Sixth Amendment’s Confrontation Clause Tested in Supreme Court Case

December 6, 2011
by Jonathan Arogeti
The Supreme Court heard oral arguments earlier today on a case that could have a “major effect” on criminal proceedings, says Erwin Chemerinsky, the dean at the University of California, Irvine School of Law in an article for ABA Journal.
Commentators say that in Williams v. Illinois, the Court will for at least the fourth time in the last decade seek to balance the constitutional principle for an accused “to be confronted with the witness against him” and the statutory principle on expert testimony.
During the ACS Supreme Court Preview, Professor Cynthia Jones of American University Washington College of Law highlighted the case, saying, “The Confrontation Clause and the rules on expert testimony clash in … Williams v. Illinois. That gives the Supreme Court an opportunity to tweak the Confrontation Clause analysis in light of its rules on expert evidence under rule 703.”
In a preview for SCOTUSblog, Supreme Court litigator Tom Goldstein gives context for the case, writing, “An expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted.  The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.”
The Court held in Crawford v. Washington that testimonial statement cannot come from unavailable witnesses. In subsequent cases --  Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico -- the Court followed the precedent set in Crawford and sided with the respective petitioners to strike down the lower court decisions because the expert did not testify.
But what if the expert was unavailable to testify?
Justice Sonia Sotomayor seeks to answer that pervasive question in a concurring opinion in Bullcoming. She offers three possible circumstances, and it is on the third such possibility that the petitioner in Williams seeks to make the case.
Sotomayor wrote of the Bullcoming opinion, “This is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”
But, as Chemerinsky notes, Williams might just be that case.
If the court affirms the Illinois courts, it will approve a way to limit the adverse effects of Melendez-Diaz and Bullcoming on prosecutors; experts can testify based on the laboratory report without it actually being introduced into evidence.
If the court reverses the Illinois courts and applies Melendez-Diaz and Bullcoming, prosecutors will face serious hurdles not only when the analyst is unavailable, but also in cases like Williams where there are multiple steps and many analysts involved.
Underlying all of this is a basic question of constitutional law: how much should practical consequences matter in interpreting a provision like the Confrontation Clause? That is what divided the majorities and dissents in Melendez-Diaz and Bullcoming, and it could be what Williams ultimately turns on.
For the transcript of today's case, click here. For the rest of Professor Jones’ remarks on the case, see below.