SCOTUS Clarifies the Confrontation Clause
By Jacob Mershon, 3L at New England Law | Boston
- SIMILAR CASE BACKGROUNDS AND HOLDINGS
Before analyzing the Smith v. Arizona decision from earlier this Summer, it is helpful to first discuss a line of fairly recent Supreme Court rulings that touch on the Confrontation Clause of the United States Constitution.
- Crawford v. Washington
Sylvia Crawford told her husband, Michael Crawford, that Keith Lee had tried to rape her. Michael and Sylvia then drove to Lee’s residence to confront him. An altercation ensued, ending in Michael stabbing Lee. Crawford’s hand was cut in the process. Sylvia was taken into custody and interrogated separately from Michael. Michael confessed that he and Sylvia went to Lee’s apartment to confront him, a fight ensued, ending with Lee being stabbed. Michael claimed that Lee had a weapon and intended to use it, but Sylvia told the police that Lee did not have a weapon. Crawford v. Washington, 541 U.S. 36, 38-40 (2004).
Crawford was charged with assault and attempted murder, claiming self-defense at trial. Sylvia did not testify because of the WA marital privilege, barring a spouse from testifying without the other’s consent. However, at the time in WA, this privilege did not extend to a spouse’s out-of-court statements which were admissible under a hearsay exception. In this case, the exception was that Sylvia’s statements were a statement against Michael’s penal interest. Michael argued at trial that admission of this statement violated his Sixth Amendment Confrontation Clause rights. Sylvia’s statements were admitted, and Michael was later convicted of assault. On appeal, the WA Court of Appeals reversed, but the WA Supreme Court reinstated the convictions. The Supreme Court granted review to determine whether admitting Sylvia’s statement violated the Confrontation Clause. Crawford, 541 U.S. at 40-42.
SCOTUS held that “[t]estimonial statements of witnesses absent from trial [will be] admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine. Id. at 59. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy the constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69. This decision abrogated Ohio v. Roberts, which previously held that the right to confrontation under the Sixth Amendment “does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears ‘adequate indicia of reliability,’ a test met when the evidence either falls within a ‘firmly rooted hearsay exception’ or bears ‘particularized guarantees of trustworthiness.’” Id. at 36; Ohio v. Roberts, 448 U.S. 56, 66 (1980). The Supreme Court decided that the Roberts test was too broad, yet too narrow: an exceedingly malleable standard that “often fails to protect against paradigmatic confrontation violations.” Crawford, 541 U.S. at 60. However, Roberts would still apply where nontestimonial hearsay is at issue, and would exempt such statements from Sixth Amendment scrutiny. Id. at 68. The Washington Supreme Court’s decision to reinstate Crawford’s conviction was reversed and the case was remanded for further proceedings consistent with the opinion.
- Melendez-Diaz v. Massachusetts
In 2001, Boston PD officer received a tip that a Kmart employee, Thomas Wright, was engaging in activity that seemed suspicious. The informant reported that Wright repeatedly received phone calls, each of which he picked up in the front of the store by a blue Sedan, and would return to the store a short time later. The police set up surveillance of the Kmart in the parking lot and witnessed Wright do this multiple times. When Wright got out of the car one time, officers detained and searched him and the two other men in the car. One of those men was Luis Melendez-Diaz. The officers found four baggies of what they thought was cocaine on Wright. The officers took the three men to the police station. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307-08 (2009).
The officers noticed the men making furtive movements in the back of their cruiser. Upon arrival at the police station, the officers found nineteen smaller plastic bags of cocaine which were hidden between the front and back seats of the cruiser. The seized evidence was given to the state drug testing laboratory to conduct chemical analysis of the supposed drugs. Melendez-Diaz was charged with distributing cocaine as well as trafficking cocaine. Id. at 308.
