Oral argument: December 6, 2011
Appealed from: The Supreme Court of Illinois (July 15, 2010)
Petitioner, Sandy Williams, was charged with sexual assault on 22-year-old L.J in 2000. At trial, the prosecution called an expert witness to testify about DNA test results that identified Williams as the assailant. He moved to strike the evidence under the Sixth Amendment’s Confrontation Clause because the testifying witness had not performed the DNA tests. The court denied his motion and convicted Williams of sexual assault, kidnapping, and robbery. He contends that allowing an expert witness to testify regarding forensic reports when the witness did not prepare the reports violates the Confrontation Clause. Williams insists that he must have the opportunity to cross-examine the analysts that prepared the reports, particularly because DNA test results are prone to error or manipulation. Respondent, the State of Illinois, argues that allowing the expert witness to testify does not violate the Confrontation Clause because the witness was applying her own independent analysis and opinions concerning the report.
Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.
Does it violate the Confrontation Clause to allow an expert witness, who did not prepare the forensic DNA report, to give testimony concerning the report?
On February 10, 2000, 22-year-old L.J. walked home after her shift as a clothing store cashier in Chicago. See People v. Williams, 238 Ill. 2d 125, 129 (Ill. 2010). L.J. testified that as she walked by an alley, defendant Sandy Williams came up behind her, forced her into a car, and raped her. See id. L.J. ran home, and her mother called the police. See id. After L.J. described the rape to the officers, L.J. and her mother went to the emergency room where a doctor took samples for a criminal sexual assault evidence collection kit. See id. The hospital sent the kit to the Illinois State Police Crime Lab (“ISP”) for testing. See id.
On February 15, ISP performed tests on the contents of the sexual assault kit in a contamination-free environment and placed the evidence in a secure freezer. See id. at 130. On August 3, police arrested defendant Williams for an unrelated offense and took a blood sample from him. See id. at 131. A forensic scientist entered Williams’ deoxyribonucleic acid (“DNA”) profile into the crime lab database. See id. Meanwhile, ISP sent L.J.’s sexual assault kit to the Cellmark Diagnostic Laboratory (“Cellmark”) for a DNA profile of L.J.’s attacker. See id. at 130–31. On April 3, 2001, ISP forensic biologist Sandra Lambatos matched Williams’ DNA profile to the DNA obtained from the attacker’s blood sample in the sexual assault kit. See id. at 131. L.J. identified Williams in a lineup on April 17, and police arrested him for aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery. See id. at 128–29, 131.
At Williams’ bench trial in the circuit court of Cook County, Lambatos testified as an expert witness in forensic biology and DNA analysis. See id. at 131. Lambatos explained the DNA testing procedures and provided testimony on the reliability of those tests. See id. at 131–32. Lambatos stated that it is common practice for one DNA expert to rely on another DNA analyst’s records to complete the testing procedures. See id. at 132. Lambatos testified that although Cellmark used different procedures than ISP, the crime lab frequently relied on Cellmark’s DNA results. See id. Upon questioning by the prosecutor, Lambatos testified that she believed L.J.’s attacker’s DNA profile matched defendant Williams’. See id. at 132–133. The prosecution did not enter Cellmark’s DNA profile of L.J.’s attacker into evidence, and Lambatos did not read the contents of the Cellmark report during her testimony. See id. at 133.
Williams moved to strike Cellmark’s DNA test results as a violation of his Sixth Amendment right to confront the witnesses against him. See id. Williams also claimed that there was insufficient evidence that Cellmark’s test results were reliable. See id. at 133. The trial court denied the motion to strike, and the court found Williams guilty of all charges. See id. at 134. On appeal, the Appellate Court of Illinois for the First District rejected the defendant’s arguments of insufficient foundation of Lambatos’ testimony and violation of the right to confrontation. See People v. Williams, 385 Ill. App. 3d 359, 366–67, 370 (Ill. App. Ct. 2008). The Supreme Court of Illinois upheld the appellate court’s ruling, affirming that Cellmark’s lab report was not testimonial in nature, and, therefore, Williams’ Sixth Amendment rights were not violated. See Williams, 238 Ill. 2d at 150. Williams appealed to the Supreme Court of the United States, which granted certiorari on June 28, 2011 to consider whether allowing an expert witness to testify about DNA test results that witness did not obtain himself violates the Sixth Amendment’s Confrontation Clause.
Petitioner Sandy Williams contends that there are numerous instances of faulty DNA results resulting from numerous causes including mistakes in procedure and falsifying data. See Brief for Petitioner, Sandy Williams at 32–33. Williams argues that defendants deserve the right to confront the forensic analysts who produce the results. See id. The Innocence Network argues that the use of DNA evidence is subject to many errors, from labeling to testing procedures, and that not all errors are accidental. See Brief of Amicus Curiae in Support of Petitioner at 6, 10. According to the Innocence Network, because a defendant may face conviction on DNA evidence alone, it is important to allow that defendant to expose possible errors in testing that evidence. See id. at 2–3. Groups of criminal defense lawyers additionally argue that DNA lab analysts should not be exempt from confrontation because the possibility for lab error still exists even if the results came from an accredited lab. See Brief of Amici Curiae Public Defender Service for the District of Columbia and National Association of Criminal Defense Lawyers in Support of Petitioner at 23.
