Supreme Court Watch: Is The Application Of The Confrontation Clause To Expert Testimony Issue Ripening For Review?

Since the 2012 plurality decision in Williams v. Illinois, the lower courts have grappled with the lack of guidance concerning the application of the Confrontation Clause to expert testimony based on information of non-testifying analysts or individuals; while this issue lingers, a few pending certiorari petitions present the issue and suggest that the time may be ripe for the Supreme Court to consider this important issue again, as suggested in Turner v. United States (No. 13-127)

As previously noted in the Federal Evidence Blog, there is a lack of clarity and guidance concerning the application of the Confrontation Clause to expert testimony which is based on the non-testimonial statements of others. See, e.g., Second Circuit Highlights Breadth Of Uncertainty In Applying The Confrontation Clause In The Wake Of Williams v. United States; Supreme Court Watch: Williams Plurality Opinion Raises More Questions About The Admissibility Of Expert Testimony.

No Discernible Rule From Splintered Williams Opinion

In 2012, in Williams, the plurality opinion, written by Justice Alito, confronted a question that Justice Sotomayor had noted the year earlier: “the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence.” Williams v. Illinois, 567 U.S. _, 132 S.Ct. 2221, 2333 (2012) (Alito, J., plurality opinion) (quoting Bullcoming v. New Mexico, 564 U.S. _, 131 S.Ct. 2705, 2722 (2011)).

Since Williams, a 4 to 1 to 4 plurality decision, the lower courts have repeatedly noted that no controlling holding comes from the opinion. For example, the Seventh Circuit stated after Williams:

A plurality of the Court found no Confrontation Clause problem with this testimony, but the Court’s 4-1-4 division left no clear guidance about how exactly an expert must phrase its testimony about the results of testing performed by another analyst in order for the testimony to be admissible.

United States v. Maxwell, 724 F.3d 724, 727 (7th Cir. July 19, 2013) (citing Williams, 132 S.Ct. at 2270, 2277 (Kagan, J., dissenting); United States v. Turner, 709 F.3d 1187, 1189 (7th Cir. 2013) (explaining that “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”)). We have previously noted this uncertainty among the lower courts. See, e.g., Confrontation Clause: Continuing Uncertainty For Expert Testimony Following Williams v. Illinois.

The Second Circuit has also noted that it is difficult to identify a majority viewpoint in the plurality opinion:

We agree with Justice Kagan that this problem is intractable. No single rationale disposing of the Williams case enjoys the support of a majority of the Justices. Ordinarily, "[w]hen 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 the position taken by those members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977) (internal quotation marks omitted). But what is the narrowest ground in the disposition in Williams?
...

Williams does not, as far as we can determine, using the Marks analytic approach, yield a single, useful holding relevant to the case before us. It is therefore for our purposes confined to the particular set of facts presented in that case. We think it sufficient to conclude that we must rely on Supreme Court precedent before Williams to the effect that a statement triggers the protections of the Confrontation Clause when it is made with the primary purpose of creating a record for use at a later criminal trial.

United States v. James, 712 F.3d 79, 95-96 (2d Cir. March 28, 2013) (citations and footnote omitted). Other courts have reached the same conclusion. See, e.g., United States v. Duron-Caldera, _ F.3d _, _ n.4 (5th Cir. Dec. 16, 2013) (No. 12-50738) ("As Williams does not yield a 'narrowest' holding that enjoys the support of five Justices, it does not provide a controlling rule useful to resolving this case.") (citing James, 712 F.3d at 95; Jenkins v. United States, 75 A.3d 174, 184-89 (D.C. 2013) ("We now hold that the splintered decision in Williams, which failed to produce a common view shared by at least five Justices, creates no new rule of law that we can apply in this case.")).

Issue Arises In A Variety Of Contexts

The constitutional issue arises in a variety of contexts involving expert testimony. For example, FRE 703 recognizes 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.” The rule further provides that an expert may testify based on inadmissible evidence so long as the “facts or data” would be “reasonably rel[ied]” upon by experts in the field. Can the FRE 703 standard be reconciled with the Confrontation Clause so long as the expert is subject to cross-examination concerning the bases for the conclusion? Where the Confrontation Clause applies, is FRE 703 suspended, requiring the testimony of non-testifying witnesses on whose statements the expert relied upon?

One cluster of cases typically involves a certified lab report prepared for use in criminal proceedings, such as a lab analysis confirming the substance and quantify of drugs. These forensic reports, prepared by non-testifying experts, typically contain testimonial statements. In another scenario, multiple forensic analysts may be necessary to conduct a lab test. Can a supervisory expert review the results and testify about the conclusion or must all testing examiners also testify? Similarly, the issue also arises when the first expert has retired or is no longer available. See, e.g., Another Confrontation Clause Case Involving A Second Expert Who Testifies After The First Expert Is No Longer Available.

