Supreme Court Watch: Another Case Seeking Review On Expert Testimony Under The Confrontation Clause

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In addition to other pending cases, a Maryland case presents the question concerning the application of the Confrontation Clause to expert testimony; the Maryland Court of Appeals originally concluded the Confrontation Clause was violated in Maryland v. Derr but on remand from the Supreme Court in applying Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012), the Maryland Court now held the Confrontation Clause was not violated, in Derr v. Maryland (No. 13-637)

At the end of last year, based on confusion and conflicts in the circuit case law, the Federal Evidence Blog asked: Is The Application Of The Confrontation Clause To Expert Testimony Issue Ripening For Review? One of the Prospective Issues for 2014 concerned the Continuing Confusion On Expert Testimony Following Williams v. Illinois. In addition to other pending cases, one case from Maryland presents the following reassessment of the Confrontation Clause and may provide a useful vehicle to address pending issues.

Questions Presented

The petitioner requests review of the following issue:

Whether the Sixth Amendment permits the State’s expert witness to present to a jury the results of forensic tests that she neither performed nor witnessed as substantive evidence to support her conclusion that Petitioner was the source of DNA evidence, when the State does not call the analysts who performed the tests as witnesses or show that they are unavailable and previously subject to cross-examination?

Petition for a writ of certiorari, Derr v. Maryland (Nov. 20, 2013). The State of Maryland frames the question differently:

Does the Sixth Amendment allow an expert witness to give an opinion based in part upon raw data generated by machines and non-testifying lab technicians?

Brief in Opposition, Derr v. Maryland (March 17, 2014). On Friday, April 18, 2014, this case is set for conference before the Supreme Court.

Summary of the Facts and Prior Proceedings

In 2006, defendant Derr was charged with first-degree rape, first degree sexual offense, and second-degree sexual offense based on a sexual assault that occurred in 1984. The charges were based on a DNA match of his profile with biological evidence obtained from the victim in 1984. A DNA match was confirmed in 2004. At his trial, the state did not call any of the analysts who had tested the DNA evidence in 1985, 2002 and 2004. An FBI analyst testified, as an expert concerning forensic serology and DNA analysis, that the defendant was the source of sperm obtained from the swabs from the victim based on the forensic testing of others. The jury convicted the defendant and he was sentenced to two consecutive life sentences.

In September 2011, the Maryland Court of Appeals held the admission of the expert testimony violated the Confrontation Clause, reversed the conviction and remanded for a new trial. See Derr v. Maryland, 422 Md. 211, 29 A.3d 533 (2011) (Derr I). Eleven days following the decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012), on June 29, 2012, the Supreme Court vacated the opinion in Derr and remanded. See Maryland v. Derr, 133 S. Ct. 63, 183 L. Ed. 2d 700 (2012) (No. 11-694). On August 22, 2013, the Maryland Court of Appeals held that the Confrontation Clause was not violated. See Maryland v. Derr, 434 Md. 88, 73 A.3d 254 (2013) (Derr II). Specifically, the state court concluded:

Luttman’s in-court testimony was subject to cross-examination. The forensic test results presented as the basis for her in-court testimony are not testimonial under the Williams decision. Therefore, we conclude that Derr’s right to confront witnesses was not violated in this case. And, although Luttman lacked first-hand knowledge that the results admitted were attributed to the swabs taken from the victim or from Derr, or that proper procedures were followed to ensure the accuracy of the results, this lack of firsthand knowledge goes to the weight of the evidence, not its admissibility.

73 A.3d at 273 (footnote omitted).

It remains to be seen whether the Supreme Court will consider this case. A number of interesting issues are raised by the case including the application of the Williams decision, which has been a source of confusion by numerous lower courts. Will the Supreme Court take the Derr case to provided much needed clarity and guidance concerning the application of the Confrontation Clause to expert testimony? See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois; Second Circuit Highlights Breadth Of Uncertainty In Applying The Confrontation Clause In The Wake Of Williams v. United States. The Maryland Court of Appeals noted that there was no majority opinion in Williams v. Illinois to apply:

The plurality did not clarify how to determine if a statement is sufficiently formalized to be testimonial. Both the plurality opinion and Justice Thomas’s concurring opinion, however, use nearly the same examples of what constitutes sufficiently formalized statements, namely affidavits, depositions, prior testimony, or statements made in formalized dialogue or a confession. See 567 U.S. at __, 132 S. Ct. at 2242, 183 L. Ed. 2d at 114 (plurality); 567 U.S. at __, 132 S. Ct. at 2260, 183 L. Ed. 2d at 133 (Thomas, J., concurring in judgment). We, thus, conclude that courts should rely on Justice Thomas’s concurrence to determine whether a statement is formalized.

73 A.3d at 271.

Additionally, the case raises an issue concerning forensic science advances. If evidence obtained at the time of the offense can be analyzed decades later, and the original analysts are no longer available to testify, how does the Confrontation Clause address this situation. Would some criminal conduct be insulated from prosecution if the original analysts cannot be located or are no longer around? As the State of Maryland observes:

Derr seeks to effectively end the use of forensic science to prosecute cold cases by advocating an overbroad application of the Confrontation Clause to
areas it was never meant to address. The Court of Appeals was correct in rejecting this approach, and its decision should stand.

Brief in Opposition, at 15, Derr v. Maryland (March 17, 2014).

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Case Briefs and Materials

For the briefs and docket sheet in the Derr case, see:

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For other cases raising Confrontation Clause and expert testimony issues pending before the Supreme Court, consider: Turner v. United States Petition For A Writ Of Certiorari (No. 13-127); Brewington v. North Carolina Petition For A Writ Of Certiorari (No. 13-504); Ortiz-Zape v. North Carolina Petition For A Writ Of Certiorari (No. 13-633); Maxwell v. United States Petition For A Writ Of Certiorari (No. 13-7394).

For more information on the Williams case (including copies of the briefs in the case and other related materials), see the Williams v. Illinois Resource Page, which includes Key Briefs and Other Materials, and coverage in the Federal Evidence Blog.

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