Confrontation Clause: When Forensic Reports Are Testimonial Remains Unclear
By Heather Whitney – Edited by Charlie Stiernberg
Williams v. Illinois, No. 10-8505, 2012 WL 2202981 (U.S. June 18, 2012)
In a fractured decision, the Supreme Court held that an expert witness could testify about a DNA test not entered into evidence and performed by a non-testifying analyst without violating the Confrontation Clause. However, with five Justices expressly rejecting the entirety of the plurality’s analysis, no majority agreed on the reasoning underlying the decision. Thus, lower courts continue to lack clear guidance as to when a forensic report is testimonal for Confrontation Clause purposes and, in cases where a forensic report is considered testimonial, which and how many analysts must testify.
Facts and Procedural History:
On February 10, 2000, L.J., a woman in Chicago, was walking home from work when she was forced into a car, robbed, and raped. After her attacker released her, she went to the hospital where doctors took a vaginal swab for a rape kit. A police detective then took the kit, labeled it, and sent it under seal to the Illinois State Police lab. On February 15, 2000, a forensic scientist at the lab received the sealed kit and proceeded to conduct a test that confirmed the presence of semen on the swab. The scientist then resealed the kit and placed it in an evidence freezer. The record shows that on November 28, 2000 the police lab then sent the kit to Cellmark Diagnostics Laboratory for DNA analysis. On April 3, 2001, Cellmark sent a report back to the Illinois State Police lab that was labeled as containing the DNA profile of the man whose semen was found on the vaginal swab.
The report, while signed by two reviewers, was not officially certified for its accuracy. After Cellmark returned the report, Sandra Lambatos, a forensic specialist, conducted a search to determine whether the DNA profile reported by Cellmark matched any of the entries in the state DNA database. She found a match to petitioner based on blood taken from him after an arrest on unrelated charges. After L.J. identified petitioner in a lineup on April 17, 2001, he was indicted for, inter alia, aggravated criminal sexual assault. Petitioner waived his right to a jury and a bench trial commenced.
At the bench trial, the State called Sandra Lambatos as an expert witness. During her testimony, Lambatos was asked and answered three contested questions:
First, whether there was “a computer match generated [between] the male DNA profile found in semen from the vaginal swabs . . . [and the] male DNA profile [stored in the state DNA database]” (emphasis added). Because Lambatos had seen a match between the DNA report she received from Cellmark and petitioner’s DNA found in the database, she said yes.
Second, Lambatos was asked whether she independently “compare[d] the semen that had been identified… from the vaginal swabs… to that male DNA profile [found in the database] that [was from] the blood of [petitioner]” (emphasis added). Here again Lambatos answered in the affirmative.
Finally, the prosecutor asked Lambatos whether, as an expert, it was her opinion that the DNA derived from the semen taken from the vaginal swab was “a match” to petitioner. Again, Lambatos said yes.
Throughout Lambatos’s testimony, the defense objected for lack of foundation and, at the end of her testimony, moved, based on petitioner’s Confrontation Clause rights, to exclude it insofar as she discussed the testing conducted by Cellmark. The prosecution responded that petitioner’s Confrontation Clause rights were satisfied, as Lambatos was testifying that there was a match between the DNA profile Cellmark produced and the DNA profile in the state database. The prosecution further argued that while it was true that Lambatos’s testimony disclosed that the Cellmark report she received was derived from semen found on the vaginal swab, that was “basis evidence.” And, per Illinois Rule of Evidence 703, an expert can disclose the facts on which her opinion is based, even if she is not competent to testify as to those underlying facts.
The trial judge agreed and later found petitioner guilty. The State Court of Appeals affirmed, finding no violation of petitioner’s confrontation rights because the report was not offered into evidence to prove the truth of the matter it asserted. Instead, according to the Court of Appeals, the report was merely offered to provide a basis for Lambatos’s opinion. The Supreme Court of Illinois affirmed, again finding that Lambatos’s reference to the report was done for the limited purpose of explaining the basis for her expert opinion and not for the truth the report asserted (namely, that the DNA profile in the report was derived from the semen taken from L.J.’s vaginal swab). The Supreme Court affirmed.
