Confrontation Clause Debacle: Supreme Court Muddies the Water by Ruling that Report on Which Expert Relied Need Not Be Admitted or Subject to Cross-Examination
One of the few bright spots in the Supreme Court's criminal law cases over the past few years has been the resurgence in emphasis on the protections afforded by the Sixth Amendment's Confrontation Clause. However, yesterday in a badly fractured 5-4 decision, the High Court took a step backwards, or maybe even sideways. The case is Williams v. Illinois.
Recall that a couple of years ago the Supreme Court ruled that prosecutors cannot use crime lab reports in criminal trials unless the analysts responsible for creating the report came to court and gave live testimony. Last year that rule was reaffirmed and deepened when the Court said the Confrontation Clause was violated if the prosecutor called a colleague or supervisor of the analyst who did the work.
Into this background came the case of Sandy Williams. A sexual assault occurred in Illinois in 2000, and biological material recovered by the police was sent for analysis to Cellmark Diagnostics Laboratory in Maryland. Williams was later arrested on other charges, and his DNA was sent to the Illinois State Police Crime Lab. Eventually, a prosecution expert witness compared the DNA from the Illinois lab with the material analyzed in the Maryland lab, opining that they came from the same person. The prosecutor never called anyone from the Maryland lab nor even offered the reports authored by the Cellmark Diagnostics analyst.
As noted above, the case is a mess, with 4 Justices signing on to the majority opinion written by Justice Alito. According to Justice Alito, there was no Confrontation Clause problem, for two reasons.
First, Justice Alito said that while the prosecution's expert did discuss the report written by the Cellmark analyst, this discussion was not offered to prove that what was in it was true. Even more troubling is that Justice Alito and three others believe that the report itself was not the sort of evidence to which the confrontation clause applies because it was made “for the purpose of finding a rapist who was on the loose.” In other words, the Constitution's protections seem to be elastic, stretching very thin when a violent or unsolved crime is at issue.
Justice Alito gave a second reason for affirming the conviction. Williams elected to have a bench trial, which seemed important to Justice Alito. The fact that the trial judge was so impressed by the analyst's testimony somehow, for Justice Alito and the other three, showed there was no Confrontation Clause problem.
The crucial fifth vote came from Justice Thomas, who wrote an opinion that no other member of the Court would join. He suggested “a reading of the Confrontation Clause that respects its historically limited application to a narrow class of statements bearing indicia of solemnity.” According to Justice Thomas, the Cellmark report was not within that class.
Justice Kagan issued a spirited dissent joined by three others. First, she noted that the Cellmark analyst who was not called had, in an earlier trial, admitted to having made an egregious mistake when comparing DNA. The confrontation clause, Justice Kagan wrote, is “a mechanism for catching such errors,” demonstrating “the genius of an 18th-century device as applied to 21st-century evidence.” She also noted that under the two recent confrontation clause precedents “this is an open-and-shut case.” But the decision issued on Monday, she said, had turned a clear rule into a murky one. She urged lower courts to continue to follow the recent rulings on crime lab evidence “until a majority of this court reverses or confines those decisions.”