Williams v. Illinois, No. 10-8505, __ U.S. __ (June 18, 2012).

ALITO, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined. BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion concurring in the judgment. KAGAN, J., filed a dissenting opinion, in which SCALIA, GINSBURG, and SOTOMAYOR, JJ., joined.

ALITO, J.

            In this case, we decide whether Crawford v. Washington, 541 U. S. 36, 50, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), precludes an expert witness from testifying in a manner that has long been allowed under the law of evidence. Specifically, does Crawford bar an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify? We also decide whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reliance on older, less reliable forms of proof.
            In petitioner’s bench trial for rape, the prosecution called an expert who testified that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of petitioner’s blood. On direct examination, the expert testified that Cellmark was an accredited laboratory and that Cellmark provided the police with a DNA profile. The expert also explained the notations on documents admitted as business records, stating that, according to the records, vaginal swabs taken from the victim were sent to and received back from Cellmark. The expert made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced. Nevertheless, petitioner contends that the expert’s testimony violated the Confrontation Clause as interpreted in Crawford.

            . . . .

            . . . An ambulance took L. J. to the hospital, where doctors treated her wounds and took a blood sample and vaginal swabs for a sexual-assault kit. A Chicago Police detective collected the kit, labeled it with an inventory number, and sent it under seal to the Illinois State Police (ISP) lab.
            . . . .

            During the period in question, the ISP lab often sent biological samples to Cellmark Diagnostics Laboratory in Germantown, Maryland, for DNA testing. There was evidence that the ISP lab sent L. J.’s vaginal swabs to Cellmark for testing and that Cellmark sent back a report containing a male DNA profile produced from semen taken from those swabs. At this time, petitioner was not under suspicion for L. J.’s rape.
            Sandra Lambatos, 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 produced by the lab from a sample of petitioner’s blood that had been taken after he was arrested on unrelated charges on August 3, 2000.

            . . . .

            . . . [T]he State offered Sandra Lambatos as an expert witness in forensic biology and forensic DNA analysis. On direct examination, Lambatos testified about the general process of using the PCR and STR techniques to generate DNA profiles from forensic samples such as blood and semen. She then described how these DNA profiles could be matched to an individual based on the individual’s unique genetic code. In making a comparison between two DNA profiles, Lambatos stated, it is a “commonly accepted” practice within the scientific community for “one DNA expert to rely on the records of another DNA expert.” App. 51. Lambatos also testified that Cellmark was an “accredited crime lab” and that, in her experience, the ISP lab routinely sent evidence samples via Federal Express to Cellmark for DNA testing in order to expedite the testing process and to “reduce [the lab's] backlog.”  . . . To keep track of evidence samples and preserve the chain of custody, Lambatos stated, she and other analysts relied on sealed shipping containers and labeled shipping manifests, and she added that experts in her field regularly relied on such protocols.  . . . .
            Lambatos was shown shipping manifests that were admitted into evidence as business records, and she explained what they indicated, namely, that the ISP lab had sent L. J.’s vaginal swabs to Cellmark, and that Cellmark had sent them back, along with a deduced male DNA profile.  . . . The prosecutor asked Lambatos whether there was “a computer match” between “the male DNA profile found in semen from the vaginal swabs of [L. J.]” and “[the] male DNA profile that had been identified” from petitioner’s blood sample.  . . . .

            . . . .

            Lambatos answered “Yes.”  . . . Lambatos then testified that, based on her own comparison of the two DNA profiles, she “concluded that [petitioner] cannot be excluded as a possible source of the semen identified in the vaginal swabs,” and 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.” . . . Asked whether she would “call this a match to [petitioner],” Lambatos answered yes, again over defense counsel’s objection.  . . . .
            The Cellmark report itself was neither admitted into evidence nor shown to the factfinder. Lambatos did not quote or read from the report; nor did she identify it as the source of any of the opinions she expressed.

            . . . .

            We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the Sixth Amendment.
            As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions, that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable.  . . .The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial.

BREYER, J., concurring:

            This case raises a question that I believe neither the plurality nor the dissent answers adequately: How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians? In this context, what, if any, are the outer limits of the “testimonial statements” rule set forth in Crawford v. Washington, 541 U. S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)? Because I believe the question difficult, important, and not squarely addressed either today or in our earlier opinions, and because I believe additional briefing would help us find a proper, generally applicable answer, I would set this case for reargument. In the absence of doing so, I adhere to the dissenting views set forth in Melendez-Diaz v. Massachusetts, 557 U. S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009), and Bullcoming v. New Mexico, 564 U. S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). I also join the plurality’s opinion.

