SCOTUS for law students (sponsored by Bloomberg Law): Confronting the Sixth Amendment

Few issues have more deeply divided the Supreme Court in recent years than the meaning of the “Confrontation Clause” of the Sixth Amendment.

At first glance, the Confrontation Clause does not seem very complicated. Standing in the middle of the Sixth Amendment along with the right to counsel, a speedy trial, and an impartial jury, the provision declares, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”

But the eight-word clause has been caught up over the years in complex questions about witness unavailability, opportunity for meaningful cross-examination, hearsay evidence rules and exceptions, and – more recently – testimony related to scientific reports and laboratory evidence.

In one form or another, the controversy centers on evidence from witnesses who do not testify at a criminal trial. The evidence may be in the form of prior statements to police or prosecutors, testimony in other settings, lab reports, or other scientific evidence.

The hearsay rule, for purposes of this discussion, prohibits the use of some evidence offered by a third party to establish the truth of what is said. There are many exceptions to the rule which would permit the use of hearsay evidence in court. But the issue with which the Supreme Court has wrestled repeatedly is how the Confrontation Clause interacts with, and sometimes limits the use of, evidence that although hearsay would be admissible under one of the hearsay exceptions.

Watching the Supreme Court work its way through this morass should be of interest to students studying criminal procedure, evidence, criminal trial advocacy, and other related fields. The resolution of the conflict will have a major impact on criminal trials and on how scientific evidence, including DNA reports, may be used in court in the future. The conflict in the Supreme Court has a direct and immediate impact on the law school curriculum because of the central importance of these issues.

The most recent sparring that has divided the Court began in 2004 in Crawford v. Washington. Crawford itself was not close:  Justice Antonin Scalia, joined by six other Justices from across the Court’s ideological spectrum, expressed total dissatisfaction with the Court’s then-existing approach to the Confrontation Clause.

The Court’s rule at the time dated back over twenty years, to Ohio v. Roberts (1980).  In that case, the Justices had held that statements by a person who is clearly not available to testify at a trial – statements that would generally be considered hearsay – may still be admitted at trial if there are sufficient “indicia of reliability.” Reliability could be shown in two ways:  first, if the statements fall within one of the exceptions to the hearsay rule; or, second, as Justice Harry Blackmun explained, through “a showing of particularized guarantees of trustworthiness.”

Nearly twenty-five years later in Crawford, Justice Scalia outlined for the Court in detail how the standard in Ohio v. Roberts had allowed lower courts to undermine the Confrontation Clause. Moreover, he emphasized, the history of the Confrontation Clause shows that it clearly applies to out-of-court statements, and the opportunity to cross-examine is critical for statements made by individuals who won’t be present to testify at trial. Relying on Roberts, lower courts had frequently admitted out-of-court statements based on a determination of reliability but without the essential guarantee of cross-examination, Justice Scalia said. The Confrontation Clause is not a matter of convenience, he continued; instead, it requires cross-examination to make sure statements are reliable.

Although Justice Scalia never explicitly acknowledged that he was overruling Roberts, then-Chief Justice William Rehnquist, wrote separately (in an opinion joined by Justice Sandra Day O’Connor) in Crawford to complain that the Court’s overruling of Roberts was unjustified and would create uncertainty in criminal trials throughout the country.

In Crawford, the defendant was charged with the assault and attempted murder of another man.  He objected to the prosecution’s use at trial of recorded statements made by his wife – who could not testify against him at trial because of a state marital privilege law – to police during interrogation. But because the defendant and his lawyer had not been given a chance to cross-examine the wife, the Court ruled that the use of her statements violated Crawford’s Sixth Amendment Confrontation Clause rights.

After some additional decisions, fast-forward five years, at which point the Court faced the question of how to handle crime analysis reports at trial when the lab expert who prepared the report does not testify. In Melendez-Diaz v. Massachusetts, Justice Scalia again wrote for a majority of the Court, holding that unless the analyst who prepared the crime lab report was available for cross-examination, the use of the crime lab certificate – which in this case certified that a seized substance was between fourteen and twenty-eight grams of cocaine – violated the defendant’s Confrontation Clause rights.

