The Current State of Confrontation

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Tuesday, November 20th, 2012
The Current State of Confrontation

At the conclusion of this year’s session, a splintered Supreme Court authorized the use of laboratory reports during trial without allowing the defendant an opportunity to cross-examine the technician who created the report. Williams v. Illinois 567 U.S. __(2012). This opinion is a slight retreat from recent rulings that broadly interpreted the Sixth Amendment “right of confrontation” in favor of defendants in comparable cases (Crawford v. Washington, 541 U.S. 36, 50 (2004), Melendez-Diaz v. Massachusetts, 557 U.S. 305, 330 (2009), and Bullcoming v. New Mexico, 564 U.S. ____(2011)).

Williams v. Illinois

Justice Samuel Alito, writing for a four-justice plurality, affirmed that the testimony of an expert witness based upon a test that the testifying expert did not personally perform is admissible and does not violate the defendant’s Sixth Amendment rights. The Court held that because the evidence of the third-party test was not offered to prove the truth of the matter asserted (but merely to provide a basis for the conclusions that the expert reached), the prosecution had not infringed on the defendant’s Sixth Amendment right to confront and cross-examine witnesses. The Court’s ruling hinged on the following: First, the government witness testified and concluded that the DNA report in question matched a profile report the state laboratory had previously produced using a sample of Williams’ blood. Second, the government witness proffered was available to the defendant for cross-examination during trial. Accordingly, the Court concluded that the testimony offered did not fall within the bounds of a Confrontation Clause violation because the results were considered (by the testifying witness) for the limited purpose of seeing whether it matched the profile report from the state laboratory. The DNA report was not offered to prove the guilt of the defendant, as Williams was not a suspect at the time the test was conducted.

In Williams, the defendant (Sandy Williams) was convicted of two counts of aggravated criminal sexual assault and one count each of aggravated kidnapping and aggravated robbery in Illinois state court. At the defendant’s bench trial, Sandra Lambatos, a forensic specialist at the Illinois State Police lab, testified that she matched a DNA profile (of the defendant) previously produced by a private laboratory, Cellmark, to a profile the state laboratory produced using a sample of the defendant’s blood. Lambatos testified that Cellmark was an accredited laboratory and that business records showed that the evidence was taken from the victim, sent to Cellmark, and returned. That was the extent of her testimony.

The defense moved to exclude, on Confrontation Clause grounds, Lambatos’ testimony insofar as any reference to the Cellmark report as “hearsay.” The prosecution countered that the defendant’s Confrontation Clause rights were satisfied because he had the opportunity to cross-examine the expert who had testified as to the matching reports. The trial court admitted the evidence and found Williams guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed the conviction, concluding that Lambatos’ testimony did not violate Williams’ Confrontation Clause rights because Cellmark’s report was not offered into evidence to prove the truth of the matter asserted.

The decision in Williams departs to some degree from the recent Supreme Court rulings referred to by the defense bar as “the trilogy.” However, the plurality in Williams felt that its decision was consistent with both the Melendez-Diaz and Bullcoming opinions (where the forensic reports were introduced for the purpose of proving the truth of what they asserted). Here, Cellmark’s report was considered and admitted for the limited purpose of seeing whether it matched something else, and the relevance of that match was established by independent circumstantial evidence—which showed that the report was based on a sample from the crime scene. Furthermore, the Court specifically noted in Williams that “the forensic reports in Melendez-Diaz and Bullcoming ran afoul of the Confrontation Clause because they were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt.” In contrast, the Court went on to note in Williams that the primary purpose of the Cellmark report was to catch a dangerous rapist who was still at large, and not to obtain evidence for use against the defendant. Accordingly, there was no “prospect of fabrication” in the Court’s eyes.

Justice Elena Kagan (joined by Justices Ginsburg, Sotomayor, and Scalia) wrote a vigorous dissent, proclaiming, “Under our Confrontation Clause precedents, this is an open-and-shut case.” She found this case to be in the same vein as the trilogy of cases mentioned above where the Court found that in order to satisfy the requirements of the Confrontation Clause, the defendant must have the opportunity to cross-examine the analyst who performed the test. Without such an opportunity, an unreliable report is assumed to be true.

More specifically, the dissent suggests that the DNA profile report produced by an analyst at Cellmark’s laboratory is identical to the report in Bullcoming (and Melendez-Diaz) in “all material respects.” Therefore, Justice Kagan wrote, “under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst.” However, that is not what happened.

“Instead,” wrote Justice Kagan, “the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence.”

Finally, the dissent disagreed with the plurality’s conclusion that Cellmark’s report was not offered into evidence to prove the truth of the matter asserted, arguing that the “admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.”

