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.
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.