Confrontation Clause Background:
The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to be confronted with the witnesses against him. Modern Confrontation Clause doctrine began with the 2004 Crawford v. Washington decision. 541 U.S. 36. There, the Court held that the Confrontation Clause prohibits the prosecution from admitting “testimonial statements of a witness who [does] not appear at trial unless he [is] unavailable to testify, and the defendant . . . had a prior opportunity for cross-examination.” Id. at 53–54. While choosing not to fully define “testimonial,” the Court in Crawford found that testimony is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact” and that the “core class” of testimonial evidence includes materials the declarant would reasonably expect to be used prosecutorially. Id. at 51. Later Courts interpreted this to be an objective primary purpose test.
In both Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011), the Court began grappling with the question of how its new primary purpose rule would apply to forensic reports and statements written by laboratory technicians; that is, whether such reports (1) count as “testimonial,” and if so, (2) who exactly would the prosecution need to call as a witness when introducing those reports.
In Melendez-Diaz, the prosecution introduced sworn “certificates of analysis” from a state lab analyst stating that the substance seized from the defendant was cocaine. The certificates were submitted as evidence of what they asserted (that is, that the substance was cocaine) and they were submitted without calling that analyst to testify. In a 5-4 decision, the Court found that the certificates were testimonial evidence and, accordingly, held that their admission violated the defendant’s Sixth Amendment confrontation rights.
In Bullcoming, the prosecution similarly attempted to enter a signed and certified lab report, this time showing that a defendant’s blood-alcohol levels were above legal limits. Unlike in Melendez-Diaz, where no analyst was called, the state did call an analyst to testify to the certification. However, instead of calling the analyst who actually conducted and certified the test, the prosecution called a different analyst who, while familiar with the relevant methods and procedures, had neither participated in nor certified the testing of Bullcoming’s particular sample. In a fractured 5-4 decision, the Court found that, like in Melendez-Diaz, the analyst’s certification was “created specifically to serve as evidence in a criminal proceeding” and, as such, was testimonial under the Confrontation Clause. Bullcoming, 131 S. Ct. at 2709. The Court also found that a surrogate witness (namely, the analyst who did not actually perform the specific testing) did not satisfy the defendant’s confrontation rights. However, while there were five Justices for the judgment, Justice Sotomayor’s partial concurrence made clear that there was no majority for how to determine whether a particular statement counts as testimonial for Confrontation Clause purposes. Justice Sotomayor also explicitly noted that the Bullcoming opinion did not resolve the problem of when a surrogate witness testifies about a report without admitting the report into evidence—the precise question the Court dealt with in Williams v. Illinois.
Reasoning of the Court
Justice Alito, writing for a plurality of the Court (he was joined by Chief Justice Roberts and Justices Kennedy and Breyer), held that the Confrontation Clause was not violated when Lambatos referenced the out-of-court report on which her opinion was based without testifying to its truth. Justice Alito gave two independent bases for his conclusion:
- Out-of-court statements referenced by an expert witness solely for the purpose of explaining the basis for that expert’s opinion are not offered for their truth and, as such, do not trigger the Confrontation Clause.
- The report was not testimonial. Thus, even if the report had been admitted into evidence, there would have been no Confrontation Clause violation.
(1) Not offered for its truth: Justice Alito found that the reference to the vaginal swabs was a fact that Lambatos merely assumed to be true when she opined that there was a DNA match between the report from Cellmark and petitioner’s DNA entry in the state database. As such, Justice Alito found that reference to be a straightforward instance of “basis evidence,” which Rule 703 of both the Illinois and Federal Rules of Evidence permit. Thus, because Crawford only prohibits the introduction of out-of-court statements used to show the truth of the matter asserted, and these statements were introduced to show the basis of the expert’s testimony, Justice Alito found no Confrontation Clause issue. In so holding, Justice Alito distinguished the Cellmark report from the reports in Melendez-Diaz and Bullcoming, in which different forensic reports were held to be introduced for their truth.
