Professor Friedman has posted a link (via Westlaw) to a “nice opinion” on a case similar to Williams v. Illinois. Professor Friedman has been a frequent amicus in confrontation cases, including in Williams. Here is a more available link to Derr v. State (Maryland). This is a surrogate expert witness at trial case. The Maryland court said:
Derr challenges the admission of forensic evidence introduced at trial through the testimony of an expert witness who did not take part in or observe the physical testing of the evidence, or independently determine the test results.
In this case, there are three pieces of evidence and related testimony that implicate the Confrontation Clause: a 1985 serological report, and the DNA analysis from 2002 and 2004. We shall hold that a testimonial statement may not be introduced into evidence without the in-court testimony of the declarant, unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the witness. Here, the testing procedures and method employed, the DNA profile created, and the conclusion that there is a match are testimonial in nature, and therefore the analyst who performed the DNA testing is a witness subject to confrontation and cross-examination within the meaning of the Confrontation Clause. In addition, the DNA profile and analysis constituted testimonial statements prepared in anticipation of trial, which were offered into evidence through the testimony of a surrogate who did not participate in or observe the testing procedures. Derr was thus not able to confront the witnesses who made testimonial statements against him, and he was not provided with a prior opportunity to cross-examine the witnesses. Therefore, the testimony offered by the surrogate and the admission of the serological reports and DNA evidence were subject to the protections of the Confrontation Clause (emphasis added).
SCOTUSBlog notes that Williams will be argued on 6 December 2011.
Issue: Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts violates the Confrontation Clause, when the defendant has no opportunity to confront the actual analysts.
Plain English Issue: Whether a court violates a criminal defendant’s rights under the Confrontation Clause by allowing an expert witness to testify about the results of DNA testing conducted by another analyst who has not appeared as a witness at the trial.