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Supreme Court Creates Confusion with Recent Confrontation Clause Ruling

Written by Professor Ric Simmons, Professor of Law, The Ohio State University: Moritz College of Law

In June, the Supreme Court handed down the much anticipated decision of Williams v. Illinois, 132 S.Ct. 2221 (2012). The decision was meant to clarify how the Crawford doctrine applies to expert testimony.  Unfortunately, Williams was nothing short of a jurisprudential disaster, which not only failed to clarify the narrow issue before it, but also called into serious question the Court’s entire Crawford line of cases.

First, a bit of background.  In 2004, the Supreme Court decided Crawford v. Washington, holding that the Confrontation Clause now applied to all “testimonial” hearsay that was offered against a criminal defendant.  541 U.S. 36 (2004).  If the hearsay was found to be testimonial, a prosecutor could not admit it unless the declarant was unavailable and the defendant had a prior opportunity to cross-examine the declarant.  Although a precise definition of “testimonial” was not given, it appeared that a statement was testimonial if the declarant who made the statement reasonably believed that the statement would be used at a later trial.

In deciding Crawford, the Supreme Court overruled decades of precedent in which the primary question for courts to determine was whether the hearsay was “reliable.”  Justice Scalia, in his majority opinion, famously derided the old Confrontation Clause cases, arguing that the Confrontation Clause was a procedural right, not a substantive right, and so “[d]ispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” Id. at 62.

Over the next eight years, the Supreme Court had to work out a number of details regarding the Crawford test—most specifically, honing the definition of the term “testimonial.”   For example, in two cases the Court held that a lab report confirming the presence of cocaine or the blood-alcohol level of a defendant was testimonial, since it was prepared by law enforcement technicians who were fully aware that the results were going to be used in an upcoming trial. Bullcoming v. New Mexico, 564 U.S. ___ (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

But there was an inevitable collision on the horizon.  Rule 703, which governs the use of expert testimony, allows an expert to rely on out-of-court statements to reach her conclusions, as long as experts in that field “reasonably rely on those kinds of facts or data in forming an opinion on the subject.” Fed. R. Evid. 703. This allows, for example, a medical doctor to base her conclusions in part on what she has been told by nurses or other doctors, just as doctors would do in the real world when making a diagnosis or a decision about treatment.  But what if these reasonable, routinely-relied-upon statements were also testimonial?  A prosecutor who was barred from admitting testimonial statements could easily get around the Crawford rule by admitting an expert opinion based on those testimonial statements.

This was the question presented by Williams, in which the prosecutors sought to admit the report of a private company’s DNA expert in a rape case without calling the individual who prepared the report.  Instead, the prosecutor called a different DNA expert, one who worked for the government, who testified that she reasonably relied on the private company’s DNA report in determining that the defendant’s DNA matched those of the rapist.

Under the Supreme Court’s precedent, it seemed obvious that the DNA report was testimonial—it was created by a declarant who knew it was going to be used in a criminal trial.  In this sense, the DNA report was no different from the lab reports in the Court’s previous cases.  If the Court had followed this precedent, it could have ruled in one of two ways:

1.  It could have limited the use of expert testimony in criminal cases, thus in effect striking down part of Rule 703.  This holding would mean that when a prosecutor calls an expert witness, the expert could testify to conclusions only if the facts that supported that conclusion were either: a) personally observed by the expert; b) testified to by another witness; or c) not prepared with an eye towards litigation.  This decision would have hampered prosecutors somewhat in their presentation of expert testimony, but the effect would not have been disastrous.

2.   Conversely, the Court could have said that although the DNA report was testimonial, the expert was still allowed to rely on it in reaching her conclusions, since this was not a hearsay use of the information—the information was not being offered for the truth of the matter asserted, only to support an expert’s opinion.  The Court has already held that evidence which is not hearsay does not violate the confrontation clause. Tennessee v. Street, 471 U.S. 409, 413 (1985). And Rule 703 already states that underlying evidence can be admitted—even if it is hearsay—as long as the jury is instructed to only use the evidence to evaluate the expert’s opinion and not for the truth of the matter asserted.

