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In 2004, the U.S. Supreme Court began a series of decisions reinvigorating criminal defendants’ right to confront their accusers. On Tuesday, the justices wrestled with whether that right is violated in a case involving expert witness testimony in a rape trial. Williams v. Illinois is the latest in what some scholars call the “confrontation clause revolution” led by Justice Antonin Scalia and which has divided the Court along unusual lines. On Tuesday, that division was once again reflected in the questions of justices who have dissented from this revolution, particularly justices Stephen Breyer and Samuel Alito. In Williams, a prosecution expert witness testified that a DNA profile prepared by Cellmark, an out-of-state lab, matched the DNA profile of the accused, Sandy Williams, that the expert witness had prepared and entered into the Illinois State Police database. The Cellmark report was never introduced as evidence and no one from that lab appeared to testify or to be cross-examined about its contents. Williams, who was convicted and sentenced to life in prison, unsuccessfully appealed, claiming that since the expert’s testimony was partially based on Cellmark’s testing, his confrontation rights were violated by not being able to cross-examine the person who developed the Cellmark profile. The state appellate courts ruled that the expert’s testimony about the Cellmark report had been admitted to show the underlying basis for her opinion, not to prove the truth of what was asserted in it. In that situation, the courts held, the confrontation clause does not apply because there is no hearsay statement. “In this case, Sandra Lambatos testified that Mr. Williams’ DNA matched a DNA profile that, according to assertions made by analysts from a Cellmark lab, was the genetic description of the purported offender,” said Illinois Assistant Appellate Defender Brian Carroll of Chicago. “Because no one from Cellmark appeared at Mr. Williams’ trial, Lambatos’ testimony conveying the testimonial statements from Cellmark violated Mr. Williams’ rights under the Confrontation Clause.” Justice Alito noted an amicus brief by the Manhattan District Attorney’s Office and the New York City Chief Medical Examiner’s Office stating that DNA analysis in that crime lab involves at least 12 technicians. “They break it down that way because it increases accuracy, it decreases the chance of any favoritism for the prosecution, and they say that: ‘It is impossible for us to bring all 12 of those technicians into court to testify in every case in which there is DNA evidence; and if we have to do that we will just not be able to use DNA evidence in court; we will have to rely on less reliable evidence,’ ” said Alito. Is that just a practical consequence of the Court’s decisions that has to be accepted, he asked Carroll. Williams’ counsel answered no, “because even in the worst case scenario described in the New York County’s brief, not all 12 people in that situation make testimonial statements and not all 12 people’s testimonial statements are presented at trial.” However, Justice Breyer voiced similar concerns about the possibility of requiring up to 10 analysts to testify if the Court agrees with Williams. “I see that as making a sea change in normal criminal law practices, and my motive is as I said: I fear it will push the system in the direction of relying on less reliable eyewitness testimony rather than more reliable technical laboratory DNA-type evidence.” Justice Scalia gave an assist to Carroll by interjecting, “It’s up to the prosecutor which of those 12 he wants to bring in, whether he wants to bring in all 12 or just one. If he thinks the jury will be sufficiently persuaded by bringing in just one, he can bring in just one, right?” Carroll agreed. But Chicago State’s Attorney Anita Alvarez and Deputy Solicitor General Michael Dreeben countered that Lambatos’ testimony satisfies the confrontation clause because she was the witness against Williams and the fact that she relied on material generated by Cellmark did not make Cellmark the witness against Williams. Lambatos was subjected to a lengthy cross-examination, added Alvarez. Alvarez told the justices that the key to the case was in how the DNA reports were used by the expert. “In this particular case, they were not used to prove the truth of the matter asserted. They were used for the limited purpose of explaining the expert’s opinion, and for the expert to testify to what she relied on in getting to her opinion.” But Justice Anthony Kennedy said that if the material on the DNA match was not admitted for the truth of the matter asserted, “then that testimony is irrelevant and meaningless.” Dreeben explained, “Everything that the judge heard, he filtered through Illinois State law that says the basis for the expert’s opinion doesn’t prove its truth. So the State gave up the right to say, `You can believe that this DNA report is reliable and trustworthy because Cellmark says so.’ The State doesn’t get that benefit; and as a result of not getting that benefit, it is not obligated to treat Cellmark as if it’s a witness.” The confrontation clause, he said, does not require the state to present a strong case. The Court’s confrontation clause revitalization began with Crawford v. Washington, in which the justices held that the state violated the confrontation right of a man accused of assault and attempted murder when it used the recorded statement of the accused’s wife during police interrogation as evidence against the accused. It continued in 2009 with Melendez-Diaz v. Massachusetts where the Court said the prosecution’s introduction of certificates by state lab analysts on the quantity of cocaine seized by police did not satisfy the clause. And last term in Bullcoming v. New Mexico, the justices held that the accused had the right to cross-examine the lab analyst who actually performed and certified the forensic report introduced at trial. Chief Justice John Roberts Jr. and justices Kennedy, Breyer and Alito dissented in Bullcoming. Marcia Coyle can be contacted at [email protected].

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