Williams plurality relies on inherently unreliable forensic evidence: confrontation clause analyses across the nation in disarray.

• Author: Yasin, Mohammad A.

"[T]hat's the crux of this evidence, and you're telling me that this Confrontation Clause allows you to simply say, well, we 're not going to bring in the person who did the test; we are simply going to say, this is a reliable lab. I don't know how that complies with the Confrontation Clause." (1)

1. INTRODUCTION

   In a widely fractured decision, the Supreme Court held that a defendant's constitutional right to confrontation was not violated when an expert provided testimony concerning a DNA profile linking the defendant to his accused crime. (2) In Williams v. Illinois, (3) the Court articulated three different reasons as to why the expert testimony, in the absence of testimony from the primary analyst, did not violate the Confrontation Clause. (4) The plurality decision in Williams produced significant inconsistencies among courts analyzing the issue of expert testimony and defendants' right to confront their accusers. (5)

   While the Court deemed its holding consistent with precedent, it was arguably a successful attempt to limit defendants' confrontation rights under established law. (6) Before Williams, the Court definitively acknowledged the Confrontation Clause's importance under the Sixth Amendment. (7) Now, with regard to forensic evidence, state courts are left with the opportunity to decide whether a certain situation violates a defendant's confrontation rights under Williams and other prior Supreme Court precedent. (8)

   Remarkably, the Williams plurality understood that it would "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 rel[y] on older, less reliable forms of proof." (9) The plurality, in deeming forensic crime labs inherently reliable, went against prior Court opinions, thus affording greater weight to the prosecution than defendants' rights under the Confrontation Clause. (10) The Williams dissent noted that abandoning cross-examining experts because their testimony is inherently trustworthy is akin to abandoning jury trials because of defendants' undeniable guilt. (11) In light of forensic evidence's unreliability, surrogate testimony relating to DNA evidence should face more, not less, scrutiny from courts. (12)

   This Note will begin by explaining defendants' right to confrontation and discussing the evolution of the Confrontation Clause through Crawford, Williams, and other seminal cases. (13) The Note will then discuss the lack of uniformity in Confrontation Clause analyses across the country due to the fractured Williams decision. (14) Next, it will examine the unreliability of crime labs and forensic evidence by illustrating crime lab scandals occurring in multiple states. (15) The analysis argues that states should reject the Williams notion of inherent DNA testing reliability, and provide defendants with better protection by requiring the primary analyst to testify to satisfy the Confrontation Clause. (16)

2. HISTORY

   1. Right to Confrontation

      The Confrontation Clause of the Sixth Amendment demands that criminal defendants have the right to confront their accusers. (17) Unless a witness is unavailable and there was a prior opportunity for cross-examination, the defendant must be able to confront the witness whose statements qualify as testimonial. (18) The confrontation right's historical origins, and the requirement that the prosecution demonstrates a witness's unavailability, stem from the infamous trial of Sir Walter Raleigh. (19) The right of confrontation is critical for assessing the reliability of evidence against the accused. (20) Confrontation is also fundamental in exposing errors in testimony and ensuring a fair trial. (21) The Confrontation Clause is only implicated when a court deems an out-of-court statement "testimonial." (22)

   2. Crawford and the Confrontation Clause Trilogy

      In 2004, the Supreme Court abrogated Ohio v. Roberts, (23) which utilized an "indicia of reliability" test in determining whether out-of-court statements violated a defendant's right to confrontation. (24) The Crawford Court opined that the reliability factors were unpredictable and applied inconsistently, holding that where testimonial statements were at issue, a confrontation was the "only indicium of reliability sufficient to satisfy constitutional demands...." (25) While the Court described the core class of testimonial statements that the Confrontation Clause covers, it failed to define what constitutes "testimonial" statements. (26)