In responding to the dissent’s argument that allowing the report to come in as basis evidence without Confrontation Clause protection would allow for prosecutorial abuse, Justice Alito pointed out four non-Confrontation-based safeguards. First, judges can prohibit experts from testifying who are “mere conduits” for hearsay. Second, the rules of evidence already generally preclude experts from disclosing inadmissible evidence to a jury. Third, if inadmissible evidence is disclosed through expert testimony, the judge may instruct the jury not to accept those statements for truth, and remind the jury that the expert’s opinion is only valuable insofar as independent evidence establishes the basis for her opinions. And as a fourth safeguard, if the prosecution cannot provide admissible evidence to prove the facts on which the expert’s opinion lies, the expert’s testimony cannot be given any weight by the trier of fact.
Justice Alito appeared to make the identity of the factfinder significant for Confrontation Clause purposes when he responded to the dissent’s argument that the trier of fact would have taken Lambatos’s answer as substantive evidence by stating that the dissent’s argument “would have force if petitioner had elected to have a jury trial.” Williams, slip op., at 18. However, in a later footnote Justice Alito stated that the identity of the factfinder is not relevant for Confrontation Clause purposes. The dissent found Justice Alito’s footnote unconvincing. Thus, whether the Court would have come to the same holding if Lambatos had testified in a jury trial remains an open question.
(2) Report was not “testimonial”: Justice Alito then moved on to his second theory for why there was no Confrontation Clause issue: the report was not testimonial. In coming to this conclusion, Justice Alito noted that while the Melendez-Diaz and Bullcoming forensic reports were found to be testimonial for Confrontation Clause purposes, the Court in those cases “did not hold that all forensic reports fall into the same category.” Id. at 30. In creating a test to define the outer boundaries of what is testimonial, Justice Alito found that two characteristics were present in all but one post-Crawford case where the court found out-of-court statements to be testimonial. First, they involved out-of-court statements having the primary purpose of accusing a targeted individual (that is, an individual already identified as a suspect) of criminal conduct, and second, they were formalized statements. In the single case to not fit Justice Alito’s test, Hammon v. Indiana, 546 U.S. 1213 (2006) (which was decided with Davis v. Washington, 547 U.S. 813 (2006)), a non-formalized statement violated the Confrontation Clause. In Hammon, the statement at issue was elicited from the defendant’s wife during a police interrogation and thus had the primary purpose of accusing a targeted individual.
Justice Alito found the Cellmark report to not meet the criteria to be testimonial. Unlike the statement in Hammon, the Cellmark report was not created with the primary purpose of accusing a targeted individual (petitioner) but instead to “catch a dangerous rapist who was still at large.” Id. at 31. However, Justice Alito made no comment as to whether the Cellmark report was sufficiently formalized, leaving an open question as to whether or not this second criterion is strictly necessary.
