Williams v. Illinois, the newest Confrontation Clause case from the Supreme Court, leaves unresolved some key issues on the Confrontation Clause and its applicability to lab reports. Some things to note:
- Williams has no majority opinion
- It is very fact specific
- A similar case with a better set of facts might go the other way
Stated with a bit more specificity, the plurality opinion is tied closely to the facts of the case. The two concurring justices believed that there were too many loose ends to state a definitive rule. Those two justices could possibly vote with the dissenters in a different case with more definitive facts.
Basis for the Opinion in Williams
- The expert testimony did not violate the confrontation clause because the expert did not testify to the truth of the matter asserted. Rather, she simply relied upon information about the profile of the evidentiary DNA to answer hypothetical questions about the likelihood of a person’s DNA profile being exactly the same as someone else’s. Since such testimony is neither substantive nor probative, it does not implicate the Confrontation Clause. Scott Greenfield calls this the “truthy” part of the opinion.
- The profile of the evidentiary DNA, nevertheless, was not testimonial because law enforcement did not profile the DNA in the semen to strengthen the State’s case. Rather, the evidentiary DNA was profiled with an aim to later identify a suspect from the world of unknown people whose profiles were in a database. In a case where a suspect has been already identified, we have a different matter.
And the case is tied to some fairly quirky facts, each of which is material to how the decision was made.
In Williams a woman was raped in Illinois by an unknown assailant. After a rape kit was done, a scientist identified semen on the vaginal swabs. Law enforcement sent the sample to Cellmark Diagnostics Laboratory in Maryland for DNA testing. Cellmark conducted tests and produced a report with a DNA profile. Illinois law enforcement took the profile and compared it to a database of known DNA samples created to take the DNA profile of arrestees. The evidentiary DNA profile matched that of the petitioner. The victim then successfully picked the petitioner out of a lineup
The petitioner was tried by a judge. The victim identified the petitioner in open court. Then the State relied upon three forensic witnesses.
- The first testified that he had identified the presence of semen in the vaginal swab.
- The second testified that he drew the blood from the petitioner, and that he entered the profile into the database.
- The third testified how DNA profiles are developed from forensic evidence and how those profiles could be matched based upon the individual’s unique DNA code. She testified about Cellmark’s accreditation and how it is common for one DNA expert to rely upon another DNA expert. She talked about how the chain of custody was maintained in the shipping of the evidentiary DNA to Cellmark lab. Then, she testified about how she matched the profile from the database to the profile she obtained from Cellmark and how the profiles were the same. The Cellmark report was neither admitted into evidence nor shown to the factfinder. She did not quote from it or identify it as the source of any of the opinions she expressed.
For the plurality, there were several key facts that rendered the testimony not a violation of the Confrontation Clause
- Cellmark’s report was not admitted for the truth of the matter asserted. Unlike the report in Bullcoming that was admitted for its truth, the Cellmark report was never even admitted. The witness merely testified about a DNA profile she received from Cellmark and how it matched that of the DNA profile contained in the State database for the petitioner.
- No possibility of cross-contamination, and no testimonial analysis at Cellmark For the Court in Williams, it was important that Cellmark tested the semen without any particular suspect in mind. The test was not performed to incriminate or to strengthen the State’s case against a known suspect. And, for the plurality, it was important that “the admissible evidence left little room for argument that the sample tested by Cellmark came from any source other than the victim’s vaginal swabs.” In a case where law enforcement tests the DNA of an actual suspect for comparison with evidentiary DNA or where multiple DNA samples are on location at the same lab at the same time, the testing would be testimonial and the possibility of cross-contamination would be a possible area for cross-examination.
- Bench Trial versus Jury trial For the plurality, this distinction was key. From the plurality:
This case, however involves, a bench trial (author’s emphasis) and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter aserted. In a jury trial, the Cellmark profile might had been excluded or it would likely have been referenced but with a mandatory limiting instruction “that out-of-court statements cannot be accepted for their truth and that an expert’s opinion is only as good as the independent evidence that establishes its underlying premises.” And, if the State could not independently corroborate the foundational facts, then the expert’s opinion would be accorded no weight.
So, the advice for defense attorneys going forward should this issue arise — insist on a jury trial. With a jury present, we have a whole new ballgame.
Justice Breyer’s Appendix
There is an appendix to his concurring opinion that describes all of the steps in the DNA profiling process. This Appendix describes what happens in the process. The appendix is very helpful to practitioners looking to figure out the process or in trying to figure out which witnesses was not called by the State
In conclusion, much is left unresolved. A case where (a) a suspect’s DNA is tested for comparison with evidentiary DNA, (b) where all samples are tested together in the same lab; and (c) where the case is tried before a jury would appear to be a fantastic candidate for cert.