David C. Newell
“Another such victory and I come back to Epirus alone.” This is what King Pyrrhus of Epirus reportedly told one of his soldiers after defeating the Roman army at Heraclea.1 This exchange has since given rise to the term “pyrrhic victory” because King Pyrrhus’s army had won, but had also suffered irreplaceable losses while doing so.
The U.S. Supreme Court’s decision in Williams v. Illinois is a perfectly modern—though less violent—example of just such a victory. In Williams, the court upheld the admissibility of a DNA expert’s opinion that was based upon a DNA profile generated by a non-testifying forensic analyst over a Confrontation Clause objection.2 However, Justice Alito, the author of what prosecutors hoped would be a majority opinion, failed to cobble together a coalition of five justices that agreed upon a rationale that supported the court’s ruling. Worse, five judges on the court disagreed with the primary rationale for admissibility. What this leaves the bench and bar is a very confusing and weak opinion of questionable legal vitality. I hope that this article’s attempt to see what the judges saw can help tease out a few guiding principles to assist prosecutors going forward.
The facts are these
In 2000, a young woman in Chicago was abducted while she was walking home from work. The perpetrator forced the woman, L.J., into his car and raped her. Then he robbed her of her money and personal items before pushing her out into the street. L.J. ran home and reported the attack to her mother, who called the police. An ambulance took L.J. to the hospital to treat her wounds and perform a sexual-assault examination. A Chicago police detective collected the vaginal swabs and submitted them under seal to the Illinois State Police (ISP) lab. The ISP lab conducted a chemical test to confirm the presence of semen on the vaginal swabs before sending them to Cellmark Diagnostics Laboratory for DNA testing. Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs.
A forensic specialist at the ISP lab conducted a computer search to see if the Cellmark profile matched any of the entries in the state DNA database. The computer showed a match to a profile from a sample of Sandy Williams’s blood that had been taken when he was arrested on unrelated charges. Police conducted a lineup featuring Williams, and L.J. identified him as her assailant. The State indicted Williams for aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery. Williams chose to be tried before a state judge rather than a jury.3
At the bench trial, the State called an expert to testify to Williams’s DNA profile generated from the sample of Williams’ blood and another expert to confirm the presence of semen on the vaginal swab. The State also called Sandra Lambatos, an expert in forensic biology and forensic DNA analysis. She explained the process of generating DNA profiles and how they could be matched to an individual based upon the individual’s unique genetic code. The person who had performed this task at Cellmark, however, did not testify, though Lambatos stated it was a common practice within the scientific community for one DNA expert to rely upon a report from another.
When the State tried to question whether there was a computer match between “the male DNA profile found in the semen from the vaginal swabs of [L.J.]” and the “male DNA profile that had been identified,” Williams objected. The State explained that it was not trying to get into what the other lab did; rather, the State claimed it was simply asking about the testing Lambatos had done based upon the information she had received from Cellmark. The trial court allowed the question, and Lambatos answered that there was a match between the two profiles. Lambatos then testified that, based on her own comparison of the two DNA profiles, that Williams could not be excluded as a possible source of the semen identified on the vaginal swabs.4
The Cellmark report itself was never admitted or shown to the trial court. Lambatos did not quote or read from the report. She did not identify it as the source of any of any opinions that she expressed. She acknowledged that she had not observed or conducted any of the testing on the vaginal swabs. She also agreed that degradation of the sample was possible, but she strongly doubted it because there were no signs of degradation in the data making up the DNA profile.
The State argued that Williams’s Confrontation Clause rights were not violated because he had the opportunity to cross-examine the expert who had testified that there was a match between the DNA profiles produced by the ISP and Cellmark. The State invoked Rule 703 of the Illinois Rule of Evidence, which is consistent with Rule 703 of the Texas Rules of Evidence, to argue that an expert can base her opinion on otherwise inadmissible evidence. The trial court agreed, stating he would not exclude Lambatos’ testimony, which was “based upon her own independent testing of the data received from [Cellmark].” Notably, the question asked and answered was whether the known profile matched the profile generated from the sample collected from the vaginal swab. However, the trial court seemed to regard the question as merely the comparison of the two profiles without any assertion of fact that Cellmark had generated its profile from the sample sent from the ISP.