Justice Alito also appeared to deduce a reliability test from Hammon to further support his conclusion that the Cellmark report was non-testimonial. The Hammon Court stated that if the primary purpose of the police officer’s inquiry had not been to target the defendant but to instead “meet an ongoing emergency,” then the wife’s statement would not have fallen within the ambit of the Confrontation Clause. Williams, slip op., at 30-31. Justice Alito found the reason for this “ongoing emergency” exception to be statement reliability. Further, he found some combination of high reliability and ongoing emergency conditions to apply to the Cellmark report. The Cellmark report was reliable because of the testing mechanisms and procedures, and it was conducted in an emergency-like situation because the rapist was still on the loose. Justice Alito found that this situation contrasted with those in both Melendez-Diaz and Bullcoming, where the forensic reports were not created during an ongoing emergency and for which the technicians would know their reports would be incriminating,
Justice Breyer, Concurring: Justice Breyer concurred in full but wrote separately to express his dissatisfaction with both the plurality and dissent’s failure to squarely address the question of how the Confrontation Clause applies to laboratory reports and underlying technical statements written by laboratory technicians. Given the importance of that question and the lack of clarity in the plurality opinion, Justice Breyer set the case for reargument in the hopes of reaching a more generally applicable answer to both questions. But, until such a general answer was possible, he concluded that DNA reports should be treated as presumptively outside the scope of the Confrontation Clause. However, if the defendant could show good reason to doubt the laboratory’s competence or accreditation, or demonstrate a motive to falsify, then the Confrontation Clause would be triggered again. In coming to his conclusion, Justice Breyer saw himself as aligned with the dissents in Melendez-Diaz and Bullcoming, making clear that he viewed the outcome in this case to go against those precedents but in line with established principles of evidence regarding expert basis evidence.
Justice Breyer viewed the dissent as jettisoning “well-established” rules of evidence that permitted basis evidence and, in doing so, failing to provide a workable alternative. Williams, slip op., at 3 (Breyer, J., concurring). More specifically, Justice Breyer believed that the dissent failed to provide a satisfying explanation of both the limits of what would count as testimonial and who exactly would count as the requisite witness (or witnesses) for Confrontation Clause purposes.
Justice Breyer then moved on to his analysis of the Cellmark report itself, finding that it should fall within the business records hearsay exception and, for four reasons, was not “testimonial.” The first reason Justice Breyer gave for the report being non-testimonial was historical: laboratory reports by accredited labs did not embody the “principal evil” the Confrontation Clause was meant to address. Id. at 9. Second, Justice Breyer found significant (much to the chagrin of the dissent) the fact that laboratory testing takes place behind a “veil of ignorance” such as to make mal-motives unlikely. Id. at 12. As the Court had found in the earlier case of Michigan v. Bryant, 131 S. Ct. 1143 (2011), the possibility of fabrication is a factor in determining whether confrontation rights demand the statements be “subject to the crucible of cross-examination.” Id. (quoting Michigan v. Bryant, slip op., at 14). As a third reason for why the report at issue was non-testimonial, Justice Breyer agreed with the plurality that in every post-Crawford case where the Court had found a violation, the statement had had the primary purpose of accusing a targeted individual. As such, they made the declarant adverse and the statement accusatory, both of which implicated the historical concerns the Confrontation Clause was meant to address. And fourth, Justice Breyer speculated that barring these out-of-court statements would actually undermine fact-finding. To wit, he worried that doing so would effectively turn the Confrontation Clause into a statute of limitations for murder by, for example, barring prosecutions in a case in which the medical examiner who conducted the autopsy report dies before trial. He also worried that the dissent’s holding would increase the risk of wrongful convictions, as the additional cost and complexities would lead prosecutors to avoid laboratory tests and instead focus on the even more questionable eyewitness testimony.
Justice Thomas, Concurring in the Judgment: Justice Thomas concurred in judgment, writing separately to both put forth his own view of the proper testimonial test and to make clear that he shared the dissent’s rejection of the plurality’s “flawed analysis.” Williams, slip op., at 1 (Thomas, J., concurring). Unlike the plurality, Justice Thomas found that the Cellmark statement was not testimonial under the Confrontation Clause because it failed to have the requisite “formality and solemnity.” Id. at 11.
Justice Thomas began by rejecting as implausible the plurality’s claim that the out-of-court statements were not admitted for their truth. Because Justice Thomas found that the statements admitted for the truth, he moved back to the threshold question of whether those statements were testimonial.
