. 2006), a straight-ahead application of Marks, which Dungo misreads as a license to put together disparate rationales to come up with five votes for a result. Dungo leads the majority astray, for it makes no sense to identify “a legal standard” in the Alito plurality and Thomas concurrence if you’ve already concluded there’s no theoretical overlap between those opinions. You can’t identify a single “legal standard” or “test” or “common denominator” on which five justices agree by cobbling together rationales that don’t overlap; all that gets you is a common result, not a common rationale.

If the court’s Dungo-inspired analysis simply asks how the plurality and concurrence would decide Deadwiller’s case, as the concurrence posits (¶63), then it is just another way of saying the facts of the two cases are “substantially identical.” But to the extent the majority treats the rationales as if they establish actual rules to apply to the facts of any case before it (¶¶33-35), they forget that not a single one of the rationales offered by the Alito plurality or Thomas concurrence was supported by five Justices. Thus, applying the rationales of those opinions as binding rules is nothing more than a sleight-of-hand maneuver that elevates non-majority opinions into legal authority. Ultimately, though, it’s not clear what the majority opinion is doing beyond applying the result of Williams based on Deadwiller’s “substantially identical” factual position. Until the confusion created by this opinion is cleared up, you should argue that substantial factual identity is the governing test for determining whether Williams applies to a particular case .

You should also note that the court elides a central piece of hearsay in its putative application of the first rationale in Alito’s concurrence–that the outside lab report was not offered for the truth of the matter asserted. In particular, Cellmark, not Witucki, created the DNA profile of the semen found on the swabs; Witucki just checked the profile against the DNA database and found a match with Deadwiller. (¶¶2, 5, 11-12). Thus, the accuracy–the truth–of the DNA profile created by Cellmark was crucial in identifying Deadwiller. By basing his opinion on Cellmark’s profile, Witucki’s testimony both assumed and conveyed to the jury the accuracy of the profile. Cellmark’s report therefore effectively included the statement “This is an accurate DNA profile” and offered if for the truth of the matter asserted.

While the majority opinion refers in passing to this aspect of the Cellmark report (¶¶2, 5, 11-12, 32), its analysis of the “not-for-its-truth” rationale completely ignores it. Instead, the court considers only whether Cellmark’s report was used to show the profile was produced from the swabs of the victims. (¶33). Pointing to other evidence establishing chain of custody for the swabs (¶¶9-11), the court says Witucki’s testimony was not offered to prove chain of custody and, voila, there’s no confrontation problem. Pretending that the only salient hearsay in the Cellmark report is about chain of custody makes the confrontation problem look minimal, when in fact it is not.

The Alito plurality also downplayed this aspect of the hearsay in the outside lab report (cf. the Williams dissent, 131 S. Ct. at 2270, and Mnookin and Kaye, at pp. 19-24). It held the expert was not repeating the laboratory’s out-of-court statement for its truth as to the accuracy of the DNA profile it produced, but only explaining the assumptions for her opinion. 132 S.Ct. at 2238. The plurality view did not command a majority, as both Thomas’s concurrence and the four dissenters found the expert’s testimony as to the DNA profile developed by the laboratory was admitted for its truth, thus depriving Williams of his right to confrontation. See id. at 2256-59 (Thomas, J., concurring in the judgment); id. at 2266-70 (Kagan, J., dissenting). If you are litigating a case like this, stressing that the testifying analyst’s opinion assumes the truth and accuracy of the work of the non-testifying analyst may help assure the court confronts the real issue in these cases.

The upshot, then: If your case is “substantially identical” to Williams’s or Deadwiller’s, the result in Williams controls. If you can factually distinguish your case, take your cue from the Williams dissent, 131 S. Ct. at 2265-68, and argue for the application of Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. ___, 131 S.Ct. 2705 (2011), which held that admission of reports of the lab analysis violated the defendant’s right to confrontation. The state will cite Barton to argue Melendez-Diaz and Bullcoming don’t apply because  the non-testifying analyst’s report won’t be admitted. The response is that the confrontation right applies with full force even where the report isn’t admitted because the out-of-court statements will be indirectly recounted by, or their substance is implied by or conveyed through, the testifying witness. United States v. Meises, 645 F.3d 5, 21 (1st Cir. 2011); Ocampo v. Vail, 649 F.3d 1098, 1108-13 (9th Cir. 2011); State v. Swaney, 787 N.W.2d 541, 554 (Minn. 2010). In the meantime, we have to wait for another case to clarify the law. Maybe it will be State v. Michael Griep, 2009AP3073-CR, recently certified to the supreme court, which presents the issue in its starkest form, on facts very different from this case and Williams: One analyst testifying as a surrogate for another because, having done no independent analysis, the testifying analyst relies exclusively on the work product of the absent analyst.

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