Argument preview: Closer to the margins of the Confrontation Clause?
on Dec 5, 2011 at 3:42 pm
Tomorrow, the Justices will hear argument in Williams v. Illinois, the next in the line of cases involving the Court’s more defendant-friendly interpretation of the Confrontation Clause. The question is whether the Confrontation Clause is violated if an expert testifies about the results of testing conducted by a non-testifying third party, if the report itself is not introduced at trial.
Here, an expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted. The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.
Petitioner Sandy Williams argues that the Confrontation Clause guarantees a defendant the right to cross-examine the analyst who conducted the DNA test, arguing that the substance of the test is ultimately being admitted for its truth through the expert. Indeed, the expert has no personal knowledge of these facts, which are derived from the analyst’s report. The petitioner raises the specter that this use of experts will permit prosecutors to conduct an “end run” around the Confrontation Clause.
The state argues that the Confrontation Clause guarantees the defendant the right to confront an adverse witness – here, the testifying expert. As a formal matter, only the expert’s opinions are being introduced for their truth; statements regarding the results of the underlying DNA test, by contrast, only served as indicia of the weight of the expert’s testimony. Because the report itself was not admitted, there is no right to confront the report’s author. The state raises the specter that the defendant’s position would radically undermine the use in criminal prosecutions of expert testimony, which regularly relies on information collected and analyzed by the parties.
In last Term’s Bullcoming v. New Mexico, the Court held that the Confrontation Clause prohibits the introduction of a laboratory report with “testimonial” elements for its truth (i.e., more than just a machine-generated number), without making available an analyst who participated in creating the report. But the Court reserved the question in Williams, in which the report itself was not introduced for its truth. Justice Sotomayor in particular wrote in her separate concurrence that “this is 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,” which she said would raise “a different question.”
One could say with a fair degree of confidence that the five Justices who started the revolution in the Court’s Confrontation Clause jurisprudence in Crawford v. Washington in 2004 and then adhered to their strong view in Melendez-Diaz v. Massachusetts in 2009 would rule for Williams here. As a practical matter, it is hard to say that the underlying DNA report is not being used for its truth. But since then, two Justices in the majority – Justices Souter and Stevens – have been replaced by Justices Sotomayor and Justice Kagan. Although the latter two Justices joined the Bullcoming majority, they may have a lessened commitment to a robust application of the Confrontation Clause. Justice Sotomayor’s concurrence in Bullcoming in particular signals that these facts may approach or pass the end of the line to which five Justices are willing to extend the Confrontation Clause.