Here Justice Thomas, as he had already made clear in earlier cases, again found the Confrontation Clause to regulate only statements “bearing indicia of solemnity.” Id. While the report at issue was signed by two reviewers, neither claimed to have performed the DNA testing nor certify to its accuracy, so Justice Thomas found the report to “lack the solemnity” necessary for an out-of-court statement to become testimonial. Id. at 9. In concurring, Justice Thomas distinguished the report from those in Melendez-Diaz and Bullcoming. The Melendez-Diaz report was sworn by the analyst, and the Bullcoming report, though unsworn, was certified by the forensic analyst who conducted the test and affirmed that the test was correct. In responding to the dissent’s suggestion that his focus on solemnity would create an easy path for prosecutors to avoid confrontation rights, Justice Thomas found that the Confrontation Clause would reach bad-faith attempts to evade any formalized process. Justice Thomas also noted that the “price” prosecutors pay for using more informal statements is that the statements are less reliable to the factfinder. Id. at 11.
Justice Thomas then continued his analysis by attacking the plurality’s “primary purpose” test. Among other reasons, he noted that a test that asks whether the out-of-court statement has the primary purpose of accusing a targeted individual of engaging in criminal conduct “lacks any grounding in constitutional text, in history, or in logic.” Id. at 12. He also criticized the plurality’s attempt to characterize the report as at attempt to resolve an ongoing emergency (the rape kit was not sent to Cellmark for analysis until nine months after the rape) instead of what he took to be its primary purpose: producing evidence for an eventual case.
Dissenting Opinion: Justice Kagan, joined by Justices Scalia, Ginsburg, and Sotomayor, dissented. Justice Kagan found this an “open-and-shut” case based on the Crawford–Melendez-Diaz–Bullcoming line of precedent. Williams, slip op., at 2 (Kagan, J., concurring). The state prosecuted in part based on a DNA report from Cellmark and the defendant was not given a chance to question the analyst who produced that evidence. Thus, the defendant was deprived of his confrontation rights.
Justice Kagan began by critiquing the plurality’s first theory that the report was not introduced for its truth, arguing it amounted to a “prosecutorial dodge.” Id. at 3. She then continued by characterizing both the reports in Melendez-Diaz and Bullcoming as indistinguishable from the report at issue in this case. As with those cases, the Cellmark report was created to establish “some fact” in a criminal proceeding. Id. at 5-6. As such, the analyst who generated the report became a witness against the defendant. Thus, the Confrontation Clause required that the defendant be provided an opportunity to cross-examine that analyst.
Justice Kagan continued her criticism of the plurality’s first theory by contrasting the introduction of the Cellmark report to another case where the introduction of an out-of-court statement was clearly of value for reasons other than its truth. In Tennessee v. Street a defendant confessed to murder at a police station. 471 U.S. 409 (1985). At trial, he argued that the confession was a sham—that the police officer had read his alleged accomplice’s confession and simply forced him to repeat it. In order to defend against the defendant’s allegation, the prosecution read the confession the defendant had given. In that case, the out-of-court statement was read not for its truth—that is, not for the validity of the confession itself—but to rebut the allegation of how that confession was elicited, as the defendant’s confession sounded different from that of his accomplice’s, thereby making his allegation of a sham less likely. In contrast, Justice Kagan found that the value of the out-of-court statement in Williams was wholly derived from its truth.
Though Justice Alito claimed in a footnote that the Confrontation Clause applied the same regardless of whether the factfinder was a jury or judge, Justice Kagan disagreed, finding that Justice Alito did in fact make the identity of the factfinder significant for Confrontation Clause purposes. Moreover, Justice Kagan found that distinction to be one the Court had “never before considered relevant.” Id. at 13.
Justice Kagan concluded her criticism of the plurality’s first theory by focusing on the real-world implications of such a view, saying it allowed for the “Constitution’s circumvention” where states could now “sneak . . . in through the back” what the Confrontation Clause would have blocked through the front. Id. at 17.