Unfortunately, the Williams Court did neither of these two things.  Instead, they issued a fractured opinion that calls into question the reasoning of the entire Crawford line of cases.  On the narrow issue before it, five Justices concluded that the DNA report was not testimonial, but they rested their decision on two different grounds.  A plurality of four Justices offered a new definition of testimonial, stating that evidence is testimonial only when it has “the primary purpose of accusing a targeted individual of engaging in criminal conduct.” Williams, 132 S. Ct. at 2242. Using this definition, the plurality concluded that the DNA profile generated from the rape swab was not testimonial, because the defendant was not a suspect at the time the DNA report was concluded (indeed, the fact that the DNA report matched the defendant’s DNA profile was what made the defendant a suspect).

Justice Thomas provided the fifth vote for this decision, but he rejected the plurality’s standard.  Instead, Justice Thomas followed yet another definition of “testimonial,” one that he has followed in the past, but that no other member of the Court has adopted.  Under Thomas’s definition, a piece of evidence is testimonial only if it is “formalized,” such as testimony in a deposition, notarized affidavits, or documents in which the declarant formally attests to the truth and accuracy of the contents. Id. at 2260. The DNA report in Williams was a bare report that “certifie[d] nothing,” and therefore was not testimonial.  Id. (citation omitted).

The four dissenters applied the existing definition of testimonial from Crawford and its progeny: that evidence is testimonial if it was created “under circumstances which would lead an objective witness reasonably to believe that [it] would be available for use at a later trial.” Id. at 2266. Using this standard, the four dissenters concluded that the DNA report in Williams was testimonial and should have been barred.

This tension between Rule 703 and the Confrontation Clause illustrates the difference between reliability and cross-examination.  Rule 703 rests heavily on reliability: the expert must testify that other experts reasonably rely on the type of evidence supporting her opinion, and the judge must agree that the reliance is reasonable.  But Crawford shifted the focus of the Confrontation Clause from substantive reliability to the procedural right of cross-examination.

Rather than resolving the conflict, the Williams case has only increased the confusion.  The Williams plurality held that the DNA report was non-testimonial partly because they believed the report was reliable.  Since the DNA report was prepared without targeting a specific individual, the plurality decided that the evidence was reliable, noting that “reliability is a salient characteristic of a statement that falls outside the reach of the Confrontation Clause.” Id. at 2243 (citations omitted). This emphasis on whether evidence is reliable implies that at least four Justices are willing to go back to the pre-Crawford standard of using reliability as the guide to whether evidence violates the Confrontation Clause.   Meanwhile, with the Court divided evenly on this issue, the controlling vote on any cases involving expert testimony belongs to Justice Thomas—who will decide the case based on a test that none of the other Justices agree with.

There is no easy way out of this doctrinal confusion.  All that we can hope is that within the next few years the Court takes another Confrontation Clause case and can settle on a test that a majority of the Court will sign on to.  In the meantime, the Court has left lower Courts—and practitioners—to deal with the chaos that it created.

Written by Professor Ric Simmons

Professor Simmons joined the Moritz Law faculty in 2003. He is a graduate of Columbia Law School, where he was a Stone Scholar and a senior editor of the Columbia Law Review.

Following law school, he clerked for the Honorable Laughlin E. Waters of the Central District of California.

Professor Simmons served for four years as an assistant district attorney for New York County, and was an acting assistant professor at New York University School of Law from June 2000 through June 2003.

Professor Simmons is also the creator and editor of the web site chooseyourjudges.org, which assists voters in choosing candidates in judicial elections. The web site allows voters to take a quiz to determine their preferences for the type of judge they want, and then provides a recommendation based on those preferences. The web site also contains commentary about the judicial election process, and a blog with current news regarding judicial election campaigns.

He teaches Evidence, Criminal Law, and the Prosecution Practicum.

For more information on Williams v. Illinois click the links below:
Williams v. Illinois Opinion
Professor Ric Simmons’s Blog Post in PDF
Adrienne Chin-Perez’s Blog Post in PDF
SCOTUS Blog Entry
Professor Douglas Berman’s Blog Entry on Williams v. Illinois