The holdings and implications of Williams v. Illinois

Justice William Brennan was famous for saying that the most important rule in constitutional law is how to count to five.  Rarely is close attendance to that rule more important than with respect to Monday’s four-one-four opinion in Williams v. Illinois.

Williams is the latest of the Court’s decisions involving the application of the Confrontation Clause to forensic evidence.   It involved a forensic analyst testifying, based on part on a DNA profile performed by someone else, that DNA found inside a rape victim matched DNA taken from the defendant.  To understand the issue this fact-pattern presented, it is necessary first to give a bit of background.

The Confrontation Clause guarantees the accused the right “to be confronted with the witnesses against him.”  Because “witnesses” are people to give testimony, a broad coalition of Justices held in Crawford v. Washington(2004) that the Confrontation Clause prohibits the prosecution from introducing out-of-court “testimonial” statements without putting the declarants on the stand.

In Melendez-Diaz v. Massachusetts (2009), the Court held that forensic reports that certify incriminating test results are testimonial.  The case, however, was a closely fought five-to-four decision.  And last Term, in Bullcoming v. New Mexico (2011), a five-Justice majority reaffirmed Melendez-Diaz and made clear that when the prosecution wishes to introduce a certified forensic report, it does not suffice to call a supervisor or other “surrogate” witness to the stand in place of the actual author of the report.

The Bullcoming decision nonetheless left open whether the prosecution could introduce an analyst’s testimonial forensic report (or transmit its substance) through an expert witness.  The Court granted certiorari in Williams to answer that question, electing to review the Illinois Supreme Court’s holding that the prosecution may introduce testimonial statements in the forensic reports through expert witnesses because statements introduced to show the basis for an expert opinion are not introduced for the truth of the matter asserted.

The five Justices from the Bullcoming majority rejected this reasoning.  Concurring in Monday’s judgment in Williams and agreeing with the four dissenters (Justice Kagan, writing also for Justices Scalia, Ginsburg, and Sotomayor), Justice Thomas explained that “[t]here 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.”

This conclusion is the most important aspect of Williams.  Before the Court’s decision, numerous state and federal courts had held that the prosecution could introduce testimonial statements not only through forensic experts, but also through mental health experts, “gang experts,” and other experts.  130  The Confrontation Clause now prohibits this practice.

But as is sometimes the case, prevailing on the question presented was not enough for the petitioner to prevail in the case.   That was because Justice Thomas also determined that the forensic report at issue in the case – a DNA profile derived from a vaginal swab from a rape victim – was not testimonial.  Justice Thomas reasoned that, unlike the reports in Melendez-Diaz and Bullcoming, the report in Williams was not sufficiently “formal” or “solemn” to rank as testimonial.

Justice Alito’s plurality opinion (on behalf of the four dissenters from Melendez-Diaz and Bullcoming) agreed that the DNA profile was not testimonial.  Reciting many of the arguments advanced in the Melendez-Diaz and Bullcoming dissents, that opinion emphasized that the report did not accuse a targeted individual of a crime and that the report, for various reasons, appeared reliable.  But Justice Thomas rejected the plurality’s reasoning in its totality.  So it is his opinion (the narrowest in terms of assessing whether forensic reports are testimonial) that will control future cases involving forensic evidence.

So where, in practical terms, does this leave us?  In the realm of forensic evidence, the Confrontation Clause continues to deem formal forensic reports testimonial.  That means that drug, blood alcohol, fingerprint, ballistics, autopsies, and related reports that typically involve testing by one person and that are incriminating on their face will continue to be inadmissible without the testimony of their authors (or some other method of satisfying the Confrontation Clause).  Even if some laboratories or jurisdictions are tempted to try to make such reports less formal (imagine a ballistics report in crayon or on a cocktail napkin!) in order to fall within Justice Thomas’s test, his opinion makes clear in footnote 5 that such efforts would be in vain.  That footnote says that “informal statements” are also testimonial when made to “evade the formalize process” previously used to generate such statements.

By contrast, statements made as part of a lab’s internal work product or in a subsidiary report used to generate a final incriminating report will generally not be testimonial.  Such statements are not typically formal or solemn.  Thus, in forensic testing involving multiple steps, it will often be enough for the prosecution to call to the stand the author of the final report or at least those who performed the key steps.

None of this sorting is meant to suggest that Williams does not sow any confusion or leave us with any big questions.  But the biggest one I see is outside of the context of forensic evidence – namely, will Justice Thomas’s formality test come to control whether statements besides forensic reports are testimonial?  In Hammon v. Indiana (decided in conjunction with Davis v. Washington), an eight-Justice majority – all except Justice Thomas – held that statements made for the “primary purpose” of “establish[ing] or prov[ing] past events potentially relevant to a criminal prosecution” are testimonial, even when the statements are not part of formalized dialogue.  Thus, calling the case a relatively “eas[y]” one, the Court held that statements made by a victim of a completed domestic assault to a responding police officer were testimonial.

The Williams plurality, in footnote 13, expressly accepted Hammon as “binding precedent[].”  But at least some members of the plurality have clearly since soured on the Crawford doctrine and may be willing to reconsider even their own previous votes in order to curtail its reach.

That would be pretty dramatic turn of events, and time will tell.  For now, the Crawford revolution – as some have called it – lives on.  But its foothold also appears to be somewhat more tenuous than before.