Tuesday, June 28, 2011
The Supreme Court, in its final orders on Tuesday, showed its continued interest in the Sixth Amendment’s Confrontation Clause, taking on a new case on whether an expert witness can be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial. That question was close to one that had been raised last week by Justice Sonia Sotomayor as the Court ruled in the case of Bullcoming v. New Mexico (09-10876)....
The new Confrontation Clause case is Williams v. Illinois (10-8505). In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify. The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done. The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.
That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case. In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible. Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered. One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” The Court apparently granted the Williams case on Tuesday to judge that very situation.
I will have more on Williams tomorrow.