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The Confrontation Clause — again, and again

Ten years ago, the Supreme Court launched a constitutional revolution:  it changed, in a dramatic way, the meaning of the Sixth Amendment’s promise that an individual on trial for a crime must be able to confront the witnesses who will try to help prosecutors get a guilty verdict.  Although the Court has tried since then — repeatedly — to say just what it meant, the scope of that right remains quite a mystery.

Pleas for the Court to reopen the issue are among the most common requests that show up on its docket, week after week.  The Justices will shortly turn to a group of those pleas, perhaps as early as a week from now.  They will have almost a dozen cases to choose from, with widely varying scenarios — a stack that built up almost by coincidence.  It seems highly likely that the Court will opt to take up the issue anew.

What the Court said a decade ago, in Crawford v. Washington, was this:  if a witness for the prosecution does not show up at the trial, a statement which that individual had made earlier that could aid the prosecution cannot be used at the trial.  The statement, it said, had to qualify as “testimonial” and, if it was, would be kept out of the trial unless the accused’s lawyer had had a prior chance to challenge it by cross-examination — an unlikely occurrence in most cases.

In reaching that result, the Court overturned a quarter-century-old ruling that a statement given previously by a now-unavailable witness could be used at the trial as evidence of guilt, so long as the statement was “reliable.”  That, the Court said in the Crawford ruling, came nowhere near meeting the need for confrontation.

What has kept the Court busy with the issue since then is defining just what kinds of testimony or documents are out of bounds constitutionally.  Here are a few of the more significant rulings that have emerged since 2004 on that point:

**  In 2009, the Court ruled that Crawford bars a sworn statement about the results of a crime lab test, created solely to help prove guilt, unless prosecutors put on a live witness to show that the statement was true.  (Melendez-Diaz v. Massachusetts)

** In 2011, it said that Crawford bars testimony about a crime lab report if the technician or chemist who did the test and wrote the report is not available, but prosecutors want to put on another technician to discuss the report.  This, the decision said, is forbidden “surrogate testimony.” (Bullcoming v. New Mexico)

** In 2012, the Court labored to reach a majority, but could only achieve a four-one-four split on testimony during trial about a DNA report prepared  by a lab analyst who did not appear.  What probably functions as the deciding result in that case (Williams v. Illinois) was what four Justices said:  that prosecutors could call to the stand a DNA expert who would provide that expert’s own opinion about what a lab report had said and meant.

The Williams ruling, uncertain as it was, clouded the progress the Court had been making toward clarifying the scope of the confrontation right, so much so that one attorney has recently told the Justices in one of the new cases: “Put simply, there is chaos in the lower courts.”

The Justices’ clerks have been going over a stack of new cases, to decide which, if any, they want to recommend for review at the Court’s next Term; it is too late to take up any new case this Term.  According to entries on the Court’s docket, eleven of the cases will be considered by the Justices on May 15.

Each of those cases focuses on crime lab reports, whether those reports can be used at the trial, who may be called to the stand to discuss the conclusions the reports drew, and what those “surrogate” witnesses may actually say on the stand.

The lab reports at issue range from autopsy reports in murder cases (to determine the cause of death) to blood tests on individuals suspected of drunk driving, lab analyses of whether a substance is an illegal drug, and tests on DNA evidence gathered at the crime scene or from a crime victim.

Some of the cases focus on whether such a forensic report is “testimonial” at all.  If a lab report is not testimonial, the report itself can be used at trial as evidence of crime.  If it is testimonial, it generally can’t be used at trial unless the lab technician who actually did the test and compiled the report is available and takes the stand.  That much seems firmly established as the law under the Confrontation Clause.

But if the report is kept out of the trial because the technician who was directly involved does not appear, can someone else stand in for that person and talk about the report in any way?  That is the issue that led most recently to the Court’s Williams decision, and it is the central feature of the new cases.

Among those stand-in witnesses were lab supervisors allowed either to discuss the report or to give their own “expert opinion” on what it showed, co-workers in the lab who commented on the report,  medical examiners who reviewed and interpreted the report, and a police officer trained in forensic chemistry who analyzed the report for the jury.

In the cases now ready for the Court, the lab expert who did the testing could not take the stand because of maternity, retirement, or a move to another state, but prosecutors were able to call “surrogates” in each case.  Occasionally, prosecutors did not even attempt to get the lab expert to the stand, but simply put on a substitute, on the theory that the substitute was only providing an “independent expert opinion.”

Each of the most recent cases raises a Confrontation Clause issue, but some of them also ask the Court to decide whether, if that clause has been violated, the violation can be excused as “harmless error.”

The cases involve a wide variety of crimes: illegal drugs (Turner v. United States and Maxwell v. United States, both from Wisconsin, Brewington v. North Carolina, and Ortiz-Zape v. North Carolina); murders (Alger v. CaliforniaEdwards v. CaliforniaGalloway v. Mississippi; and James v. United States (involving a killing in Guyana with a New York connection)); child sexual assault (Walker v. Wisconsin); and drunk driving (Yohe v. Pennsylvania and Marshall v. Colorado).

The Court, as usual, has discretion to choose any of these cases for review, or to deny all of them.  If the Court does accept one or more, most of the others would likely be held until a decision emerges.

Recommended Citation: Lyle Denniston, The Confrontation Clause — again, and again, SCOTUSblog (May. 9, 2014, 2:24 PM),