Supreme Court Watch: Williams Plurality Opinion Raises More Questions About The Admissibility Of Expert Testimony

Plurality opinion affirms admission of DNA expert testimony referring to hearsay of a nontestifying witness yet leaves questions unanswered about the application of the Confrontation Clause to expert testimony based on matters beyond the expert's personal knowledge; discerning the "narrowest grounds" in the plurality and concurring opinions is challenging at best, in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (June 18, 2012) (No. 10-8505)

Before the Williams v. Illinois case was argued and decided, many lower courts had been wrestling with the admissibility of expert testimony which relies in part on the hearsay and forensic results of non-testifying witnesses. To what extent does the Confrontation Clause allow a testifying expert to testify about the statements of others who do not testify or matters beyond the expert's personal knowledge? See, e.g., Reconciling The Confrontation Clause and FRE 703 (listing recent cases).

The Williams case presented the following question:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

On June 18, 2012, the Supreme Court issued its Confrontation Clause opinion in Williams v. Illinois. After the case was decided, guidance for future expert testimony remains wanting.

Challenged Expert Testimony

On the facts of the case, following a sexual assault, the victim was taken to an emergency room, where a vaginal exam was conducted. Samples were provided by the state to Cellmark Diagnostic Laboratory, which obtained “a DNA profile for the person whose semen was recovered from” the victim. People v. Williams, 238 Ill.2d 125, 345 Ill.Dec. 425, 939 N.E.2d 268, 271 (July 15, 2010) (No. 107550). Nearly six months after the attack, defendant Williams was arrested on another offense. After providing a blood sample, a forensic scientist confirmed a match between the Cellmark DNA profile was made with the defendant’s DNA profile.

Defendant Williams was charged with committing aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery. At his bench trial, no one from Cellmark testified. The Cellmark report was not introduced at trial. A forensic expert testified about her DNA testing of the sample which the defendant provided following his arrest. She was then asked to compare the blood sample test with the Cellmark test by the following question:

“Q Was there a computer match generatedof the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from [defendant] Sandy Williams?

“A Yes, there was.”

Williams, 567 U.S. at __ (Alito, J., plurality opinion) (quoting dissent) (emphasis added). [For more background on the case, see the prior posts, including a summary of "Who Testified and Who Did Not on the DNA Analysis?, and a summary of the facts and lower court decision.]

Plurality, Concurring and Dissenting Opinions

In affirming the admission of the challenged expert testimony, the Supreme Court issued the following opinions:

  • Justice Samuel Anthony Alito, Jr., announced the judgment of the Court and wrote a plurality opinion, concluding that the Confrontation Clause was not violated for "two independent reasons" as (a) the testimony was nonhearsay offered "for the purpose of explaining the assumptions on which that opinion rests" and (b) was not "testimonial" as the Cellmark report "was not prepared for the primary purpose of accusing a targeted individual"; his opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Stephen G. Breyer;
  • Justice Clarence Thomas agreed with the plurality that the expert testimony was not "testimonial" (but for difference reasons than the plurality) yet agreed with the dissent that the plurality non-hearsay basis represented "flawed analysis";
  • Justice Breyer concurred, noting that he joined the plurality opinion but would have the case reargued to address the issue: "How doesthe Confrontation Clause apply to the panoply of crimelaboratory reports and underlying technical statementswritten by (or otherwise made by) laboratory technicians?"
  • Justice Elena Kagan dissented, and was joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Sonia Sotomayor. The dissent concluded the Confrontation Clause was violated when the defendant was deprived the chance to cross-examine the analyst who prepared the Cellmark report.

“Narrowest Grounds” Test

Normally, in discerning the rules that apply from a plurality and concurring opinions, guidance is found by identifying the "narrowest grounds" from the concurrence. As the Supreme Court has explained:

When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.

Marks v. United States, 430 U.S. 188, 193 (1968) (internal quotation omitted). However, the "narrowest grounds" are difficult to discern from the opinions in Williams.

The dissent is critical of the rationale allowing the expert testimony to be admitted:

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 reasoningand 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 reportis 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.

Williams, 567 U.S. at __ (Kagan, J., dissenting).

Role Of Bench Trial

Another factor in the case was that the trial was before a judge and not a jury. The plurality opinion suggested that the bench trial allowed the judge to give proper consideration to the expert testimony: "This case, however, involves a bench trial and we must assume that the trial judge understood that the portion ofLambatos’ testimony to which the dissent objects was notadmissible to prove the truth of the matter asserted." Williams, 567 U.S. at __ (Alito, J., plurality opinion) (footnote omitted).

The plurality opinion also criticized a treatise which disagreed with the state courts that had concluded the expert testimony in the case was introduced for a proper non-hearsay purpose. According to the plurality, the treatise criticism was "flawed" as "[i]t overlooks the fact that there was no jury in this case, and as we have explained, the trier of fact did not have torely on any testimonial hearsay in order to find that Lambatos’ testimony about the DNA match was supported by adequate foundational evidence and was thus probative." Williams, 567 U.S. at __ n.11 (Alito, J., plurality opinion).

Defining Testimonial Statements

The Williams highlights a question whether the Supreme Court is taking a different position on what constitutes "testimonial" statements. Will the majority of the Court follow and apply the definition urged by Justice Thomas, who considers whether the statement "lacked the requisite 'formality and solemnity' to be considered “testimonial” forpurposes of the Confrontation Clause." Williams, 567 U.S. at __ (Thomas, J., concurring opinion) (citing Michigan v. Bryant, 562 U. S. _, _ (2011) (THOMAS, J., concurring in judgment) (slip op., at 1)). The Court has yet to provide a definitive definition of "testimonial" statements.

Common Expert Testimony

Justice Alito’s plurality opinion noted that the challenged expert testimony was a common form:

For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the ex¬pert in this case. Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert.

Williams, 567 U.S. at __ (Alito, J., plurality opinion).

After Williams, guidance is still needed concerning a common expert testimony occurence. To what extent may an expert rely on the nonhearsay of non-testifying experts in explaining his or her opinion at trial. In fact, FRE 703 allows that:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

In his concurring opinion, Justice Breyer provided an Appendix which diagrams the steps necessary to obtain DNA expert analysis. As he explained:

As many as six technicians may be involved in deriving the profile from the suspect’s sample; as many as six moretechnicians may be involved in deriving the profile from the crime-scene sample; and an additional expert maythen be required for the comparative analysis, for a totalof about a dozen different laboratory experts. Each expertmay make technical statements (express or implied) during the DNA analysis process that are in turn relied uponby other experts.

Williams, 567 U.S. at __ (Breyer, J., concurring opinion).

Until the Supreme Court provides futher guidance, the lower courts will continue to wrestle with this issue.

For more information on the case (including copies of the briefs in the case and other related materials), see the Williams v. Illinois Resource Page.

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