Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois

A recent survey of cases notes the ongoing confusion in the lower courts in applying the Confrontation Clause following last year's plurality decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012); the survey highlights "four major disputes left by Williams" which warrant reconciliation; it remains to be seen when the Supreme Court provide guidance on this important, recurring issue

As noted before in the Federal Evidence Blog, uncertainty persists concerning the application of the Confrontation Clause to expert testimoy based on last year's plurality decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The Second and Seventh Circuits, among other courts, have noted the challenges in applying the decision. See Second Circuit Highlights Breadth Of Uncertainty In Applying The Confrontation Clause In The Wake Of Williams v. Illinois; Seventh Circuit Applies The Divided Williams v. Illinois Opinion To Expert Testimony.

In our annual Retrospective: Ten Key Evidence Issues From 2012, the impact of the Williams case was highlighted as the first issue:

Until the Supreme Court addresses the issue, the lower courts will continue to wrestle with the application of expert testimony under the Confrontation Clause. The plurality opinion also raises questions about the direction of the Confrontation Clause analysis and whether changes may be underway.

A recent survey of cases following Williams highlights the continuing uncertainty. The survey was completed by the reporter to the Advisory Committee on Evidence Rules, Daniel Capra, who also serves as the Reed Professor of Law at Fordham University in New York. See Memorandum To: Advisory Committee on Evidence Rules, From: Daniel Capra, Reporter, Re: Federal Case Law Development After Crawford v. Washington — and After the Confusion of Williams v. Illinois (April 1, 2013). The memorandum notes the confusion resulting from the plurality opinion:

In Williams v. Illinois, 132 S.Ct. 2221 (2012), the Court brought substantial uncertainty to how courts are supposed to regulate hearsay offered against an accused under the Confrontation Clause. The case involved an expert who used testimonial hearsay as part of the basis for her opinion; but the splintered opinions in Williams create confusion not only for how and whether experts may use testimonial hearsay, but more broadly about how some of the hearsay exceptions square with the confrontation clause bar on testimonial hearsay.

Memorandum, at 2.

Recent Lower Court Application

The memorandum reviews the three opinions in Williams: The Alito Opinion (which provided the plurality opinion affirming the conviction in the case); the Kagan Opinion (which included four dissenting Justices); and the Thomas Opinion (who concurred in the judgment). In surveying cases applying Williams, the memorandum notes:

What is remarkable so far is how many lower court cases after Williams are simply treating the Alito-Rule 703 analysis as the law — i.e., if an expert relies on a report that contains testimonial hearsay, there is no confrontation clause violation so long as the report itself is not admitted and the expert comes to her own conclusion. Most courts are spending little or no effort to parse through all the Justice Thomas formality requirements.

Those courts that don’t just ignore the Thomas formality requirements either recognize them in passing or simply evade Williams entirely by relying on harmless error, no plain error, etc. Relatively few cases really go through all the opinions in Williams as a basis for coming to a conclusion on the admissibility of an expert’s testimony.

As to the dispute over the “primary motive” test, the early indications are that the Alito view is being considered controlling by most courts (even though Justice Thomas and the four in the Kagan camp disagree with it). That is, the working definition for testimoniality, at least in most of the early post-Williams cases, is whether the statement was made with the primary motive that it be used against a targeted individual.

Memorandum, at 6.


The memorandum concludes that given the state of the caselaw, a rule does not appear appropriate to address this issue at this time:

In light of the confusion wrought by Williams it would be problematic to propose any rule that would attempt to implement the “teachings” of that case. It will take at least a few years of lower court case law, and probably another Supreme Court opinion or two, to resolve the four major disputes left by Williams, specifically:

1. How is the “primary motive” test of testimoniality defined?

2. What is the relationship of the Confrontation Clause and testimonial statements that are not offered for truth?

3. Should the protection of the Confrontation Clause be limited to statements that are formalized in the nature of affidavits and certificates?

4. Under what circumstances, if any, can a government expert rely on testimonial hearsay under Rule 703?

Accordingly, it would not appear to make sense to propose amendments to the hearsay exceptions — or to Rule 703 — to try to square those rules with the moving target that is Confrontation. But certainly the Committee should continue to monitor developments. For example, if there comes a time when it is clear that an expert cannot constitutionally rely on testimonial hearsay, an amendment to Rule 703 could well be useful and important.

Memorandum, at 105.

Summary: What Source For Clarity?

Since an amended evidence rule is unlikely to resolve the uncertainty, it seems that the best avenue for clarify remains the Supreme Court. But given the division on the Court as reflected in the Williams plurality opinion, it remains unclear on which basis a consensus of the Court will form. Until then, as reflected in the survey, the lower courts will continue to grapple with applying the opinion on Confrontation Clause issues.

For more on the Williams case, see prior coverage in the Federal Evidence Blog and further information and the Williams v. Illinois Resource Page which includes Key Briefs and Other Materials.


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