Justice Kagan then moved on to criticize the plurality’s second theory—that the report was non-testimonial and thus outside the Confrontation Clause’s purview. She began by repeating her view that the report at issue was indistinguishable from the reports in both Melendez-Diaz and Bullcoming, both of which the Court deemed not just testimonial but within its “core class” a few years earlier. Justice Kagan then rejected the plurality’s repeated attempts to create distinctions with those earlier cases. First, she found the suggestion that whether the report was prepared for the primary purpose of accusing an already targeted individual “derive[d] neither from the text nor from the history of the Confrontation Clause.” Id. at 18-19. She also found the plurality’s and Justice Breyer’s emphasis on both the unlikelihood of bad motives in the lab and the reliability of scientific reports to be problematic. First, the main issue was not vendettas, but incompetence and carelessness, and Justice Kagan found those concerns to arise whether or not a particular defendant had been “targeted.” Relatedly, the worry of laboratory mistakes wasn’t simply hypothetical, as she began her dissent with just one example of a laboratory labeling mix-up that was not uncovered until after an analyst gave live testimony. Furthermore, Justice Kagan found the entire discussion of lab report reliability misplaced. The Court’s precedent already held such reports to be testimonial and the Confrontation Clause, not the Court, prescribes the procedure for determining the reliability of such evidence.
As Justice Thomas did in his concurrence, Justice Kagan found the plurality’s attempt to characterize the report as a response to an ongoing emergency a move that “stretch[ed] both [The Court’s] ‘ongoing emergency’ test and the facts of [the] case beyond all recognition.” Id. at 20.
Justice Kagan also found fault with Justice Thomas’s solemnity analysis. In sum, she found the similarities in “form, function, and purpose” between the Cellmark report and those in both Melendez-Diaz and Bullcoming to “dwarf the distinctions”—all were official, signed, and designed to establish facts at a criminal trial. Id. at 23. Any “solemnity” distinctions between them were, according to Justice Kagan, not of constitutional dimension. Similar to her criticism of the plurality, Justice Kagan found Justice Thomas’s solemnity test to “turn the Confrontation Clause into a constitutional geegaw—nice for show, but of little value” as prosecutors could then easily avoid it by introducing sufficiently informal out-of-court statements. Id. at 24.
She concluded by chastising the plurality for trying to limit Melendez-Diaz and Bullcoming at any cost, sacrificing both clarity and precedent-based decision-making. She recommended that until a majority of the Court could agree to limit or overturn those decisions, lower courts should continue to see those decisions as governing the admission of forensic evidence.
Concluding Thoughts: A majority of the Court is looking for a clear and reasonable way to limit Melendez-Diaz and Bullcoming in the forensic report space but has yet to find one. As a result, lower courts are left with an unstable doctrine that makes relying on this case risky. What we do know is this: five Justices rejected the plurality’s finding that the report was not entered for its truth, leaving the main question the same as it was post-Bullcoming: when does a forensic report count as “testimonial” and when does it not? Williams suggests that the following considerations may be relevant for future jurisprudence:
- Any testing conducted after a suspect has been identified is still likely to trigger the Confrontation Clause. Given the logic behind this targeting rationale, it seems confrontation rights should be triggered regardless of whether the originally targeted individual is the one later indicted by the forensic report or not.
- If a defendant can show a good reason to doubt the reliability of the testing, or if it looks like the prosecution is attempting to evade a formalized report process in bad faith, Justice Breyer and Justice Thomas would likely find the Confrontation Clause triggered. The difficulty, however, is determining what counts as “bad faith” for Justice Thomas or sufficiently unreliable for Justice Breyer, given that neither Justice found those conditions met here.
- While Justice Alito said otherwise, his opinion appears to make the identity of the fact-finder relevant. That said, it seems unlikely that anyone in the plurality would have held differently if this had been a jury case.
- If the report is sufficiently “formal” or “solemn,” Justice Thomas may once again join with the dissent and find the report a testimonial.
- And finally, we can expect Justice Sotomayor to be more Confrontation Clause-friendly than her concurrence in Bullcoming may have suggested.