At trial, the prosecutor placed the bags seized from Wright and the police cruiser into evidence, also submitting three certificates of analysis for the seized substances. The certificates reported the weight of the seized bags and determined that the bags contained cocaine. Melendez-Diaz objected to the use of the certificates at trial, arguing that the Crawford decision required the analysts to testify in person, and that simply allowing the certificates into evidence without any cross-examination of the person(s) who prepared the certificates was unconstitutional. The objection was overruled, and Melendez-Diaz was eventually found guilty. Melendez-Diaz appealed, and the Appeals Court rejected the appeal. The SJC denied his petition for review. SCOTUS granted certiorari to decide whether the prosecution may introduce evidence, such as a forensic laboratory report, without offering a live witness who is competent to testify to the truth of the statements in the report. Id. at 308-09.
SCOTUS reversed the Mass. Appeals Court judgment, holding that, under Crawford, “the analysts’ affidavits were testimonial statements, and the analysts were ‘witnesses’ for the purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that [Melendez-Diaz] had a prior opportunity to cross-examine them, [Melendez-Diaz] was entitled to ‘be confronted with’ the analysts at trial. Id. at 311 quoting Crawford, supra, at 54. Although under Massachusetts law at the time, which held that “authors of certificates of forensic analysis are not subject to confrontation under the Sixth Amendment,” Commonwealth v. Verde, 444 Mass. 279, 283-285 (2005), the documents here are, under prior Supreme Court precedent, See White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment), fall within the “core class of testimonial statements,” meaning they are, for Confrontation purposes, affidavits. This means that the certificates are “functionally identical to live, in-court testimony, ‘doing precisely what a witness does on direct examination.” Melendez-Diaz, 557 U.S. at 310-11 quoting Davis v. Washington, 547 U.S. 813, 830 (2006) (emphasis deleted).
Further, SCOTUS deduced six major reasons as to their finding for Melendez-Diaz. First, although the affidavits did not accuse Melendez-Diaz of wrongdoing, they were essential to proving an element of the offense of possession of cocaine, thus invoking the Confrontation Clause. Melendez-Diaz, 557 U.S. at 314.
Secondly, SCOTUS points to the Sir Walter Raleigh trial, noting that the ex parte examinations of the sort used in his trial have “long been thought a paradigmatic confrontation violation,” Id. at 315 quoting Crawford, 541 U.S. at 60, and that such a use of ex parte examinations “flouted the deeply rooted common-law tradition ‘of live testimony in court subject to adversarial testing.’” Melendez-Diaz at 315; quoting Crawford at 43-47.
Third, studies show that “because forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency. A forensic analyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution.” Melendez-Diaz at 318, citing National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1 (Prepublication Copy Feb. 2009). Basically, government analysts are not as neutral or reliable as they are supposed to be on paper, and Confrontation “is designed to weed out not only the fraudulent analyst, but the incompetent one as well.” Melendez-Diaz at 319.
Fourth, even if such a report would be otherwise admissible under an existing hearsay exception, such as being a business or public record, the Confrontation Clause is implicated still if the evidence within such records are testimonial. Melendez-Diaz at 324.
Fifth, the Commonwealth asserted that there was no Confrontation Clause violation as Melendez-Diaz could have subpoenaed the analysts. However, the majority holds, the defendant’s power to subpoena witnesses under state law or the Compulsory Process Clause is no substitute for the Sixth Amendment right to confrontation. Id. Just because the defendant issues a subpoena for a witness to show at trial does not mean that the witness will show up. In simpler terms, the Confrontation Clause “imposes a burden on the prosecution to present its witnesses, not on the defendant to bring those adverse witnesses into court. Its value to the defendant is not replaced by a system in which the prosecution presents its evidence via ex parte affidavits and waits for the defendant to subpoena the affiants if he chooses.” Id. at 324-25.
Finally, the Commonwealth asked the Court to abrogate the rights afforded by the Confrontation Clause in order to relieve the burden on the government. Scalia notes that “The Confrontation clause… is binding, and we may not disregard it at our convenience.” Id. at 325.
In sum, the admission of the certificates against Melendez-Diaz without the analysts/affiants being in court to testify/so that Melendez-Diaz could confront them was an error. Melendez-Diaz, 557 U.S. at 329.
