11/28/2011

By Lauren Britsch, J.D. Candidate

The Supreme Court will soon here argument in Williams v. Illinois, the next in a recent line of cases considering the Confrontation Clause. The Court over the past few years has overturned a number of convictions for violations of the Confrontation Clause of the Sixth Amendment,[1] which guarantees the right of a criminal defendant to confront the witnesses against him or her. However, it is not clear whether this trend of applying the Clause in favor of defendants will continue with Williams.

Williams was convicted of aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery in Illinois state court. At trial, a police forensic analyst testified that Williams’ DNA matched semen recovered from the victim. The defense moved to strike the DNA evidence as a violation of the Confrontation Clause of the Sixth Amendment. The trial court denied the motion. Williams appealed the denial, claiming that his rights were violated because the police analyst’s testimony relied upon a report by another analyst who was not testifying. The appellate court and the Illinois Supreme Court both affirmed the trial court’s denial of Williams’ motion to strike the evidence. The Illinois Supreme Court found that the analyst’s testimony was not hearsay because it was admitted to show the basis for the analyst’s expert opinion, not to demonstrate the truth of the matter asserted. The analyst’s opinion, not the report, was the evidence, especially since the report was not even entered into evidence.[2]

The foundation of the Court’s modern-day Confrontation Clause jurisprudence is Crawford v. Washington.[3]The decision transformed the standard for admissibility of unconfronted testimony, which was previously subject to a more liberal test requiring only indicia of reliability. At its core, Crawford held that testimonial evidence may only be admitted where the witness is unavailable and where the defendant had a prior opportunity to cross-examine the witness.[4] The Court left open the issue of what exactly could be encompassed under testimonial evidence, however, and the issue of whether forensic evidence and testimony by analysts about that evidence should be considered testimonial evidence subject to the holding of Crawford has confronted courts since the decision.

In Melendez-Diaz v. Washington,[5] the Court applied its holding in Crawford to laboratory reports demonstrating that material seized by police and connected to the defendant was cocaine. The laboratory reports were considered affidavits, prepared specifically for use as evidence at trial; therefore, they fell withinCrawford and were subject to the constraints of the Confrontation Clause. More recently, in Bullcoming v. New Mexico,[6] the Court considered a case in which the defendant was charged with driving while intoxicated and the principal evidence was a forensic report certifying the defendant’s blood alcohol level. The analyst who testified was familiar with the testing procedures used but had not been involved in the actual testing of the defendant’s blood.  The Court reaffirmed that “[a] document created solely for an ‘evidentiary purpose,’ . . . made in aid of a police investigation, ranks as testimonial.”[7] The Court held that the blood alcohol report introduced through the testimony of an analyst who was not involved in the test violated the defendant’s Sixth Amendment rights because the defendant has the right “to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”[8]

In Williams, the question before the Court is whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause. This scenario seems to fall within the line of cases beginning with Crawford and addressing forensic evidence, and based on the Court’s prior decisions, the Court could find a violation like it did in other cases where lab reports were admitted and the certifying analyst did not testify.

However, Justice Sotomayor’s concurrence in Bullcoming states that the type of case presented by Williams is distinct from the issue considered in Bullcoming, indicating that perhaps this case would come out differently under Crawford. Specifically, she notes that Bullcoming was “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,”[9] and such a case would present a different question. This is basically the question presented byWilliams. The Illinois Supreme Court found that the testimony was the analyst’s opinion, and the report itself was not entered into evidence. These factors may lead the Court may consider this testimonial evidence differently than the previous testimonial evidence it ruled inadmissible.

Despite the distinction made by Justice Sotomayor, the Court may still be unwilling to permit this escape valve for testimonial evidence. The Court has taken a hard line with respect to the Confrontation Clause and has generally strengthened its requirements. When presented in the past with the argument that the “necessities of trial and the adversary process” require a relaxation of the Confrontation Clause when it comes to forensic evidence, the Court emphasized that “[t]he Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”[10]

The Supreme Court will hear oral argument in Williams v. Illinois on December 6, 2011.