Supreme Court Watch: Denying Certiorari Review In Eleven Recent Confrontation Clause Cases

In denying certiorari review in eleven cases raising Confrontation Clause and expert testimony issues, for the foreseeable future the Supreme Court will not resolve a significant issue that has been dividing the lower court; it remains to be seen when the guidance urged by the lower courts will be provided

Last week, the Federal Evidence Blog noted that there were at least 12 cases pending for certiorari review on significant issues concerning the application of the Confrontation Clause to expert testimony. See Supreme Court Watch: Twelve Cases Seeking Review Of Confrontation Clause and Expert Testimony Issues. Yesterday, on May 27, 2014, the Supreme Court denied certiorari review in 11 of the 12 cases. Interest had increased about the possibility that at least one of the cases would be considered by the Supreme Court given the number of cases presenting the issue, the need for guidance in the lower courts, and the fact that each of the cases had been relisted and were finally set to be considered on the Conference on May 22, 2014, as summarized below.

A Conference is set for June 5, 2014, in the twelfth case: Derr v. Maryland (No. 13-637), which presents 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. As the Petition For A Writ Of Certiorari summarizes:

This case concerns an important question of constitutional law that is frequently litigated in criminal cases: the limits the Confrontation Clause places on the government’s use of an expert opinion that is based on the results of forensic testing that have been made known to the expert but about which the expert is not competent to testify. The Court sought to answer that question in Williams, 567 U.S. __, 132 S. Ct. 2221, but the divided decision has spawned enormous confusion, and deep conflict, in state and lower federal courts. This case provides a proper vehicle for the Court to provide authoritative guidance to the lower courts because the decision in the court below is in conflict with the decisions of at least eleven state supreme courts and three federal courts of appeals.

Petition For A Writ Of Certiorari, at 9; Supreme Court Docket; See generally Supreme Court Watch: Another Case Seeking Review On Expert Testimony Under The Confrontation (summarizing case).

As Rule 10, Rules of the U.S. Supreme Court, provides, "Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons." Normally, no reason is given for the denial of this discretionary review.

Earlier this year, the Federal Evidence Blog noted the need for the Supreme Court to address the confusion among the lower courts in considering expert testimony under the Confrontation Clause which is based upon the statements of non-testifying witnesses. In addition to the Derr case noted above, several of the pending cases had noted the conflict and need for clarity in the lower courts. Apparently, the Supreme Court is not ready to provide the requested guidance. Perhaps this reflects the division in the plurality decision in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012) (No. 10-8505). As Justice Elena Kagan described the state of the constitutional rule after Williams in her dissent:

In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dissent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.

That creates five votes to approve the admission of the Cellmark report, but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. JUSTICE THOMAS’s concurrence, though positing an altogether different approach, suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court's fractured decision.

Williams, 132 S.Ct. at 2265 (Kagan, J., dissenting).

Denying Certiorari Review

Yesterday, the Supreme Court denied certiorari review in the following eleven cases, with the Conferences to consider each case noted:

  • Arauz v. California (No. 13-9118); Supreme Court Docket (Distributed for Conferences on May 15, 2014 and May 22, 2014)
  • Brewington v. North Carolina (No. 13-504); Supreme Court Docket (Distributed for Conferences on December 6, 2013, May 15, 2014 and May 22, 2014)
  • Edwards v. California (No. 13-8618); Supreme Court Docket (Distributed for Conferences on April 18, 2014, May 15, 2014, and May 22, 2014)
  • Galloway v. Mississippi (No. 13-761); Supreme Court Docket (Distributed for Conferences on April 18, 2014, May 15, 2014, and May 22, 2014)
  • ,
    Marshall v. Colorado (No. 13-7768); Supreme Court Docket (Distributed for Conferences on February 21, 2014, May 15, 2014 and May 22, 2014)
  • Maxwell v. United States (No. 13-7394); Supreme Court Docket (Distributed for Conferences on January 10, 2014, May 15, 2014, and May 22, 2014)
  • Ortiz-Zape v. North Carolina (No. 13-633); Supreme Court Docket (Distributed for Conferences on January 10, 2014, May 15, 2014, and May 22, 2014)
  • Turner v. United States (No. 13-127); Supreme Court Docket (Distributed for Conferences on September 30, 2013, December 13, 2013, May 15, 2014, and May 22, 2014)
  • Walker v. Wisconsin (No. 13-8743); Supreme Court Docket(Distributed for Conferences on March 28, 2014, May 15, 2014, and May 22, 2014)
  • Williams v. Massachusetts (No. 13-9930); Supreme Court Docket (Distributed for Conferences on May 15, 2014 and May 22, 2014)
  • Yohe v. Pennsylvania (No. 13-885); Supreme Court Docket (Distributed for Conferences on March 28, 2014, May 15, 2014, and May 22, 2014)

Conclusion

The Federal Evidence Blog will continue to monitor this issue. In the meantime, 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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