Pending Petitions Seeking Certiorari Review

Pending before the Supreme Court are a few petitions seeking certiorari review that may provide an opportunity to address the constitutional issue involving expert testimony. The next opportunity for the Court to consider these cases is at the next conference set for January 10, 2013.

One primary case involves United States v. Turner, 591 F.3d 928 (7th Cir. 2010), in which the Seventh Circuit upheld the expert testimony of a chemist concerning the nature of seized drugs as cocaine base even though the chemist did not conduct the underlying tests. After the Williams decision, the Supreme Court remanded the Turner case to apply the Williams ruling. See Turner v. United States, 133 S. Ct. 55 (2012) (No. 09-10231). On remand, the Seventh Circuit affirmed the conviction and admission of the expert testimony. United States v. Turner, 709 F.3d 1187 (7th Cir. 2013). See also Seventh Circuit Applies The Divided Williams v. Illinois Opinion To Expert Testimony.

Petitioner Turner is again seeking further review by the Supreme Court. In his petition, he contends that there is a split among the lower courts emerging and ripe for review. Turner Petition For A Writ Of Certiorari. The government argues that review is unwarranted in Turner since much of the expert opinion was "based on machine-generated data" and did not include testimonial statements under the Confrontation Clause; even assuming other portions of the testimony implicated the Confrontation Clause, any error was harmless beyond a reasonable doubt, as the circuit concluded. Turner Brief For The United States In Opposition. The Supreme Court has reset Turner for conference a couple of times. See Supreme Court Docket (No. 13-127). Whether this case is taken or joined with others will be known at a future conference by the Court, perhaps early in January 2014.

Comparable Confrontation Clause issues are raised in two cases from North Carolina and one from the Seventh Circuit, as noted in the Petitioner's Reply Brief, at 1 n.1 (noting that the Court "is currently considering at least three other petitions raising similar confrontation issues"); see also Maxwell Petition For A Writ Of Certiorari. In the Seventh Circuit case, no Confrontation Clause violation was found where a second testifying analyst considered analysis from a non-testifying first analyst since the testifying analyst arrived at “her own conclusions, especially since she never mentioned what conclusions” the first analyst “reached about the substance.” United States v. Maxwell, 724 F.3d 724, 727 (7th Cir. July 19, 2013). Further briefing is anticipated before a decision is made on the case. See Supreme Court Docket (No. 13-7394). See also Another Confrontation Clause Case Involving A Second Expert Who Testifies After The First Expert Is No Longer Available (reviewing Maxwell decision).

A second case is State v. Brewington, 743 S.E.2d 626, 628 (NC Sup. Ct. 2013) (No. 235PA10) (concluding there was no Confrontation Clause violation; while the agent's "lab notes were not admitted into evidence," the agent "presented an independent [expert] opinion formed as a result of her own analysis, not mere surrogate testimony" and the "Defendant was able to conduct a vigorous and searching cross-examination that exposed the basis of, and any weaknesses in, Agent Schell's opinion"). The question presented in the case is:

Whether the Confrontation Clause of the Sixth Amendment permits a forensic analyst who did not observe or participate in any of the forensic testing at issue to tell the jury the conclusions that another analyst set forth in a testimonial forensic report – so long as the testifying analyst offers an “independent opinion” that, based on reviewing the other analyst’s report and notes, she agrees with other analyst’s conclusions.

Brewington Petition For A Writ Of Certiorari. On December 16, 2013, the Court issued an Order extending time for the state to file a response to the petition by February 3, 2014. See Supreme Court Docket (No. 13-504).

A third case involves State v. Ortiz-Zape, 743 S.E.2d 156, 161-62 (NC Sup. Ct. 2013) (No. 329PA11) (holding that "admission of an expert's independent opinion based on otherwise inadmissible facts or data 'of a type reasonably relied upon by experts in the particular field' does not violate the Confrontation Clause so long as the defendant has the opportunity to cross-examine the expert") (citation omitted). The primary question presented in the case is:

Whether the Confrontation Clause of the United States Constitution permits an expert witness who did not observe or participate in any of the forensic testing at issue to testify based on the results of the testing performed by another analyst.

Ortiz-Zape Petition For A Writ Of Certiorari; see also Ortiz-Zape Appendix. The state's responsive brief to the petition for a writ of certiorari, which was filed November 21, 2013, was due on December 26, 2013. However, On December 6, 2013, the state filed a waiver of its right to respond. See Supreme Court Docket (No. 13-633). But on December 26, 2013 an amicus brief in support of the petitioner was filed.

Conclusion

It is not a matter of "if" but "when" the Supreme Court will reconsider the application of the Confrontation Clause to expert testimony that is based on statements of others who do not testify. Clearly, the plurality opinion from Williams has not furnished standards that the lower courts can consistently apply. The status quo, based on the current case law, seems counterproductive. The recent petitions for certiorari review appear to provide ripe case vehicles for the Supreme Court to hear and decide this issue. The Federal Evidence Blog will continue to monitor the developments in this important area concerning the intersection of the Confrontation Clause and expert testimony.

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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