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Does Confrontation Clause bar expert DNA testimony?

The justices of the U.S. Supreme Court have already looked at the issue of DNA evidence in criminal cases, with several rulings restricting prosecutors’ ability to admit such data without calling the lab analysts who prepared the tests to testify.

Tuesday, the Court took another look at the issue – this time considering whether expert testimony based in part on DNA database matches is constitutionally barred.

The defendant in Williams v. Illinois, Sandy Williams, gave a blood sample after being arrested on drug charges. The sample was sent to Cellmark Diagnostic Laboratory, a private lab, where it was analyzed and entered into a police database.

A computer matched it to DNA collected from a 22-year-old woman who was abducted and raped earlier in the year.

Williams was charged with sexual assault, aggravated kidnapping and aggravated robbery. At trial, a state forensic biologist was permitted to testify that the DNA profile generated by Cellmark from the rape kit matched the defendant’s DNA profile even though she did not conduct the DNA analysis.

Williams objected to the testimony, saying his Confrontation Clause rights were violated because he could not cross-examine whoever created the Cellmark DNA profile from the rape kit.

The judge overruled his objection, and Williams was convicted and sentenced to life in prison.

He appealed, but the Illinois Appellate Court and the Illinois Supreme Court both affirmed his conviction.

Williams’ petition for certiorari was granted by the Supreme Court.

‘A genetic description’

Brian W. Carroll of the Office of the State Appellate Defender in Chicago represented Williams. He urged the Court to take the same approach it did in Melendez-Diaz v. Massachusetts (a 2009 case requiring criminal lab report analysts to be available at trial for cross-examination) and Bullcoming v. New Mexico (a 2011 ruling that laboratory reports cannot be admitted through the in-court testimony of an analyst who did not personally perform the test.)

The Cellmark lab test match was essentially testimony, “a genetic description of the purported offender” that gave the defendant the right to cross-examination, Carroll argued.

Justice Samuel A. Alito Jr. pointed out the testimony of the biologist was that of an expert.

“Hasn’t it long been accepted that experts may testify to the facts that form the basis for their opinions [because] that information is not being introduced to prove the truth [of] those underlying facts – only that those are the facts that the expert has relied on in reaching an opinion?” Alito asked.

But in this case Carroll argued, “the expert’s opinion depends on those statements being considered true.”

Justice Antonin Scalia jumped in to help Carroll make his point.

“It’s one thing for an expert to testify about a hypothetical. ‘Assuming this, Mr. Expert, what would the result be?’ [Here] she testified she had a match between what she had done and the DNA [analyzed] by somebody else,” Scalia said.

At this point, arguments went on for several minutes between the justices, with Carroll barely getting in a word edgewise.

Justice Stephen G. Breyer wondered if an exception for expert testimony, as in the hearsay rules, would “have the virtue of not requiring ten people to come in and testify” to admit DNA evidence.

“You are not objecting to hearsay, are you, counsel?” Scalia said to Carroll, but in response to Breyer. “You are objecting to a violation of the Confrontation Clause, which is quite different.”

“Yes, but [according to an evidence treatise] the Confrontation Clause simply encapsulated the hearsay rule,” Breyer said.

“We have said the contrary, though, haven’t we?” Scalia said, drawing laughter.

Justice Ruth Bader Ginsburg pointed out that only the Cellmark analyst who performed the first DNA test would be needed to solve the Confrontation Clause issue.

“One person, not 10,” she said, referring to Breyer’s point.

“Well, 10 is not a far-fetched hypothetical,” Alito interjected, pointing to an amicus brief identifying cases where defendants are linked to multiple crimes through DNA.

Machine-generated chart

Cook County State’s Attorney Anita Alvarez argued on behalf of the state that experts should be allowed to base opinions on information without requiring the preparer of each piece of information to be called into court.

“An expert can always testify about the material that [she] relied on, whether that material is ever admitted into evidence [or] could never be admitted into evidence,” Alvarez said.

“[But] she said: I relied on material that was a swab containing the DNA of this particular individual,” Scalia said. “And she did not know that.”

“She testified that she relied on those materials,” Alvarez replied.

“She didn’t know if they had incompetent people” at the lab conducting the first test, Scalia countered. “[In Bullcoming] the reason they didn’t bring in the lab technician to testify was that he had been fired in the interim for some reason which we didn’t know.”

“[The witness] did testify both on direct examination and cross-examination that Cellmark was an accredited lab,” Alvarez noted.

“In Bullcoming, we said that was not sufficient,” said Justice Anthony M. Kennedy.

Alvarez noted that the previous report wasn’t being introduced into evidence.

“[The data] is a machine-generated chart that to the naked eye of a trier-of-fact means absolutely nothing unless an expert actually interprets that,” Alvarez said. And [the expert] testified to how she interpreted that.”

“I don’t know how that’s any different from Bullcoming and Melendez-Diaz,” Kennedy said.

Michael Dreeben, deputy solicitor general arguing as amicus in support of the state, argued that questions of reliability could be resolved by allowing evidence as to the reliability of the work of the outside lab.

But Scalia was unmoved.

“You’re telling me that the Confrontation Clause allows you to simply say, ‘We’re not going to bring in the person who did the test. We are simply going to say this is a reliable lab’?” he said. “I don’t know how that complies with the Confrontation Clause.”

A decision from the Court is expected later this term.

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