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San Francisco DUI Lawyer - Confrontation Cases

Posted on in DUI

Williams v. Illinois (June 18, 2012) (Docket 10-8505)

Prosecutors are precluded by the Confrontation Clause from introducing out-of-court “testimonial" statements without putting the declarants on the stand, Crawford v. Washington (2004), and this includes forensic reports certifying incriminating test results. Melendez-Diaz v. Massachusetts (2009). Furthermore, such reports may not be admitted into evidence via a testifying supervisor or other “surrogate" witness in lieu of having the actual author of the report testify. Bullcoming v. New Mexico (2001).

With these precedents, the high Court granted certiorari in Williams v. Illinois (June 18, 2012) (Docket 10-8505) to determine whether the Confrontation Clause also bars an expert witness from testifying about the results of testing performed by a non-testifying analyst where the actual report itself is never introduced. (If allowed, one can readily envision prosecutors in DUI cases having expert witnesses opine guilt of the accused with reference to an otherwise inadmissible alcohol or drug test report). The expert was a forensic analyst who opined that DNA from vaginal swabs of a rape victim matched the DNA obtained from the Defendant, based in part on a DNA profile performed by someone else at Cellmark.

The Court handed down a deeply fractured 4-1-4 decision, with the Justice in the middle (Justice Thomas) clearly agreeing with the four dissenters on the salient issue, but concurring with the plurality to affirm the defendant’s conviction. Justice Breyer, for added measure, wrote his own concurring opinion. He expressed a desire for additional briefing and argument to try and determine “the outer limits of the ‘testimonial statements’ rule set forth in Crawford " in light of the “panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians[.]" Not getting what he wanted, Justice Breyer stayed with the dissenting views expressed in Melendez-Diaz and Bullcoming . Clearly, Justice Breyer remains troubled by the practical problems he sees with strict enforcement of the Confrontation Clause , a logically expressed concern (see the Appendix to his opinion) that has led him to stray from his more usual liberal mooring on the Court.

Four justices (Justices Alito, Roberts, Breyer, and Kennedy) opined that the DNA test result was permissibly referenced by the expert witness because (a) it was not offered for the truth of the matter asserted; and (b) the Cellmark report was not “testimonial" (essentially because it was not prepared for the purpose of litigation).

[E]ven if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation…

The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used againstvpetitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory."

- Justice Alito

Justice Thomas concurred with the conclusion that the report was not testimonial, concluding that it lacked the formality and solemnity of the reports at issue in Melendez-Diaz and Bullcoming (this was his basis for voting to affirm the lower court’s ruling and defendant’s conviction). However, he simultaneously chastised the plurality opinion for attempting to “carve out a Confrontation Clause exception for expert testimony that is rooted only in legal fiction." He sided with the four dissenters (Justices Kagan, Ginsburg, Sotomayor, and Scalia) in their view that “testimonial" hearsay may not be admitted through the back door under the expert witness exception found in the many state evidence codes. The dissenters characterized the matter presented as an “open-and-shut" case under the Court’s Confrontation Clause precedents (noting that the expert witness had no idea how the Cellmark test results were generated).

If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it.

- Justice Kagan

A careful reading of Justice Thomas’s concurring opinion in Williams should preclude trial courts from admitting incriminating forensic alcohol and drug test results into evidence in DUI/DWI cases unless the actual analyst testifies. Attempts to make the reports appear less formal so as to gain admissibility should fail, since “technically informal statements" are still “testimonial" when “made to evade the formalize process." Williams (concurring opinion by J. Thomas, fn 5). Writing for the dissenters, Justice Kagan makes a compelling argument as to why the Cellmark report was “testimonial" and should have been excluded.

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