Illinois argues that there are adequate safeguards to protect against the misuse of expert testimony, including the defense’s chance for cross-examination and the use of competing experts. See Brief for Respondent, State of Illinois at 16. The United States Department of Justice (“DOJ”) agrees, noting the use of limiting instructions to the jury. See Brief of Amicus Curiae the United States in Support of Respondent at 28. According to the DOJ, the jury can determine the value of an expert’s testimony. See id. at 24. Forty-two states, the District of Columbia, and Guam (“States”) argue that juries need expert testimony to interpret the results of DNA tests, and assert that questions of the reliability of expert testimony go to the weight of the evidence. See Brief of Amici Curiae the State of Ohio, et al. in Support of Respondent at 16–18. See The National District Attorneys Association (“NDAA”) also notes that there are only fifteen documented instances of faulty DNA evidence in the past two decades, and states that this is not enough to consider DNA tests unreliable. See Brief of Amici Curiae NDAA in Support of Respondent at 38.
Williams argues that confrontation operates as a way to test both the honesty and competence of a forensic analyst. See Brief for Petitioner at 30. He asserts allowing Lambatos’ testimony would encourage the total abrogation of the right to confrontation. See id. at 31–32. The Innocence Network argues that allowing a witness to determine whether evidence is trustworthy minimizes the role of the jury in the fact-finding process. See Brief of Innocence Network at 13. The California Public Defenders Association (“CPDA”) argues that not requiring the analyst who performed the tests to testify will encourage hearsay testimony because it will be difficult for defendants to obtain the analyst who performed the tests to testify at trial. See Brief of Amici Curiae CPDA, et al. in Support of Petitioner at 4. According to the CPDA, prosecutors will also start to “cast” expert witnesses for those who can present the most convincing story. See id. at 11.
The States argue that courts have long accepted DNA tests as a type of expert testimony and should continue to do so. See Brief of States at 10. The NDAA notes that an expert testifying on DNA test results is not just repeating the results of that report, rather, that expert is still testifying to her own opinion of the facts in the report. See Brief of NDAA at 21. According to the States, the defense still has the chance to attack that testimony and its reliability through cross-examination and the presentation of its own evidence. See Brief of States at 24. The NDAA argues that labs test DNA in many steps, with different analysts in each step, and the time lost in requiring all those analysts to testify would seriously compromise forensic science work. See Brief of NDAA at 26. The NDAA argues that ruling in favor of Williams will restrict the general use of forensic tests, seriously burdening prosecutors, the criminal justice system, and the public. See id. at 37.
At issue is the Confrontation Clause, which provides that defendants have the right to confront the witnesses that are testifying against them in a criminal trial. See Brief for Petitioner at 1. Williams argues that expert witness Lambatos’ testimony regarding a DNA forensic report from Cellmark violated the Clause because Lambatos had no actual knowledge of how the report was prepared, and Williams could not cross examine the analyst who prepared the report. See id. at 12. Illinois argues that there was no violation of the Confrontation Clause because the expert witness offered her own independent testimony and was available for cross examination. See Brief for Respondent at 20. Moreover, Illinois argues that Cellmark’s DNA forensic report was not a testimonial statement that is subject to the Confrontation Clause. See id. at 25.
Williams contends that allowing the expert witness to testify about the DNA lab reports Cellmark generated violated the Confrontation Clause. See Brief for Petitioner at 15. He argues that forensic laboratory reports are testimonial and implicate the Clause, and, therefore, testimony regarding the laboratory reports is subject to Sixth Amendment protection. See id. at 12–13. Williams maintains that formal admission of a testimonial statement is not required for a violation of the Clause; introducing the statement through another person’s testimony is enough. See id. at 13. He insists that because the prosecution is using the statement for the same purpose in the two scenarios, the opportunity to cross-examine the witness is crucial in both situations. See id. at 17. Williams argues that Cellmark’s DNA lab report was introduced through the expert witness’ testimony and therefore triggers the protections of the Clause. See id. at 18. Moreover, he argues that there was insufficient opportunity for cross-examination because the expert witness presented the substantive information contained in the lab report but did not prepare the report herself. See id. Williams contends that the analysts who prepare laboratory reports should be subject to cross-examination. See id. at 27.