The seemingly solid majority from Crawford was somewhat splintered by the Court’s 2009 decision in Melendez-Diaz, in which the vote was five to four. Chief Justice Rehnquist and Justice O’Connor had been replaced by Chief Justice John Roberts and Justice Samuel Alito, both of whom dissented. Justice Anthony Kennedy wrote for the dissenting Justices, who were also joined by Justice Stephen Breyer. Both Breyer and Kennedy had been part of the majority in Crawford, but this time Justice Kennedy wrote that Crawford‘s cross-examination requirement applied only to witnesses with direct knowledge of events; it did not extend to analysts of scientific evidence. The dissenters accused the majority of abandoning common sense and ousting ninety years of established practice, under which scientific evidence could be used in court even without testimony from those who prepared it.

Justice Kennedy wrote the dissent again for the same Justices two years later in the five-to-four ruling in Bullcoming v. New Mexico (2011). The driving-while-intoxicated case involved a lab report establishing that the defendant’s blood-alcohol level was above the legal limit. Because the analyst who prepared the report was on unpaid leave, the prosecution instead called another expert, who was familiar with the procedures used but had no direct role in the testing of the defendant’s blood.  In an opinion by Justice Ruth Bader Ginsburg, the Court ruled that the lab report was a form of testimony and that the defendant had a right to confront and cross-examine the analyst who prepared the report, either at the trial or in an earlier hearing.

When the Court is this active in a particular field of law, it is not unusual for the Justices to step back and let the new decisions sink in for a while. Not so with the Confrontation Clause. One year after Bullcoming, the Court was back at it last June with Williams v. Illinois, ninety-two pages spread over four separate opinions in a fractured Court with only a plurality, rather than a majority, ruling. This time the previous dissenters – Justice Alito, joined by the Chief Justice and Justices Kennedy and Breyer – announced the Court’s ruling, which appeared to cut back or limit the rulings in Melendez-Diaz and Bullcoming.

In Williams, the defendant objected to testimony by a police lab expert who was allowed to discuss the comparison of DNA from an outside lab’s report with DNA from an Illinois State Police lab test. The expert was not testifying as to the truth of the outside lab report, in which she played no part, but rather was giving her opinion that the DNA in the two reports matched and that the work of the outside lab was trustworthy.

Writing for the Court, Justice Alito concluded that the testimony did not pose a Confrontation Clause problem. He explained that the witness was only testifying about things she knew – that the outside lab was reputable, that a swab from a sexual assault victim had been sent to the outside lab and later received back by the state police, and that the outside lab’s DNA profile based on the swab matched a DNA profile prepared by the state police from a blood sample in another case. Moreover, evidence like the outside lab report in this case was not the focus of the Confrontation Clause’s protection, because it had been prepared to help catch a rapist rather than to convict a particular individual.

Although Justice Alito’s analysis did not command a majority of the Court, there were nonetheless five votes to uphold Williams’s conviction because Justice Clarence Thomas agreed that the lab analyst’s testimony was permissible. But Justice Thomas cautioned that Justice Alito and the other Justices in the majority were steering the Court in the wrong direction by not requiring confrontation and cross-examination when experts provide detailed information to support their expert opinions.

While joining Justice Alito’s plurality opinion, Justice Breyer wrote a separate opinion in which he pleaded for the Court to rehear the case to set a clear standard for crime lab reports – which, in his view, neither Justice Alito nor Justice Kagan’s dissent addressed.

In her dissent, which was joined by Justices Scalia, Ginsburg, and Sotomayor, Justice Kagan argued that there is a need for confrontation and cross-examination of expert witnesses – including lab report analysts – to assure the reliability of technical evidence. Prior to Williams, she maintained, the rule had been clear, but the splintered Court was leaving “significant confusion” as to the state of the current rule.

So after numerous cases and hundreds of pages of opinions, there is little that is clear about how the Confrontation Clause of the Sixth Amendment applies to out-of-court statements, especially to testimony by lab analysts and other technical experts. The only thing that is certain is that we have not heard the last word from the Supreme Court on this complex and important subject.