Before deciding whether Lambatos’ testimony violated the Confrontation Clause, Justice Alito conveniently summarized the court’s two previous cases dealing with scientific reports after Crawford v. Washington. First, he noted the court had held in Melendez-Diaz v. Massachusetts that the admission of certificates of analysis that were created for the sole purpose of providing evidence against a defendant violated the Confrontation Clause.5 Second, he noted that the court had held in Bullcoming v. New Mexico that a scientific report could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation.6 Moreover, he added that the court had rejected the use of a “surrogate” expert to testify about the lab results when that expert had not performed or observed the actual analysis. And finally, Justice Alito quoted Justice Sotomayor’s concurring opinion from Bullcoming to explain that the court had not previously addressed the question of whether an expert witness was asked for an independent opinion about underlying testimonial reports that were not themselves admitted into evidence. But now, according to Justice Alito, that question was squarely before the court.
Is DNA a witness
for the truth?
Justice Alito first justified the admission of Lambatos’ opinion that the known DNA profile of the defendant matched the DNA profile taken from the semen recovered from the vaginal swab by explaining that the opinion was not offered for the truth of the matter asserted. Joined by Chief Justice Roberts and Justices Breyer and Kennedy, Justice Alito explained that experts have long been allowed to voice an opinion based on facts without first-hand knowledge of those facts. Moreover, experts were permitted to answer hypothetical questions that included un-established facts under the common-law, a practice incorporated into the modern rules of evidence. According to Justice Alito, Lambatos merely agreed with the premise of the prosecutor’s question that the Cellmark DNA profile actually came from the sample submitted to them by the police; she was not making an assertion that that was true.
Five judges on the court disagreed with this argument. The four dissenters, led by Justice Kagan, felt that Lambatos had testified to the substance of the report in her opinion and had not given any indication that she was answering a hypothetical. But more problematically, Justice Thomas, who agreed with the result, wrote a concurring opinion rejecting this theory of admissibility as well. As Justice Thomas explained, the value of Lambatos’ testimony depended upon the truth of the assumptions in the question. However, everyone seemed to agree that there would be no Confrontation Clause issue had the prosecutor simply asked if the two profiles matched rather than including the “assumption” in the question that the DNA profile from Cellmark came from the sample submitted to them by the police. Thus, the plurality found the testimony to be purely opinion testimony and therefore admissible under the Confrontation Clause, while five judges regarded the testimony as primarily fact testimony, the latter of which raised a right of confrontation under the Sixth Amendment.7
Texas courts of appeals have apparently already drawn this distinction. For example, in Hamilton v. State, the San Antonio Court of Appeals held that a DNA expert who testified to a lab analyst’s findings violated the Confrontation Clause.8 Of course, in that case it appears the testifying DNA expert actually told the jury the results of the non-testifying expert’s DNA analysis. So, unlike the situation in Williams where there was some dispute as to whether the DNA expert had actually asserted a fact by agreeing to the prosecution’s question, the situation presented in Hamilton appeared more clear-cut. But the Hamilton court also held that the testifying DNA expert’s opinion based upon the DNA profile was not testimonial because it was based on data generated by scientific instruments operated by other scientists.9
While the dissent in Williams did not go so far as to suggest the Cellmark DNA profile was not testimonial because it was computer-generated data, Justice Kagan did observe, “There was nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lambatos’s expertise.”10 So, there seems to be some suggestion that the Supreme Court would uphold the admission of straight expert opinion testimony even if it was based on testimonial assertions or information generated by a non-testifying expert; the problem in Williams was the DNA expert mingling factual assertions (about things that only the non-testifying expert could know) into her opinion testimony.11
The 4-1-4 split
Justice Alito also suggested a second, independent basis for the admission of the testimony. According to Justice Alito, the DNA report from the non-testifying expert was non-testimonial because it was not prepared to accuse Williams or to create evidence for use at trial. Relying upon the “primary purpose test” announced in Michigan v. Bryant, Justice Alito explained that the DNA profile in this case was generated to help locate a criminal still at large. But in reaching this conclusion, the plurality grafts a new component onto the test, namely that testimonial statements have accused an identified defendant. Unlike the situations in Melendez-Diaz and Bullcoming where the defendant was known and the statements were designed to support guilt, here the primary purpose of sending the sample to Cellmark was to catch a dangerous rapist who was still at large, not obtain evidence for use against Williams who was not in custody or a suspect. According to Justice Breyer’s concurring opinion, it will be unlikely for a particular researcher to behave dishonestly if the researcher has no defendant-related motive.
