Seventh Circuit Applies The Divided Williams v. Illinois Opinion To Expert Testimony

After Supreme Court remand following Williams v. Illinois, Seventh Circuit affirms admission of lab supervisor's testimony describing the lab procedures, safeguards, and review of the unavailable lab analyst's work under the Confrontation Clause; circuit notes that Williams "casts doubt on using expert testimony" to the extent that "the expert is asked about matters which lie solely within the testing analyst’s knowledge" who does not testify; while "the bulk of [the expert] ... testimony was permissible," any error in admitting the expert testimony that the non-testifying expert "followed standard procedures in testing the substances" and that the testifying expert "reached the same conclusion about the nature of the substances" as did the non-testifying expert, was harmless beyond a reasonable doubt, in United States v. Turner, 709 F.3d 1187 (7th Cir. March 4, 2013) (No. 08–3109)

At the beginning of the year, the Federal Evidence Blog's Retrospective: Ten Key Evidence Issues From 2012 noted the continuing uncertainty over the application of the Confrontation Clause to expert testimony in which the expert opinion is based upon testimonial statements of non-testifying experts following the divided plurality opinion in Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). See Supreme Court Watch: Confrontation Clause: Williams v. Illinois: Still Seeking Guidance On Expert Testimony Issues. Earlier in the week, the Seventh Circuit applied the Williams decision following a remand by the Supreme Court. The circuit's careful discussion highlights the ongoing confusion and many of the issues that remain to be resolved in the wake of the Williams decision.

Remand By The Supreme Court

Prior to Williams, the Seventh Circuit had affirmed the admission of the challenged expert testimony under the Confrontation Clause in United States v. Turner, 591 F.3d 928 (7th Cir. 2010). See Supervisor's Expert Testimony Did Not Violate Confrontation Clause By Describing Peer Review Process. On June 29, 2012, the Supreme Court granted the petition for a writ of certiorari, vacated the judgment, and remanded the Turner case for further consideration in light of Williams v. Illinois, 567 U. S. _ (2012) (No. 09-10231). See Turner v. United States, 133 S. Ct. 55 (2012); see also Turner Docket Sheet.

Expert Trial Testimony

As for the facts, as summarized by the circuit, defendant Turner:

was charged with three counts of distributing cocaine base premised on multiple sales of crack cocaine he made to an undercover police officer. Amanda Hanson, the crime laboratory chemist who analyzed the substances that Turner distributed to the officer and confirmed that they contained cocaine base, was on maternity leave at the time of Turner's trial. Over Turner's objection, the supervisor who peer reviewed her work, Robert Block, testified as an expert, opining based on the data produced by Hanson that the substances contained cocaine base. Importantly, Block also testified that Hanson had followed standard testing procedures in analyzing the substances and that he reached the same conclusion that Hanson had as to the nature of those substances.
Turner, 709 F.3d at 1188 (citations omitted).

Noting Supreme Court Division

Initially, the circuit noted the division in the Williams opinion and resulting doubt concerning the admissibility of expert testimony under the Confrontation Clause:

We begin by noting that the 4-1-4 division of the Justices in Williams, with one Justice — Justice Thomas — concurring in the result but no portion of the plurality’s reasoning, makes it somewhat challenging to apply Williams to the facts of this case. As the dissenting opinion in Williams observes, the divergent analyses and conclusions of the plurality and dissent sow confusion as to precisely what limitations the Confrontation Clause may impose when an expert witness testifies about the results of testing performed by another analyst, who herself is not called to testify at trial. See 132 S. Ct. at 2277 (Kagan, J., dissenting).

At the least, however, the Williams decision ... casts doubt on using expert testimony in place of testimony from an analyst who actually examined and tested evidence bearing on a defendant’s guilt, insofar as the expert is asked about matters which lie solely within the testing analyst’s knowledge.
Turner, 709 F.3d at 1189 (footnote omitted).

