The United States Supreme Court has agreed to hear another case raising the issue of the scope of the Sixth Amendment Right of Confrontation. The case of Williams v. Illinois directly raises the confrontation clause issues raised in the concurring opinion of Justice Sotomayor. The filings in the Williams case can be found on the Scotus Blog, attached as a link here.
The Williams case involved charges of sexual assault, kidnapping and robbery. The defendant allegedly grabbed the victim while she was walking home and sexually assaulted her. In the case, according to the police, the victim initially identified her attacker as a man named McChristine, but later told the police that he was not the attacker.
Over a year later, the defendant was arrested and identified by the victim as her attacker through a line-up identification procedure. At trial, the State called a forensic scientist to testify, Sandra Lambatos who testified that samples from the victim’s sexual assault kit were sent to Cellmark diagnostic laboratory for DNA analysis. Lambatos testified that Cellmark derived a DNA profile for the person whose semen was recovered from the victim. The expert witness testified that in her opinion the profile matched the defendant. The testifying expert at trial did not know what procedures were used by the lab, whether the lab calibrated its equipment, and how samples were handled once received. At trial, no witness from Cellmark testified and the report was not introduced into evidence.
The criminal defense lawyer moved to exclude the DNA evidence on the grounds that the defendant was being deprived his right of confrontation because no witness from the laboratory was brought to court to testify as to the procedures used to determine a genetic match.
The Illinois Supreme Court found no confrontation clause violation, holding that under Illinois’s Rules of Evidence, the facts and data disclosed by a testifying expert to explain the basis of an opinion are not considered to be admitted for the truth of the matter asserted, meaning that the expert’s testimony regarding the report of the DNA laboratory did not constitute hearsay.
In the case of Bullcoming v. New Mexico, decided on June 23, 2011, the concurring opinion of Justice Sotomayor specifically left this issue open. I have attached the Bullcoming decision here.
Since Bullcoming was a 5-4 decision, with the dissenting justice seeming to be firmly unified in limiting the scope of the confrontation clause, the resolution of the Williams case will likely turn on the vote of Justice Sotomayor.
The key language comes from Justice Sotomayor’s concurring opinion where she states that Bullcoming should not be read to encompass the following circumstances:
While it is difficult to predict how the Court would vote if confronted squarely with the issue, the concurring opinion clearly suggests a limitation on the Bullcoming decision. However, the situation raised by the Williams case is different from that contemplated by Justice Sotomayor’s concurrence. In the concurrence, she is suggesting that an expert can testify about reports used to arrive at the expert’s opinion without violating the confrontation clause. As the petition for certiorari in Williams argued, the rationale behind Rule 703, is that an expert can testify as to data reasonably relied on by experts in that particular field. However, the court dispensed with the reliability rule in Crawford v. Washington, 541 U.S. 36 (2004) and specifically held in Melendez-Diaz that forensic analysis is neither fool-proof nor immune from manipulation. Accordingly, the Court is being faced squarely with the issue of whether the State can circumvent the confrontation clause by having an expert testify about the data contained in a forensic report when the underlying analyst is not called to testify.
The United States Supreme Court should hold that the defendant’s right of confrontation was violated by the admission of the DNA evidence. The procedure essentially allowed the State to circumvent the requirements of the confrontation clause.
The Court may use this case to hold that the defendant can present evidence to point out the unreliability of expert testimony and that the confrontation clause does not require the state to present independent evidence of every detail that forms the basis for an expert opinion. However, in Williams in appears that admitting the underlying data behind the DNA testing was the primary purpose in calling the expert to testify. Accordingly, applying Justice Sotomayor’s reasoning in her Bullcoming concurrence and opinion in Michigan v. Bryant, decided earlier this term. I would expect that the court to find that the defendant was denied his right of confrontation under the Sixth Amendment.