By: Larry W. Zukerman, Esq. and Mark M. Jablonski, Esq.
The Constitution guarantees anybody accused of a crime the opportunity to confront and question their accusers. The U.S. Supreme Court recently decided a case that could narrow that right of confrontation in certain circumstances, a decision that could affect the lives of countless criminal defendants.
The Sixth Amendment’s Confrontation Clause provides that in all criminal prosecutions the accused has “the right . . . to be confronted with the witnesses against him”. In Crawford v. Washington (2004), 541 U. S. 36, the United States Supreme Court held that the prosecution may not admit “testimonial statements of a witness who [does] not appear at trial unless he [is] unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination.” 541 U.S. at 53-54. There was a caveat, however: the Crawford Court noted that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” Recently the Supreme Court has made this the proverbial exception that may just swallow the rule.
In Williams v. Illinois, 564 U.S. ___ (2012), a “fractured” Supreme Court has seemingly retreated from the progeny of Crawford by holding that out-of-court statements related by an expert witness solely for the purpose of explaining the assumptions upon which the expert based her opinion did not violate the Confrontation Clause. In so holding, the Court arguably permitted that which they prohibited in Bullcoming, i.e., admission of a laboratory report’s conclusion through the “backdoor” testimony of a “surrogate” witness who did not perform the testing.
In so holding, the Supreme Court has muddied the Confrontational Clause waters that just a few short years ago appeared crystal clear. A few years after its holding in Crawford, the Supreme Court extended the Crawford rule to forensic reports in Melendez-Diaz v. Massachusetts, 577 U.S. 305 (2009). In Melendez-Diaz, the Supreme Court held that forensic laboratory test “affidavits” are “testimonial” statements and, accordingly, the analysts are “witnesses” for purposes of the Sixth Amendment Confrontation Clause. Thus laboratory test reports are not admissible “without confrontation” of the analysts who authored them. The defense bar rightfully heralded this decision as another major Confrontation Clause victory.
The Supreme Court followed the reasoning of that decision in 2011, when it held in Bullcoming v. New Mexico, 564 U.S. ___ (2011) that the prosecution could not introduce the results of a defendant’s blood alcohol test result through the testimony of a “surrogate” witness, i.e. a laboratory technician who worked at the laboratory but did not actually perform or observe the test, in place of the analyst who actually produced the report. In so holding, the Court rejected the state’s argument that such a witness satisfied the Confrontation Clause, holding that such “surrogate testimony” deprives the defendant of his confrontation rights. Following the reasoning of Melendez-Diaz, the Court concluded that “[t]he accused’s right is to be confronted with” the actual laboratory analyst, unless he is “unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.” 564 U.S. ___, (slip opinion at 2).
But in Williams v. Illinois, 567 U.S. ___ (2012), a plurality of the Court has significantly weakened these recent Confrontation Clause decisions. In Williams, a trial court judge convicted Williams of rape following a bench trial. During the trial, the state called a DNA expert who testified that a DNA profile – allegedly from a vaginal swab taken from a young woman after she was raped – produced by an outside lab, Cellmark, matched the defendant. This DNA expert did not analyze the DNA profile she testified about, and may have never even stepped foot into Cellmark’s facilities. Nevertheless, Justice Alito, writing for the plurality, found that such testimony did not violate Williams’ right of confrontation.
In so holding, the Supreme Court framed the questions to be addressed as follows: (1) “. . . does Crawford bar an expert from addressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify?”; and (2) “. . . whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reliance on older, less reliable forms of proof.”
In holding that the admission of the expert’s testimony did not violate Williams’ Sixth Amendment rights, the Supreme Court identified two “independent” bases: (1) that the Confrontation Clause has no application to “out-of-court statements that are not offered to prove the truth of the matter asserted” and such statements that are related by an 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”; and (2) that even if the Cellmark report were introduced, there would be no violation of the Confrontation Clause because the report “was not inherently inculpatory”, but rather was generated not for the purpose of obtaining evidence against the defendant, but for the purpose of “finding a rapist who was on the loose”.
