The effect of Williams
Despite the sturm und drang with which the defense bar greeted the Supreme Court's decision on Monday in Williams v. Illinois, the opinion's reach might be much more limited. In fact, there is no reach, because technically speaking, there is no opinion: as we discussed yesterday, while a plurality of four justices held that Williams' confrontation rights weren't violated by a DNA analyst's testimony about testing performed at an out-of-state lab, the other five justices vigorously criticized the result and the reasoning -- such as it was -- used to arrive at it. The only reason Williams lost was because Thomas didn't believe that the report from the outside lab qualified as a testimonial statement because it wasn't certified, a distinction only he made.
Still, while the impact of the decision might be less significant than initially thought, it gives some clues as to where the Court's going on future Crawford issues. That's what we're going to take a look at today.
First, neither of the main arguments of the plurality appear to have much traction. The first contention was that the Cellmark report wasn't being admitted for its truth, but only to show the basis for the expert's opinion. That's technically proper under the Federal rules of evidence, and those of many states, including Illinois. (But not Ohio; here, the basis for an expert's opinion can only be what he's perceived or what has otherwise been admitted into evidence.) Even there, though, the report itself isn't admissible, unless its probative value outweighs its prejudicial effect. The Cellmark report was in fact admitted on this basis, but the plurality got around that because this was a bench trial, and the judge was presumed capable of admitting the report for the limited basis; the plurality admitted that the result might have been different in a jury trial. But both Thomas and the dissenters pointed out the meaningless of the distinction between admitting something for its truth and admitting it to support the expert's opinion, especially since the only way it supports the expert's opinion is if it's true.
The plurality's second argument, that the Cellmark report didn't violate Williams' confrontation rights because he not a "target" of the investigation, fares no better. As Kagan and Thomas point out, there's simply no basis for that distinction, in either the history of the confrontation right nor in the Court's cases on that issue.
But there's an underlying theme to the plurality's analysis here that deserves a closer look. The confrontation right and the hearsay rule are closely linked; both are based on the notion that out-of-court statements not subject to cross-examination are less reliable. The hearsay exceptions are predicated on that belief: people don't lie when they're excited, or when they're telling their doctor their symptoms, or relating something that's currently happening, and so cross-examination of those statements provides little value. Scalia rejected the focus on "reliability" in determining confrontation issues; in his view, the 6th Amendment right wasn't a guarantee that evidence would be reliable, but only that reliability would be determined in a particular fashion -- through cross-examination.
Still, as I wrote two years ago in my discussion of the Court's decision in Michigan v. Bryant, "divorcing the confrontation right from considerations of reliability is bound to run into problems." In Bryant, the police had responded to a call of a gunshot victim at a gas station; he told them who had shot him. In a 6-2 decision, the Court held that the statement was made in response to an emergency, and thus didn't present a confrontation rights issue under Crawford. That view could be debated, but what was indisputable was the fact that there would be no issue whatsoever if the victim had made the statement to the gas station owner or some passerby, rather than to the police. A statement made to the former would be no more or less reliable than one made to the latter, and having the admissibility of the statement turn on whom it was made to rather than its reliability was too much for six members of the Court.
And it was too much for the plurality here. Although the reasoning was shoddy, the ultimate point remained: the Cellmark evidence was reliable, cross-examination or no. This wasn't a situation, as in Melendez-Diaz or Bullcoming, where it was conceivable that the tester might have tampered with the result to produce a more favorable outcome for the prosecution, or where the validity of the result might have been thrown in doubt by questions about the tester's competence. (Perhaps the most critical fact in Bullcoming was that the person who actually performed the test did not appear at trial because he had been suspended without pay, something that could've proven fertile ground for cross-examination.) Here, Williams was not a suspect, so there was no possibility of someone at the lab intentionally manipulating the test. Nor was there any real possibility of the sample being unintentionally corrupted; the chances of that happening and still producing a result which inculpated Williams were nil.
Not to be ignored here are the practical realities, voiced more strongly in Breyer's concurrence. DNA testing requires numerous steps, with numerous participants. Does the state need to bring in everyone who was involved? Kagan has a point in arguing that this can be decided in another case, because this one "involved the testimony of not twelve or six or three or one, but zero Cellmark analysts." But her offhand suggestion that "in most cases a lead analyst is readily identifiable," thus implying this would be sufficient, runs contrary to the rest of her argument. A chain is only as strong as its weakest link, and exempting all but one of the links from cross-examination seems to counter the notion that cross-examination is necessary to ferret out corruption or incompetence in the testing process.
The Crawford line of cases pose a fascinating example of how the facts of a case can impact the law. The essential holding of Crawford -- that testimonial statements could not be admitted without cross-examination of the maker -- was analytically sound. The critical issue that has developed, however, is what constitutes a "testimonial" statement, and that was an issue which Crawford didn't really have to resolve: the statement there, a three-page confession by a possible accomplice, would have qualified as "testimonial" under any conceivable definition of the term. Had Williams been the first case to raise the issue, whether Scalia's analysis would have gone anywhere is open to doubt.
But here we are, eight years later, and there appears to be some clarity, especially with regard to non-forensic evidence. Given the the decision in Michigan v. Bryant, the jaundiced view toward Crawford expressed by the Williams plurality, and Thomas' insistence on formality as a requisite for finding that a statement was testimonial, it's likely that a statement to the police which falls within one of the exceptions to the hearsay rule, like excited utterance, isn't going to be regarded as testimonial. (In fact, the "response to emergency" doctrine under Crawford dovetails nicely into that hearsay exception, and will probably parallel it.)
But there's much less clarity in the area of forensic evidence. The good news is that the four dissenters in Bullcoming haven't expanded their reach. (Although the bad news is that Kennedy, who seemed like a potential defector from that group after oral argument in Williams (my discussion here; and I wasn't alone), didn't.) Thomas' "certification" requirement would seem to pose a problem; as Kagan pointed out, that would allow state to create a loophole simply by not requiring reports to be certified. In footnote 5 of his opinion, though, Thomas indicates that attempts to "evade the formalize process" in that manner would not be acceptable to him.
The bigger problem, though, is the one addressed by Breyer and skirted by Kagan: how many analysts need to fit on the head of the Crawford pin? Had the state brought someone in from Cellmark to testify, that question would have been clearly presented. It will be, sooner or later.