The “Trilogy”

The three primary opinions authored by the United States Supreme Court in the last ten years dealing with a defendant’s Sixth Amendment right to confront the witnesses against him started with the seminal opinion of Crawford v. Washington. Briefly, the facts of the Crawford case are as follows: Michael Crawford stabbed a man that he claimed was trying to rape his wife. During Crawford’s trial in state court, prosecutors played his wife’s tape-recorded statement given to the police describing the stabbing for the jury. The statement contradicted Crawford’s claim that he stabbed the man in defense of his wife. Crawford argued that allowing the jury to hear his wife’s prerecorded statement violated his Sixth Amendment right of confrontation because he was not allowed any opportunity to cross-examine the recording. Citing Ohio v. Roberts, 448 U.S. 56 (1980), the state Supreme Court upheld Crawford’s conviction. Roberts was a 1980 opinion in which the U.S. Supreme Court upheld an Ohio state court conviction where the state was allowed at the trial level to offer the preliminary hearing transcript of a critical witness in lieu of live testimony. The U.S. Supreme Court held that the use of the transcript testimony did not violate the Confrontation Clause because it bore an adequate “indicia of reliability”—and that in such cases, this type of evidence would fall “within a firmly rooted hearsay exception.”

In a unanimous opinion written by Justice Scalia, the Court reversed Crawford’s conviction and ruled that his Sixth Amendment right to confront and cross-examine witnesses against him had been violated. Defendants have the constitutional right to confront witnesses and cross-examine their testimony in criminal prosecutions. This holding directly overruled Roberts. In summary fashion, the Court held that the framers of the Constitution designed the Confrontation Clause to strictly prohibit out-of-court testimony as evidence against a defendant—again, without the benefit of the defendant being allowed to cross-examine the testimony.

In Crawford, Justice Scalia recited a detailed history of the Confrontation Clause. He went on to describe the context in which the framers of the Constitution drafted the clause and gave numerous examples of how American courts have interpreted the clause over the years. Scalia concluded that the Confrontation Clause of the Sixth Amendment applies to any “witnesses” against the defendant, meaning any person, statement, or document whose purpose was to “bear testimony.” The Crawford opinion has been consistently viewed as a bellwether case for defendant’s rights. It had an immediate and far-reaching effect in criminal courts nationwide. Previously, prosecutors had been enjoying a fair amount of leeway involving the use of affidavits and lab reports (where they gained admission through various exceptions to the hearsay rule). In Crawford, the Court expressly held that any out-of-court statement that was “testimonial in nature” was not admissible unless the defendant had the opportunity to cross-examine the declarant.

In Melendez-Diaz v. Massachusetts, the Court applied the standard as set forth in Crawford to a state forensic laboratory report. Briefly, in the prosecution of a drug case against Melendez-Diaz, the trial court allowed lab reports identifying the substance as cocaine without any testimony from the analyst. In a 5–4 decision, the Supreme Court held that because the lab report was prepared for use in a criminal prosecution, the SixthAmendment Confrontation Clause demanded that the defendant be given the right to cross-examine the author of the lab report. As set forth in Crawford , the Supreme Court held that the laboratory report prepared and used in a criminal prosecution was “testimonial in nature,” and that the defendant had a fundamental Sixth Amendment right to confront and cross-examine the analyst who prepared the report prior to it being admissible.

In 2010, the Court revisited the Crawford and Melendez-Diaz opinions in a case involving a laboratory report of a blood alcohol reading in a DUI case. Once again, and in a 5–4 decision, the Court held a line that it created in Crawford. In Bullcoming v. New Mexico, the Supreme Court held that the admission of the blood alcohol report without the actual testimony of the person who prepared the report violated Bullcoming’s Sixth Amendment rights. Specifically, Justice Ginsburg stated, “The Confrontation Clause (of the Sixth Amendment) does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification (as to its accuracy), made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform the test. . . .”

Conclusion

The trilogy opinions had a huge impact in helping defendants accused of DUI or drug charges obtain a fair trial where they are allowed to cross-examine the laboratory analyst who performed the examination. Any breath alcohol test, blood alcohol test, or forensic drug examination of any type must be accompanied by the officer or laboratory technician who per­formed the test before it can be admissible. Critically, this allows a defendant the right to vigorously confront and cross-examine the witness regarding the obtaining, handling, storage, and testing of the sample. In Williams, the Court pares a defendant’s right to confront laboratory test evidence prepared by an unavailable witness. However, the Williams opinion does not appear to infringe upon a defendant’s right of confrontation where the laboratory report offered would be considered “testimonial in nature” and “offered as proof of truth of the matter asserted.”