With respect to the first basis identified above, the Supreme Court rationalized that an expert witness has, historically, been permitted to testify as to underlying facts assumed to be true by the expert in formulating the expert’s opinion. The Court then held that such underlying facts are not offered to “prove the truth of the matter asserted”, rather testimony as to such underlying facts is offered merely to “explain the assumptions on which that opinion rests” and “are not offered for their truth and thus fall outside the scope of the Confrontation Clause”.
The plurality placed great importance on the fact that the actual, physical report produced by Cellmark was not introduced into evidence. Instead, the state’s DNA expert testified that the profile created by Cellmark matched a profile produced by the state crime lab. The plurality reasoned that because the rules of evidence allow an expert to base an opinion on facts that are “made known to the expert at or before the hearing,” the DNA expert in this case was permitted to give her opinion that the two samples matched, implicating the defendant. For this reason, her testimony did “not constitute admissible evidence of” the Cellmark report, and therefore the creator of the report was not required to testify. Williams, 567 U.S. ___, (slip opinion at 2).
According to the plurality, the expert did not testify about the contents of the Cellmark report to show that the results of the report were accurate, but only to show that the profile produced by Cellmark matched the profile produced by the state crime lab. Unfortunately, this circular logic poses significant problems for defendants. Writing for the dissent, Justice Kagan outlines the problems with the plurality’s reasoning:
To determine the validity of the witness’s conclusion, the factfinder must assess the truth of the out-of-court statement on which it relies. That is why the principal modern treatise on evidence variously calls the idea that such “basis evidence” comes in not for its truth, but only to help the factfinder evaluate an expert’s opinion “very weak,” “factually implausible,” “nonsense,” and “sheer fiction.” D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence §4.10.1, pp. 196–197 (2d ed. 2011); id., §4.11.6, at 24 (Supp. 2012). “One can sympathize,” notes that treatise, “with a court’s desire to permit the disclosure of basis evidence that is quite probably reliable, such as a routine analysis of a drug, but to pretend that it is not being introduced for the truth of its contents strains credibility.” Id., §4.10.1, at 198 (2d ed. 2011); see also, e.g., People v. Goldstein, 6 N. Y. 3d 119, 128, 843 N. E. 2d 727, 732–733 (2005) (“The distinction between a statement offered for its truth and a statement offered to shed light on an expert’s opinion is not meaningful”). . . . [A]dmission 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.
Williams, (slip opinion of Kagan dissent at 10, emphasis added). According to Justice Kagan, of course the validity of the DNA profile Cellmark produced is at issue. The problem the plurality approach poses to confrontation rights is as obvious as it is grave: If the state wants the factfinder to consider a forensic report, but is not confident in the testimony of the report’s preparer, they need only have some outside expert testify to an opinion based upon the conclusions of the report. So long as the state can plausibly argue that the outside expert’s testimony is not offered to prove the truth of the report’s analysis, a defendant may be denied his or her rights under the Confrontation Clause.
The plurality’s second basis for allowing the DNA expert’s testimony, that the Cellmark report was not prepared for the primary purpose of accusing a targeted individual, seemingly conjures a test out of whole cloth. As aptly stated by Justice Kagan in her dissent: “where that test comes from is anyone’s guess.” Williams, (slip opinion of Kagan dissent at 18). Both Justice Kagan and Justice Thomas note that it “derives neither from the text nor from the history of the Confrontation Clause.” Id. The previous standard was whether or not a statement was made “for the purpose of providing evidence,” which the Cellmark report most certainly was. Id., 18-19. It is hard to buy the plurality’s argument that the report was created “for the purpose of finding a rapist who was on the loose” when the police did not send the swabs to Cellmark until nine months after the alleged rape, and did not receive the results for another four months. Id. at 20.
The plurality offered a further bizarre justification for its holding that the DNA report was not a testimonial statement: the Cellmark report “profile” was “not inherently inculpatory”. In reaching this conclusion, the plurality reached new levels of “circular logic” by stating:
On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today.
