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Divided Supreme Court Says DNA Expert Can Testify About Profile Created By Others

Publication Date: 
June 18, 2012
Source: 
Criminal Law Reporter - BNA
Author: 
Hugh B. Kaplan

Professor Jeff Fisher discusses how the SCOTUS ruling on Williams v. Illinois was anything but simple, and how he believes there are really two holdings in the case.

The U.S. Supreme Court June 18 split three ways over the Confrontation Clause's limits on a prosecution expert's testimony regarding a DNA match. A divided majority of the court decided that the Constitution did not require a DNA expert's testimony of a match to be accompanied by the testimony of the analysts who conducted the testing that produced the perpetrator's profile relied upon by the expert. (Williams v. Illinois, U.S., No. 10-8505, 6/18/12)

The narrowest ground supporting the court's judgment affirming the defendant's conviction appeared in the opinion of Justice Clarence Thomas. Thomas concluded that the out-of-court assertions repeated by the expert were not “testimonial” for purposes of the Confrontation Clause because they were not “certified” or otherwise formalized. The rest of the justices split 4-4 on such issues as whether the statements at issue were even offered for their truth.

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“The bottom line of the decision is that the Confrontation Clause still applies to forensic evidence … but that five justices have decided that subsidiary reports or internal work product is not subject to the Confrontation Clause.” Professor Jeffrey Fisher

, Stanford Law School.

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Professor Jeffrey Fisher of Stanford Law School's Supreme Court Litigation Clinic, Stanford, Calif., argued Crawford, Melendez-Diaz, Bullcoming, and other Crawford cases in the Supreme Court. In an interview with BNA, Fisher said “the reasoning and the theoretical debate” between the plurality and the dissent in this case is much messier than the bottom line. “The bottom line of the decision is that the Confrontation Clause still applies to forensic evidence, that it still requires somebody from the lab to come in, but that five justices have decided that subsidiary reports or internal work product is not subject to the Confrontation Clause,” he said.

Fisher pointed out that most cases involving forensic reports are going to involve a single analyst who does the testing and prepares the report and who, under these Melendez-Diaz cases, must come into court. DNA analysis is different because it involves work product done by several analysts along the way, Fisher stressed. “The court has drawn a line …. When this work product is informal, people don't have to come in,” he said.

“The gist,” Fisher said, is that Thomas sees subsidiary analyses and internal work product in the form of statements, notes, and preliminary findings that work their way up through the network of forensic analysts as being “far enough away from the Confrontation Clause” that their authors do not have to come to court.

“There are really two holdings in this case, as I see it,” Fisher continued. “One holding is that you evade the Confrontation Clause by introducing testimonial evidence through the testimony of an expert and claiming that it is not for the truth of the matter. There are clearly five justices who say that, and that is very important. The actual holding that decides this case, though, is that the statement here from the [independent] lab was not testimonial.”

This latter holding would have been the same even if the independent lab's report had been directly introduced because Thomas, along with the four plurality justices, found that the report was not testimonial, Fisher stressed. “After today … if it is a multi-analyst test that involves several steps, then you certainly have to bring in the last analyst that writes the final report, and you bring in subsidiary analysts only to the point that their findings are sufficiently formalized,” Fisher explained.