As you might expect, five judges rejected this rationale as well. Justice Kagan, writing for the dissent, noted archly, “Where that test comes from is anyone’s guess.” She acknowledged that the court had previously evaluated whether a statement was testimonial by asking if the statement was made for the primary purpose of establishing “past events potentially relevant to later criminal prosecution,” but further noted that none of those cases required a showing that the statement must be meant to accuse a previously identified individual. Justice Thomas (remember, he concurred with the result that the testimony did not violate the Confrontation Clause) also rejected this new test, explaining that not only was there no support for it, but also that the record did not even support the new test because there was no ongoing emergency.
So what’s the rationale? If there is any agreement among the five judges who voted to uphold the admission of the testimony, it is in the bare assertion that the non-testifying expert’s report was non-testimonial.12 Justice Thomas wrote a separate concurring opinion upholding the admission of the testimony because it was non-testimonial, but for a different reason than the one posited by Judge Alito’s concurrence. According to Justice Thomas, Cellmark’s report was not a statement by a “witness” within the meaning of the Confrontation Clause because it lacked the solemnity of an affidavit or a deposition. The un-introduced report was not a sworn or certified declaration of fact. This position is consistent with Justice Thomas’s previous concurring opinion in Melendez-Diaz where he opined that the certificate of laboratory analysis was the functional equivalent of an affidavit. I suppose one could argue that the testimony in Williams was admissible because unlike Bullcoming, the State never offered the report nor had another expert read the results of another expert’s analysis. Therefore, the argument would go, the expert’s opinion including a recitation of facts observed by another expert was non-testimonial. However, given that there appears to be very little overlap between the rationale proposed by the plurality opinion and Justice Thomas’s concurring opinion (that no one joined), it is hard to see this opinion as any sort of retreat from Bullcoming.
This case is a mess. At first glance, the dissent’s snarky take-down of the plurality opinion benefits from its readability. But Justice Kagan’s opinion hides the fact that it moves the goal-posts from Bullcoming. As the plurality noted at the outset, this opinion considered a question unanswered by Bullcoming and it quotes Justice Sotomayor (who joined the dissent in Williams) to back it up. Yet the constant refrain from the dissent was that this case was, in fact, already decided by Bullcoming. In the end, Justice Breyer’s lone concurring opinion may sum it up best when he says that neither the plurality nor the dissent answers the issue in this case adequately.
So where does that leave prosecutors? As noted above in the discussion of Texas law, probably the same place they were before Williams was decided. The best solution is still re-testing, if possible, and calling an expert with direct knowledge of that testing. And, as Texas courts have already noted, having an expert testify as to an independent opinion without relating the substance of information provided by a non-testifying expert should be permissible. But as Williams reveals, the slightest hint of a factual assertion from a non-testifying witness may run afoul of the Confrontation Clause even when that assertion could be characterized as merely an expert’s opinion.