Case Analysis: Nature Of Expert Testimony

In its analysis of the case, the Seventh Circuit observed that lab supervisor Block testified as "both a fact and an expert witness." As a fact witness he "described the procedures and safeguards that employees of the laboratory observe in handling substances submitted for analysis." The witness also offered expert opinion testimony, "based on his experience and expertise, that the data ... produced in testing" in the defendant's case indicated that the defendant had been distributing a substance that "contained cocaine base." Because expert "analysis and testimony are not invariably necessary to establish the identity of the controlled substance which the defendant is charged with distributing," the circuit pointed to the various pieces of circumstantial evidence received in the case which independent of the lab test would support the defendant's conviction.

Putting aside this circumstantial evidence which was sufficient to convict the defendant, the circuit noted that the government could also establish through lab supervisor Block's expert testimony that the "data produced by Hanson's testing" indicated that the defendant was distributing cocaine base. As explained by the circuit:

an expert who gives testimony about the nature of a suspected controlled substance may rely on information gathered and produced by an analyst who does not himself testify. Pursuant to Federal Rule of Evidence 703, the information on which the expert bases his opinion need not itself be admissible into evidence in order for the expert to testify. Thus, the government could establish through Block's expert testimony what the data produced by Hanson's testing revealed concerning the nature of the substances that Turner distributed, without having to introduce either Hanson's documentation of her analysis or testimony from Hanson herself. And because the government did not introduce Hanson's report, notes, or test results into evidence, Turner was not deprived of his rights under the Sixth Amendment's Confrontation Clause simply because Block relied on the data contained in those documents in forming his opinion."
Turner, 709 F.3d at 1189 (citing Turner, 591 F.3d at 932–34 (citing United States v. Moon, 512 F.3d 359, 361-62 (7th Cir. 2008))).

However, there were "two aspects" of the expert's testimony that

potentially present[ed] a Confrontation Clause problem: [1] [the testifying expert] Block’s testimony that [the non-testifying expert] Hanson followed standard procedures in testing the substances that Turner distributed to the undercover officer, and [2] his testimony that he reached the same conclusion about the nature of the substances that Hanson did. In both respects, Block necessarily was relying on out-of-court statements contained in Hanson’s notes and report. These portions of Block’s testimony strengthened the government’s case; and, conversely, their exclusion would have diminished the quantity and quality of evidence showing that the substances Turner distributed comprised cocaine base in the form of crack cocaine. However, apart from Block’s testimony, there was other evidence indicating that the substances were crack cocaine, and Turner himself did not contest that they were, in fact, crack cocaine. We are therefore confident that any error did not affect the outcome of the trial.
Turner, 709 F.3d at 1190.

In its analysis, the circuit assumed the applicability of Williams, although it took pains to point out where the analysis in Williams did not apply. For example, in describing the application of Williams to the dual fact-expert testimony situation, which was present in defendant Turner's case, the circuit noted that there seemed to be little dissent. The result would not differ, regardless of whether the Justice Alito plurality was applied, or the Justice Kagan dissent, or the Justice Thomas concurrence. As the circuit observed in Turner:

Nothing in the Supreme Court's Williams decision undermines this aspect of our decision [regarding receipt of lab supervisor's testimony as a mixture of expert and lay testimony]. On the contrary, Justice Alito's plurality opinion in Williams expressly endorses the notion that an appropriately credentialed individual may give expert testimony as to the significance of data produced by another analyst. Nothing in either Justice Thomas's concurrence or in Justice Kagan's dissent takes issue with this aspect of the plurality's reasoning. Moreover, as we have indicated, Block in part testified in his capacity as Hanson's supervisor, describing both the procedures and safeguards that employees of the state laboratory are expected to follow and the steps that he took to peer review Hanson's work in this case. Block's testimony on these points, which were within his personal knowledge, posed no Confrontation Clause problem.
Turner, 709 F.3d at 1191 (citing Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221 (2012) (“It has long been accepted that an expert witness may voice an opinion based on facts concerning the events at issue in a particular case even if the expert lacks first-hand knowledge of those facts.”) (footnote omitted).

The remand opinion in Turner highlights the continuing uncertainty concerning the application of the Confrontation Clause to expert testimony which uses conclusions from a non-testifying expert. Ultimately, the Supreme Court will have to revisit this issue to resolve the confusion.


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