Today the Supreme Court of the United States granted certiorari in Williams v. Illinois (#10-8505) on the following question:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

The Supreme Court of Illinois opinion (238 Ill. 2d 125) is here.

Unlike the facts of United States v. Bullcoming (which do not address the Blazier holdings that the raw, machine-generated data, without commentary or notation, (1) may be relied upon by an expert who did not participate in the test, and (2) are non-testimonial and may be admitted into evidence), I believe Williams is directly analogous to the circumstances common to most drug-lab expert testimony in courts-martial for violation of Article 112a.

In Williams (a sexual assault case), biological samples were sent to a laboratory in Maryland, which performed the analysis and reported a DNA match. However, an Illinois State Police forensic biologist testified at trial (a bench trial), providing both a foundational basis for the laboratory’s work and an independent analysis. The laboratory’s report was not admitted.

The Supreme Court of Illinois considered two issues: (1) could the expert determine that the laboratory test was sufficiently reliable to provide a foundational basis for the testimony, and (2) a sixth amendment claim regarding statements about the laboratory report. On the first issue, the court found no error because the testifying expert did not merely regurgitate facts from the report, but conducted her own analysis based on the data in the report, and her reliance on the report itself goes to weight and not admissibility. On the second issue, the court also found no error, noting again the independent analysis and the fact that the report itself wasn’t admitted (and data from it was only admitted for the purpose of explaining the basis of the testifying expert’s opinion).

There is a lot of fodder in the Illinois opinion (e.g., the court “find[s] that the testing of narcotics using a GCMS machine is not comparable to the scientific process at issue in this case”), but it’s heading to the Supreme Court with facts that are very similar to those found at a court-martial; more so than any other confrontation case to date.

15 Responses to “SCOTUS Grants Cert on Another Confrontation Clause Case”

  1. stewie says:

    Just to be straight, and I could be wrong so please correct me, but your position (and apparently the position of the Illinois court) is that you can do human testing, feed it into a computer, then use only the computer printout, and have some person come in and say what that printout means, and you’ve satisfied the Confrontation Clause?

    Let’s assume that’s true, how do you authenticate the printout? Is it a self-authenticating document? (I’d think no). Or do you not even introduce the document, but merely show it to an expert who was not involved in the testing at all and have him opine that it means the accused had cocaine or whatnot in his system?

    That as well does not strike me as a formula for doing justice.

  2. GRH says:

    I’d like to hear what any of this accomplishes for an accused other than forcing the Government to produce additional live witnesses at trial. Once those live witnesses are produced they are only going to strengthen the G’s case. That is provided you have a TC who has interviewed these witnesses and determined there were no discrepancies, etc. Other than that, this case law appears to only help the G. So you cannot “rely on printouts” anymore??? What does that really mean? You get your 702 expert up there and it all comes in through him or her because they can both rely upon and testify as to inadmissible hearsay when making and explaining their opinion.

  3. John O'Connor says:


    It makes it harder and more expensive to prove up a drug pop, thereby increasing the chances that the CA will deal the case back to a summary court-martial, NJP, or ad sep. That is, if the court holds for the defendant in this latest confrontation clause case.

  4. k fischer says:

    Better yet: it makes it quite difficult for the Gov’nment to get a conviction if the witness is deceased or is retired and is on the lam, for lack of a better term, because he does not want to be bothered with testifying since it interferes with his new scuba instructor’s job in Phuket.

    Not that I’ve ever considered what I would do if I were single and retired from the military………

  5. Rob Klant says:

    One practical thing these decisions can do is to help open up the technicians’ personnel files to the defense.

    In one case I found an NDSL employee in the chain of custody who had an OTH discharge from the military and another who had been disciplined for switching samples/altering lab documents. Worse yet, when confronted by her supervisors, the latter employee made a statement to the effect of “What’s the big deal? Everyone does it, all the time.”

  6. stewie says:

    I’d guess for the guilty accused it doesn’t accomplish much, other than the aforementioned increased cost to the government. But for the innocent accused (or any accused) who’s the victim of either outright fraud at the lab (which has happened), or errors at the lab (which has happened), or faults in the chain of custody (which has happened), this will do quite a lot I’d think.

