Is the Court Ready to Revisit Crawford? Williams v. Illinois and the Confrontation Clause

On Monday June 18, 2012, the Supreme Court issued a decision in Williams v. Illinois that further clarified how to treat forensic evidence under the Sixth Amendment Confrontation Clause.  Under the Confrontation Clause, a defendant has the right “to be confronted with the witnesses against him.”  In 2004, the Court issued Crawford v. Washington and held that the Confrontation Clause forbids the prosecution from introducing hearsay statements that are “testimonial” unless the person who made those statements is called to the stand.  Hearsay statements are statements made out of court that are introduced to prove the matter asserted.  

Williams was convicted of rape based in part on scientific testimony matching his DNA to DNA found on the victim.  The expert testified based on a report and scientific testing that was prepared by someone else.  The Court in Williams was asked to decide whether this violated the Confrontation Clause by allowing testimony based on an outside statement––the report and scientific testing––that was introduced for the truth of the matter asserted––that Williams’ DNA was found on the victim.  In a fractured 4-1-4 decision, the Court ruled that this did not violate the Confrontation Clause.

The four Justice plurality concluded that this evidence was not admitted for the truth of the matter asserted, and therefore would not violate the Confrontation Clause.  Writing for the plurality, Justice Alito concluded that the evidence was more akin to a series of hypothetical facts that an expert could base an opinion on, but that the fact finder did not have to accept as true in order to evaluate that opinion. 

However, there were only four Justices who agreed with this rationale.  Justice Thomas wrote a separate concurrence, agreeing with the plurality only in judgment. Instead, Justice Thomas agreed with the dissenters that “[there is no meaningful distinction between disclosing an out-of-court statement so that a factfinder may evaluate the expert’s opinion and disclosing that statement for its truth.”   

The most interesting part of this decision, however, is the differing treatment the Justices give to potentially “testimonial” statements.  The dissent held with the decisions since Crawford and stated that the report was testimonial.  In Hammon v. Indiana, the Court found that if the primary purpose of the hearsay was to “establish or prove past events potentially relevant to a criminal prosecution,” it was testimonial and barred by Crawford.  The dissent followed this rationale in its opinion and concluded that the report in this case was testimonial.

Justice Alito’s plurality found that the report was not testimonial, as the report was not prepared to accuse any particular individual of a crime.  In fact, the plurality found, the DNA profile was more likely to exonerate the person whose DNA sample was provided unless that person was rapist.  This rationale, that to be testimonial the hearsay must be directed at a particular person, was used by these same four Justices in previous dissents to Confrontation Clause cases.

Justice Thomas ultimately concurred in judgment with the plurality, stating that the admission of the information from the report through an expert was not barred by the Confrontation Clause.  While the plurality based their opinion in part on whether the information qualified as hearsay, Justice Thomas found that the information contained in the report––and the report itself––was not testimonial because it was not solemn or formal enough.  Justice Thomas found that in order to be solemn or formal enough to establish hearsay as testimonial, the hearsay must be uttered or prepared under traditional settings such as formal interrogations, formal reports, or previous testimony.

This rationale was previously cited in a dissent to a Confrontation Clause case; in Hammon, the Court’s other eight justices rejected this reasoning. Yet, Justice Thomas’ concurrence is more narrowly written than the plurality’s opinion.  Because of this, Justice Thomas’ concurrence is the binding opinion. 

After this fractured opinion, what will come next for the Confrontation Clause?  Five Justices appear to question the rationale in Hammon, even if the plurality cited to it as binding precedent in a footnote.  While these five Justices do not agree on what standard should be applied when deciding if hearsay is testimonial, the door has been opened.  This will not be the last case on the definition of “testimonial.”

Bonnie Lindemann

Blogger, Criminal Law Brief