THOMAS, J., concurring:

            I agree with the plurality that the disclosure of Cellmark’s out-of-court statements through the expert testimony of Sandra Lambatos did not violate the Confrontation Clause. I reach this conclusion, however, solely because Cellmark’s statements lacked the requisite “formality and solemnity” to be considered “‘testimonial’” for purposes of the Confrontation Clause. See Michigan v. Bryant, 562 U. S. ___, ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93, 120 (2011)(THOMAS, J., concurring in judgment). As I explain below, I share the dissent’s view of the plurality’s flawed analysis.

            . . . .

            . . . [S]tatements introduced to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay purpose. There is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert’s opinion and disclosing that statement for its truth. “To use the inadmissible information in evaluating the expert’s testimony, the jury must make a preliminary judgment about whether this information is true.” D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: A Treatise on Evidence: Expert Evidence §4.10.1, p. 196 (2d ed. 2011) (hereinafter Kaye). “If the jury believes that the basis evidence is true, it will likely also believe that the expert’s reliance is justified; inversely, if the jury doubts the accuracy or validity of the basis evidence, it will be skeptical of the expert’s conclusions.” Ibid.  [Footnote omitted.]
            . . . .

            Having concluded that the statements at issue here were introduced for their truth, I turn to whether they were “testimonial” for purposes of the Confrontation Clause. In Crawford, the Court explained that “[t]he text of the Confrontation Clause . . . applies to ‘witnesses’ against the accused–in other words, those who ‘bear testimony.’”  . . . “‘Testimony,’” in turn, is “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’”  . . . In light of its text, I continue to think that the Confrontation Clause regulates only the use of statements bearing “indicia of solemnity.” Davis v. Washington, 547 U. S. 813, 836-837, 840, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006) (THOMAS, J., concurring in judgment in part and dissenting in part).  . . . Accordingly, I have concluded that the Confrontation Clause reaches “‘formalized testimonial materials,’” such as depositions, affidavits, and prior testimony, or statements resulting from “‘formalized dialogue,’” such as custodial interrogation.  . . . .

            Applying these principles, I conclude that Cellmark’s report is not a statement by a “witnes[s]” within the meaning of the Confrontation Clause. The Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. See Report of Laboratory Examination, Lodging of Petitioner. The report is signed by two “reviewers,” but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. See ibid. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation.
            The Cellmark report is distinguishable from the laboratory reports that we determined were testimonial in Melendez-Diaz, 557 U. S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314, and in Bullcoming v. New Mexico, 564 U. S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011). In Melendez-Diaz, the reports in question were “sworn to before a notary public by [the] analysts” who tested a substance for cocaine. 557 U. S., at 308, 129 S. Ct. 2527, 174 L. Ed. 2d 314. In Bullcoming, the report, though unsworn, included a “Certificate of Analyst” signed by the forensic analyst who tested the defendant’s blood sample. 564 U. S., at ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610, 617. The analyst “affirmed that ‘[t]he seal of th[e] sample was received intact and broken in the laboratory,’ that ‘the statements in [the analyst's block of the report] are correct,’ and that he had ‘followed the procedures set out on the reverse of th[e] report.’” Ibid.
            The dissent insists that the Bullcoming report and Cellmark’s report are equally formal, separated only by such “minutia” as the fact that Cellmark’s report “is not labeled a ‘certificate.’” Post, at 22-23 (opinion of KAGAN, J.). To the contrary, what distinguishes the two is that Cellmark’s report, in substance, certifies nothing. See supra, at 9. That distinction is constitutionally significant because the scope of the confrontation right is properly limited to extrajudicial statements similar in solemnity to the Marian examination practices that the Confrontation Clause was designed to prevent.  . . . . Contrary to the dissent’s suggestion, acknowledging that the Confrontation Clause is implicated only by formalized statements that are characterized by solemnity will not result in a prosecutorial conspiracy to elude confrontation by using only informal extrajudicial statements against an accused. As I have previously noted, the Confrontation Clause reaches bad-faith attempts to evade the formalized process.  . . . Moreover, the prosecution’s use of informal statements comes at a price. As the dissent recognizes, such statements are “less reliable” than formalized statements, post, at 24, and therefore less persuasive to the factfinder.  . . . .

KAGAN, J., dissenting:

            Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert witness who had no idea how they were generated. That approach–no less (perhaps more) than the confrontation-free methods of presenting forensic evidence we have formerly banned–deprived Williams of his Sixth Amendment right to “confron[t] . . . the witnesses against him.”
            The Court today disagrees, though it cannot settle on a reason why. JUSTICE ALITO, joined by three other Justices, advances two theories–that the expert’s summary of the Cellmark report was not offered for its truth, and that the report is not the kind of statement triggering the Confrontation Clause’s protection. In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dissent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.
            That creates five votes to approve the admission of the Cellmark report, but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. JUSTICE THOMAS’s concurrence, though positing an altogether different approach, suffers in the end from similar flaws. I would choose another path–to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court’s fractured decision.

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