    If nothing else, it will force the person doing the testing to maybe do it right more often knowing that they are likely going to have to testify later in the case.

  7. Phil Cave says:

    Hastis? The Mobley Letter? Mills? The “expert” at DCFL? Rob Klant only touches on one: how about the examiners who were themselves doing drugs, the ones who routinely mishandled, employees manipulating quality control samples, the Brooks false positive (still not adequately explained, when asked why a female’s sample contained only male DNA and no female DNA, stated “there must have been contamination during accessioning, but it’s her sample,” or being rude and disrespectful to supervisors who point out errors, or “careless workmanship in the processing of urine samples (x3),” or “Failure to follow SOP (x3),” or “doing it again a month later,” or “failure to properly document testing and making transcription error(s) with the LAN,” or . . . or . . . or . . . ?

  8. Zachary Spilman says:

    +1 to Phil Cave. I believe the government is obligated to (1) discover the “misconduct” (even if the gov’t would characterize it differently) at the drug labs, and (2) disclose it to the defense. The government is obligated to do this because this evidence is exculpatory.

    Ethics trumps client.

    However, for what it’s worth, I don’t believe this is a confrontation clause issue. Such concerns go to the weight, and not the admissibility, of the laboratory evidence.

  9. stewie says:

    What is the point of the confrontation clause other than the ability to TEST the veracity of the evidence. How is this not absolutely about the veracity of the evidence?

    We are talking literally about whether the evidence is what it purports to be, that isn’t weight, that’s admissibility.

    Once you actually have the person there to say yes, I tested it, yes I can authenticate it, THEN concerns about issues at the lab MAY be a weight issue but even then, under the idea that you only need the printout and no one from the lab (because machines aren’t testimonial) then how would you ever get to these issues?

    You wouldn’t.

  10. Phil Cave says:

    The point I was making (and I think Rob Klant as well) was not about discovery. It was about the fact that errors are routinely made at drug labs. How you find out about it is through discovery requests — usually contested by the prosecution. Prosecutors actively seek to have adverse information about the lab excluded, and certainly CAAF has agreed, because of the so-called lapse in time (this is the false positive issue in particular). So we are at the stage that “routine” errors of errors have to have occurred during a reasonable time before and after the client’s sample. We are not allowed to establish the cumulative and continuing nature of errors. So, the lab and the prosecution talk about the gold standard and how forensically sound the labs results are. But, we know from discovery that that may not be the case. So, this is why there is a legitimate confrontation right and concern.

  11. Random TC says:

    Phil and Rob have great points, as usual.Though I suspect, as others state, the most common hope and tactic is too simply force the case to become more expensive and difficult for the Govt in the hopes of it resolving some way other than trial. Certainly not the only rationale but what I believe is the most common. Many a requested defense witness isn’t really wanted but asked for in an attempt to cause the Govt logistical problems. We’ve all done it as defense

  12. Phil Cave says:

    Actually I think the DC work in urinalysis cases starts with visiting the lab and interviewing the lab personnel who worked on the sample.
    I’ve had two types of responses.
    The Army drug lab at Fort Meade was very cooperative. We worked together to come up with a schedule where I could talk to all of the relevant employees. It took two days. During times when the employee wasn’t available I was able to review about 20 three inch ring binders with SOP, etc.
    In a Navy case the Director of one of the Navy drug labs refused to allow the witnesses to be interviewed. He said I couldn’t come or talk to them, that it would be a burden on the lab. The case went away and I don’t know if that lab has a different understanding of Article 46 now. Complete opposite of the open and transparent response of the Army.

  13. stewie says:

    Actually RandomTC no, I never in my long time as defense counsel ever called a witness “simply to force the case to become more difficult and expensive.”

    I can’t imagine why you would ever NOT call those witnesses, it’s necessary unless you are pleading guilty.

  14. Phil Cave says:

    (A little tongue-in-cheek her R/TC, so take it in that spirit). So the rule is the defense shouldn’t require the prosecution to call witnesses to prove its case if it would be an expense and logistics problem for the prosecution? :-( I have a new duty assignment for you — membership on the Joint Service Committee on MJ. :-)

  15. Random TC says:

    I’ll take that job. I got some ideas I’d like to take for a spin…..