It could have been worse
The Supreme Court's 2004 decision in Crawford v. Washington, in which the Court held that "testimonial statements" were barred, even if they fell within an exception to the hearsay rule, was hailed at the time as one of the most important decisions in history on the meaning of the Confrontation Clause. What exactly constituted a "testimonial statement" wasn't clear, and by the time the Court got done clarifying that in a couple of 2006 decisions, I wrote at the time that "it might not be unreasonable to suggest that Crawford isn't quite as sweeping as the defense bar initially thought" and that "if I had to guess, I'd say it's one of those decisions that five years down the road are going to be whittled into something less than they initially seemed."
Well, as the Chambers Brothers sang, "Time Has Come Today." Or on Monday, to be more exact, when the Supreme Court handed down its decision in Williams v. Illinois. The only thing you can say is that it could have been a lot worse.
It sure as hell could've been shorter: the four opinions (Alito for Roberts, Kennedy, and Breyer, with Breyer concurring and Thomas concurring only in judgment, and Kagan dissenting for Scalia, Ginsberg, and Sotomayor) clocked in at a formidable 98 pages. Of course, sifting through the entrails of novella-length Supreme Court opinions is why you guys pay me the big bucks, so let's get to it. Today I'll discuss what Williams held. Tomorrow I'll get into what it means for the future of Crawford.
First, the facts. Williams was charged with rape, and in his bench trial the DNA analyst testified as that she'd matched a DNA profile belonging to Williams to vaginal swabs of the victim. The swabs, however, had been sent to Cellmark, an outside laboratory, and it was Cellmark who produced the profile. The defense argued that the analyst's testimony should've been excluded because nobody from Cellmark appeared to testify how they obtained the profile.
The prosecution contended that the DNA analyst's testimony about Cellmark wasn't being offered for its truth, but simply to show how the expert came to her conclusion. The plurality buys into this, noting that testimonial statements, like other out of court statements, aren't prohibited if they're not offered for their truth. As the dissent argues, there's some sleight of hand going on here: of course Cellmark's profile was being offered for its truth, because if the profile wasn't accurate, there was no basis for the DNA analyst's opinion.
The plurality then goes on to hold that even if the Cellmark report wasn't introduced for its truth, there would still be no violation of the Confrontation Clause. This is by far the more important part of the opinion, because it lays the groundwork for how the Court might deal with Crawford in the future. The opinion here begins by focusing on the "chief evil" the Confrontation Clause was directed at: the use of ex parte examinations of witnesses, which were then read in court, without opportunity of the defendant to cross-examine the makers. In the plurality's view, then, the Crawford cases holding that the right's been violated share two characteristics: (1) the statements targeted the defendant, and (2) the statements were formalized -- affidavits, confessions, etc. The plurality then hones in on the first one: when Cellmark got the samples, the defendant wasn't even under suspicion (he was caught, as many rapists are, because the profile Cellmark created matched the defendant's DNA profile in the nationwide database). Thus, "the primary purpose of the Cellmark report, viewed objectively, was not to accuse petitioner or to create evidence for use at trial."
Whatever one thinks of her views, Kagan has proved to be a gifted writer in her first two years on the bench, and she shows off her chops by beginning the dissent with a classical "gotcha" moment: the story of a California rape case in which the two control samples had been inadvertently switched, and the analyst incorrectly testified that the blood on the victim's sweatshirt had come from the defendant, when it was in fact the victim's own blood. The lab involved? Cellmark.
As might be expected (it's a dissent, after all), Kagan spends the remainder of the opinion scoring the plurality's analysis of the case. In this, she has an unlikely ally: Thomas, who concurred only in the judgment. His concurrence was based on his view throughout the Crawford cases that the Confrontation Clause bars only "formalized" statements, which fits into the plurality's mention of that. As I said, though, the plurality didn't really spend any time on that issue, instead concentrating on the contention that the Cellmark report wasn't "focused" on Williams. Thomas agrees with the dissent that there's no basis in the history or text of the 4th Amendment that the Clause is limited to those statements which target a particular individual. And Thomas also agrees with the dissent's view that the plurality's claim that the Cellmark report wasn't introduced for the truth of the matter is pretty much bogus.
Breyer, although joining in the plurality opinion, writes a separate concurrence which is interesting in its own light. In fact, if left to his druthers, he wouldn't have decided the case at all; he wanted to set it for reargument on how "the Confrontation Clause applies to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians." In Breyer's view, the application of Crawford to these items is quite limited; he would find most of them admissible as "business records," and thus not falling within the purview of the Clause. Much of his view is prompted by the practicalities. Or, rather, the impracticalities: as he notes, "as many as six more technicians may be involved in deriving the profile from the crime-scene sample; and an additional expert may then be required for the comparative analysis, for a total of about a dozen different laboratory experts." Does that mean the prosecution has to call all of those people to testify?
It's tempting to agree with Kagan's observation that the case "creates five votes to approve the admission of the Cellmark report, but not a single good explanation." On the other hand, it's hard to dismiss Breyer's concerns, and there's the lingering feeling that the plurality isn't off base in suggesting that confrontation would've added little if anything to the determination of the reliability of Cellmark's findings. By virtue of the fact that Williams is a plurality opinion, in which the fifth justice vigorously joins in the dissent's criticism of the plurality's reasoning, concurring in judgment on a separate basis which none of the other eight agree with, it provides little if any clarity in determining how forensic evidence should be handled under Crawford. Whatever clues it provides as to how the Court will handle that in the future is the subject for tomorrow.
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