And while Justice Alito struggled mightily to uphold the introduction of the testimony in this case, he revealed that there is not a stable majority on the court that can agree on a coherent rationale to limit the categorical approach to the Confrontation Clause first announced in Crawford v. Washington. He also announced a new test for analyzing whether a statement is testimonial that is confusing and unlikely to enjoy any longevity. So while Judge Alito may have won this battle, he nevertheless appears to be losing the war.
1 Plutarch, Life of Pyrrhus, 21:8. Notably, Plutarch was later reclassified as a dwarf historian.
2 Williams v. Illinois, 132 S.Ct. 2221 (June 18, 2012).
3 Justice Alito seems to put a lot of stock in this aspect of the case under a theory that the trial court, as the trier-of-fact, would have properly understood the testimony in a way that the jury would not have. This seems suspiciously similar to the line of harm-analysis cases that held that trial courts presumably disregarded incompetent evidence. See e.g. Tolbert v. State, 743 S.W.2d 631 (Tex. Crim. App. 1988). Unfortunately, the Court of Criminal Appeals has since abandoned that presumption. Gipson v. State, 844 S.W.2d 738 (Tex. Crim. App. 1992). It seems unlikely that the Court of Criminal Appeals will find this distinction in Justice Alito’s plurality opinion persuasive.
4 She also said that the probability of the profile’s appearing in the general population was “1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” But the fact that she said the two profiles matched is all that really mattered for the purpose of the Confrontation Clause analysis.
5 Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009).
6 Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).
7 Notably, Justice Alito went so far as to suggest that this might have been a violation of the Confrontation Clause had the case been a jury trial rather than a bench trial because a trial judge would understand that the prosecution was merely asking a streamlined hypothetical question while a jury might not. As discussed above, this distinction is unlikely to be persuasive in Texas.
8 Hamilton v. State, 300 S.W.3d 14 (Tex. App.—San Antonio 2009, pet. ref’d.)
9 Other courts of appeals have reached the same conclusion that an expert opinion relying upon scientific data generated by a non-testifying expert does not violate the Confrontation Clause. See e.g. McWilliams v. State, 367 S.W.3d 817 (Tex. App.—Houston [14th Dist.] 2012, no pet. h.); Dreyer v. State, 2011 WL 193494 (Tex. App.—Beaumont Jan. 19, 2011, no pet.) (not designated for publication); Oliver v. State, 2010 WL 3307391 (Tex. App.—Houston [14th Dist.] Aug. 24, 2010, no pet.) (not designated for publication); But see Pollard v. State, 2012 WL 1986530 (Tex. App.—Waco May 30, 2012, no pet. h.) (holding that expert’s opinion testimony mixing his independent opinion with assertions of fact from a non-testifying DNA expert violated the Confrontation Clause).
10 The Dallas Court of Appeals rejected the reasoning of Hamilton and held that both a drug analysis report performed by a non-testifying expert and a testifying expert’s opinion based upon the data in that report violated Bullcoming. Soto v. State, 2011 WL 6188598 (Tex. App.—Dallas 2012, pet. dism’d) (not designated for publication). Assuming the dissent in Williams maintains its position that pure opinion testimony based upon otherwise testimonial statements does not violate the Confrontation Clause, that portion of Soto would seem to be erroneous going forward. Of course, it’s not a published opinion so it lacks precedential value, but since when has that ever stopped anyone?
11 And for those of you concerned about autopsies, Williams appears to be consistent with the Austin Court of Appeals opinion in Wood v. State, 299 S.W.3d 200 (Tex. App.—Austin 2010, pet. ref’d.). There, the court held the autopsy report by a non-testifying medical examiner was testimonial, but the testifying medical examiner could give his own independent opinion on the nature and causes of a victim’s injuries and death based in part upon a review of the autopsy report.
12 By way of analogy, this is kind of like what happened in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) where three judges rejected factual sufficiency on one rationale and two others rejected it for another.