In his concurrence, Justice Thomas argued that the Cellmark report was not testimonial because it is “neither a sworn nor a certified declaration of fact.” Williams, (slip opinion of Thomas concurring opinion at 9). But this same rationale was explicitly rejected in Melendez-Diaz, because if the Clause applied only to sworn reports, the “‘right to confrontation would be easily erasable’” – next time, the laboratory could file the selfsame report without the oath.” Wiliams, (slip opinion of Kagan dissent at 23). The only difference between the Cellmark report and the BAC report in Bullcoming is that the former was not labeled a “certificate,” a difference that “is not of constitutional dimension.” Id., at 24.
The plurality is confident that their “conclusion will not open the door for the kind of abuses suggested by some of petitioner’s amici and the dissent.” They list four “safeguards” that they claim will prevent such abuses:
First, trial courts can screen out experts who would act as mere conduits for hearsay by strictly enforcing the requirement that experts display some genuine “scientific, technical, or other specialized knowledge [that] will help the trier of fact to understand the evidence or to determine a fact in issue.” Second, experts are generally precluded from disclosing inadmissible evidence to a jury. Third, if such evidence is disclosed, the trial judges may and, under most circumstances, must, instruct the jury that out-of-court statements cannot be accepted for their truth, and that an expert’s opinion is only as good as the independent evidence that establishes its underlying premises. And fourth, if the prosecution cannot muster any independent admissible evidence to prove the foundational facts that are essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be given any weight by the trier of fact.
Williams, (slip opinion at 27, internal citations omitted). Ironically, the outside expert’s testimony held to not violate Williams’ Sixth Amendment rights would have violated, at a minimum, the second and fourth of the above-listed “safeguards” if the trial at issue in Williams had been a jury trial.
What are we to make of the Williams decision in light of Crawford and its progeny? Can Williams be reconciled with Bullcoming and Melendez-Diaz? Unfortunately, the Williams decision raises many more questions than it answers. It is important to remember the distinction awkwardly carved out by the plurality between forensic or other laboratory reports offered for the purpose of proving the truth of the matter asserted, as in Bullcoming and Melendez-Diaz, and forensic report conclusions assumed by an expert to reach an expert conclusion. The dissenting justices write that the plurality “have left significant confusion in their wake,” and that “no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority.” While there is bound to be some uncertainty regarding confrontation rights after Williams, it is our job as defense lawyers to protect our client’s rights under the Confrontation Clause to the fullest extent. As the dissent notes, there is often a very fine line between offering testimony to prove the accuracy of the report in question, and offering testimony to show that one report matches another. Defense counsel must examine each scenario carefully and make the proper objections. Our task going forward is to ensure that trial and appellate courts do not allow Williams to “open the door for the kind of abuses” the dissent warns of.
 In his dissent, Justice Kagan refers to the ruling as a “fractured decision”, due to the fact that the 5 to 4 decision is comprised of a “plurality” opinion authored by Justice Alito, joined by Chief Justice Roberts, Justice Kenney and Justice Breyer. Justice Breyer wrote a concurring opinion. Justice Thomas wrote a concurring opinion, in which he concurred with the ultimate result, based on a different rationale. Justices Kagan, Scalia, Ginsburg, and Sotomayor dissented.
 The Supreme Court did not rule on the constitutionality of so-called “notice and demand” statutes, which require defendants to place the state on notice demanding the testimony of laboratory analysts.
 Although Justice Thomas concurred with the plurality, he did so on other grounds, contending that the forensic report was not testimonial based on a different theory.
 Although the plurality asserts that “[w]e do not suggest that the Confrontation Clause applies differently depending on the identity of the factfinder”, the plurality does admit that “[t]he dissent’s argument would have force if petitioner had elected to have a jury trial”. Thus, the plurality acknowledges that there is a danger that a jury would use the expert’s our-of-court foundational testimony as proof of the matter asserted, rather than just as a basis for the expert’s opinion, but concludes that “the identity of the factfinder makes a big difference in evaluating the likelihood that the factfinder mistakenly based its decision on inadmissible evidence.” Williams, 567 U.S. _____ , at footnote 4.