In response, Illinois argues that the Confrontation Clause is not implicated because Cellmark’s laboratory report was not a testimonial statement. See Brief for Respondent at 28. The state argues that the Clause defines testimony as a statement that establishes a fact. See id. at 26. Illinois maintains that the Clause must only refer to human witnesses because a defendant cannot examine a witness who is not a human being. See id. However, the state maintains that there was very little human involvement in the making of the DNA report because it was produced by an electrophoretogram. See id. at 27. Illinois insists that because a machine generates the data with very little human involvement, it is not a human assertion that is subject to the Confrontation Clause. See id. at 26–27. The state points out that the DNA report was composed of documents and presented in a manner that only other scientists could understand, indicating that the forensic report was prepared to assist in forensic analysis, and not for trial purposes. See id. at 30–31. Illinois argues that because the DNA report was not prepared for the purpose of litigation, it is not testimonial and therefore not subject to the Clause. See id. at 31–32. However, the state maintains that in the event these reports are testimonial, Williams had ample opportunity for cross-examination because Lambatos testified about her opinions of the DNA report. See id. at 20–21. Illinois argues that although the expert witness does not have firsthand knowledge regarding the preparation of these documents, her opinions and its reasonableness are still subject to cross-examination. See id. The state asserts that although lack of firsthand knowledge could weaken a prosecutor’s case, it does not violate the Confrontation Clause. See id. at 15.
Williams states that Cellmark’s lab reports constitute hearsay—or evidence being offered to prove the truth of the matter asserted—and are subject to the Confrontation Clause. See Brief for Petitioner at 20. He insists that the forensic lab reports were being offered for their truth because in order to determine the value of Lambatos’s opinion, the jury necessarily had to consider the bases for her opinion. See id. Williams maintains that by considering the bases of the witness’ opinion, the jury had to consider the truth of the forensic lab reports. See id. He argues that in order to judge the probative value of the witness’s testimony, the jury had to consider the DNA report for its truth. See id. at 22. Moreover, Williams asserts that because Lambatos was unfamiliar with how the forensic report was prepared, her opinion of the results of the DNA testing was completely dependent upon Cellmark’s analysts’ having accurately prepared the report. See id. at 26. Williams maintains that the expert’s testimony was being offered to establish the truth of the report. See id. at 22.
By contrast, Illinois argues that the expert merely relied on the data to form her own independent conclusion. See Brief for Respondent at 20. The state maintains that the witness did not violate the Confrontation Clause because her statements regarding the DNA report were limited to her own analysis. See id. at 22. Illinois emphasized the independence of the witness’ opinion by pointing out that the witness also addressed how her interpretations were different from the report. See id. at 20. The state also argues that the witness indicated that she relied very heavily on her own prior expertise in the field and did not rely solely on the report. See id. Moreover, Illinois points out that there was evidence that the judge considered the witness’ testimony that referred to the report only when it was directly relevant to her opinion. See id. at 22. Furthermore, the state insists that the judge did not rely on the report to determine guilt. See id. Illinois also argues that most of the expert witness’ statements referring to the report were the result of cross-examination. See id. at 21. The state claims that because references to the reports were made mostly during cross-examination, the statements do not implicate the Confrontation Clause. See id.
Other Procedural Safeguards
Williams claims that allowing the witness’s testimony without providing an opportunity for the defendant to question the analysts who prepared the report would create an exception to the Confrontation Clause because it would deprive the defendant of the opportunity to test the report’s reliability. See Brief for Petitioner at 30–31. He emphasizes that the Clause does not allow testimonial statements to enter into trial through the statements of another without the opportunity for cross-examination. See id. at 27. Moreover, Williams insists that evidence that is admissible under a rule of evidence does not remove a testimonial statement from the requirements of the Clause. See id. at 28. Williams maintains that the Clause guarantees a procedural process to ensure that the reliability of the evidence is assessed through cross-examination. See id. at 29.
In response, Illinois contends that allowing the witness’s testimony without giving the defendant an opportunity to question the analyst who prepared the report is not likely to create an exception to the Confrontation Clause because cross-examination is not the only safeguard used to ensure the proper use of expert testimony. See Brief for Respondent at 16. The state points to other procedural safeguards such as the ability of the defense to choose its own witnesses to testify on its behalf, the rules of evidence, and due process. See id. Illinois insists that these protections are sufficient to further safeguard against the misuse of expert testimony. See id. at 17. Furthermore, the state points out that the party’s own self-interest in choosing reliable experts also guards against misuse of experts. See id. at 17. Illinois also argues that even if the evidence that was admitted violated the Confrontation Clause, the error was harmless because there was other corroborating evidence, such as the victim’s identification of Williams during the line-up. See id. at 32.
Williams argues that allowing an expert witness to testify about forensic reports violates the Confrontation Clause because the expert did not prepare the reports. Williams insists that the Sixth Amendment guarantees his right to cross-examine the analysts who actually prepared the forensic DNA reports, especially because DNA tests are susceptible to error. Illinois, maintains that allowing the expert witness to testify concerning the lab reports is not a violation of the Clause because Williams was allowed ample opportunity to cross-examine the witness, and the witness testified to her own independent opinions. Williams argues that allowing the testimony in this case compromises every defendant’s right to confrontation, but Illinois maintains that defendants still have many safeguards, including the use of other expert witnesses or attacking the DNA test results through cross-examination.
Edited by: Natanya DeWeese
The authors would like to thank former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
Federal Evidence Review, Supreme Court Watch: Preliminary Questions Raised in the New Williams Confrontation Clause Case Involving Expert Testimony (July 5, 2011)
Jurist, Zach Zagger, Supreme Court to Hear Another Confrontation Clause Case on Admissibility of Lab Tests (June 28, 2011)