      Five years after the Crawford opinion in a five-to-four decision, the Court held that certificates of state laboratory analysts qualified as affidavits and fell within the "core class" of testimonial statements. (27) In its holding, the Court criticized the dissent's suggestion that confrontating of forensic analysts would be of little value because such testimony was the result of neutral scientific testing. (28) The Melendez-Diaz opinion cited a study supporting its argument that the scientific testing at issue was not as neutral or reliable as the dissent suggested. (29) In light of forensic analysis's inherent unreliability, the Court determined that one way of ensuring accurate forensic testing is the right to confrontation. (30) The Court likened an analyst providing inaccurate test results to an untruthful eyewitness, concluding that culprits may reconsider their testimony when under oath in court. (31)

      In another five-to-four decision, the Court held that the admission of a DNA report through a surrogate witness violated the defendant's right to confront the primary analyst. (32) In this case, the Court deemed the lab report testimonial because it was sufficiently formal and its primary purpose was to target the accused in a criminal proceeding. (33) The Court re-emphasized the holdings in Crawford and Melendez-Diaz, stating that any purported reliability of an analyst's report does not dispense with defendants' rights under the Confrontation Clause. (34) Furthermore, the Court reiterated that the constitutional requirement of confrontation may not be disregarded at the convenience of the court and prosecution. (35)

      Nearly a year after Bullcoming, the Court, in another fractured decision, seemed to conflict with prior precedents when it determined that a DNA report was nontestimonial in nature, thus, resulting in no Confrontation Clause violation. (36) Notably, Justice Thomas's concurring opinion partially agreed with the dissent, finding the plurality's analysis faulty. (37) The Williams plurality contended that the forensic report may be considered testimonial if it was introduced for the truth of the matter asserted, its primary purpose was to accuse a targeted individual, or it met some degree of formality; this has led to great confusion and inconsistency in Confrontation Clause analyses across the nation. (38) Williams has left lower courts with the decision to analyze forensic reports' admissibility either under one of the three tests offered by the plurality or pursuant to prior Court precedent. (39)

      Remarkably, the opinion itself involved a substantial discussion about the reliability of DNA testing and the burden imposed on prosecutors. (40) The dissent largely criticized the plurality's notions of reliable DNA testing as inconsistent with Crawford, Melendez-Diaz, and Bullcoming. (41) The dissent further emphasized that confronting the primary analyst was the only means of discovering mistakes or fraudulent procedures during the testing process. (42)

      It is important to note that the Williams plurality believed that the testifying analyst was not a surrogate, but an expert witness. (43) Under the Federal Rules of Evidence, the expert's opinion regarding the forensic report was thus admissible even if the report itself was not. (44) While experts are usually not allowed to disclose inadmissible information to a jury, the Federal Rules of Evidence allow disclosure if its assistance to the jury in evaluating the opinion substantially outweighs its prejudicial effect. (45) The difference between a surrogate and an expert witness is slight and depends on the degree to which a witness relies on the underlying information. (46) Because the testifying analyst in Williams largely repeated the information of the actual analyst, the dissent argued that she should be considered a surrogate witness. (47)

   3. Lack of Uniform Confrontation Clause Analyses Across the Nation

      1. Confrontation Clause Analyses Under the Fractured Williams Opinion

         In People v. Lopez, (48) the divided Supreme Court of California found no confrontation violation based simply on a blood alcohol report's lack of formality. (49) The plurality opinion viewed the absence of the laboratory analyst's signature or certification on the report as an indication of lack of the required solemnity. (50) In a concurring opinion, four justices identified that they would resolve the case by focusing the analysis on the primary purpose prong instead of the requisite formality test. (51) A highly critical dissent noted that Williams did not provide authoritative guidance, and prior precedent should have resolved the issue. (52) Focusing on the process and purpose that resulted in the report, the dissenting opinion criticized the plurality's reliance on the crime laboratory's supposed inherent neutrality. (53)

         In a unanimous decision, the Supreme Court of Delaware found a blood analysis report to be testimonial, as it was admitted for the truth of the matter asserted. (54) The court further held that a certifying analyst who simply reviewed the data and conclusions of such a report was not sufficient for purposes of confrontation. (55) Notably, the court mentioned that its holding would put a justified burden on the prosecution. (56)

         The Supreme Court of Alabama recently held that a certifying analyst's testimony was sufficient for purposes of confrontation. (57) The court...