- Bullcoming v. New Mexico
In 2005, Donald Bullcoming rear ended a pickup truck in New Mexico. When the drivers exited their vehicles, the truck driver noticed that Bullcoming’s eyes were bloodshot and his breath smelled of alcohol. The truck driver’s wife called the police, but Bullcoming had fled the scene. He was soon apprehended by an officer, was ordered to perform field sobriety tests, failed the tests, and was arrested for DWI. Bullcoming refused to take a breath test, so the police obtained a warrant authorizing BAC through a blood draw. The sample was drawn and sent to the NM Dept. of Health, Scientific Laboratory Division (SLD). The SLD default report form, titled the “Report of Blood Alcohol Analysis,” reported information filled in by the arresting officer, the reason the suspect was stopped, and the date and time the blood was drawn. The nurse who drew the blood also signed off on the form. Bullcoming v. New Mexico, 564 U.S. 647, 652-53 (2011).
Following the completion of those segments on the form, the analysts’ report was completed. Curtis Caylor was the analyst who tested Bullcoming’s blood, measuring his BAC at .21. Caylor’s report also, in great detail, noted the procedures he undertook in completing his report. The BAC of .21 supported a prosecution of aggravated DUI under NM law, so the state charged Bullcoming with aggravated DWI. Id. at 653-55.
This case was tried in November of 2005, which was after the Crawford decision, but before Melendez-Diaz. Caylor was not called to testify at trial because he was put on unpaid leave, for a reason that was not given to defense counsel. Defense counsel objected, stating that the prosecution had not disclosed that the analyst who was present to testify was not the analyst who conducted testing on Bullcoming’s blood sample. The prosecution offered Caylor’s report as a business record during the testimony of the present analyst, Gerasimos Razatos. Razatos had neither observed nor reviewed Caylor’s analysis. Defense counsel objected again, but the trial court overruled the objection. Bullcoming was convicted of aggravated DUI and the NM Court of Appeals upheld the conviction, finding that the blood test report was non-testimonial and presented with routine guarantees of trustworthiness. Bullcoming appealed to the NM Supreme Court. While his appeal was pending before the NM Supreme Court, Melendez-Diaz was decided, so the NM Supreme Court used Melendez-Diaz to analyze the present case. However, they still ultimately ruled against Bullcoming, holding that the admission of the report did not violate the Confrontation Clause even though it was a testimonial certification. SCOTUS granted certiorari to address this question: “Does the Confrontation Clause permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certificate or personally perform or observe the performance of the test reported in the certification?” Id. at 655-57.
The Supreme Court held “[a]s a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront the witness.” Since the NM Supreme Court correctly decided that the Caylor report was testimonial, but incorrectly held that it was nevertheless admissible through Razatos, Bullcoming’s conviction was reversed. Id. at 658.
At Bullcoming’s trial, there was no reason provided as to why Caylor could not come and testify, even though he was placed on leave. Just because he was placed on leave does not make him unavailable for purposes of Sixth Amendment analysis. And even though Razatos’ testimony was provided in Caylor’s stead, it was not sufficient to meet the Confrontation Clause’s muster. The NM Supreme Court held that all Caylor did was transcribe results from the gas chromatograph machine, presenting no interpretation or independent judgment, and that Bullcoming’s true accuser was the actual machine. However, Caylor’s report was more than him just being the scrivener of the machine. Although Razatos’ testimony may have been reliable as an expert in the field of testing of the sort, the Crawford court wrote that the “obviou[s] reliab[ility]” of a testimonial statement does not dispense with the Confrontation Clause’s demands. Crawford, supra at 62. Further, Razatos is unable to testify to what Caylor actually did during his testing or to what Caylor knew or observed during testing. If Caylor was on the stand, Bullcoming’s counsel could have posed questions designed to reveal whether Caylor’s incompetence, evasiveness, or dishonesty accounted for the removal from his position. This means that a thorough cross-examination that passes the Confrontation Clause’s muster was not available to Bullcoming. Bullcoming at 662.
The Confrontation Clause does not make it permissible to dispense with confrontation just because a trial court believes that questioning one witness about a non-testifying witness’ testimonial statements provides a fair enough opportunity for cross-examination. Bullcoming at 662. When a chemist or analyst’s certification is proffered as evidence for trial, the prosecution makes it so whomever was the affiant of that certification must be a witness that the defendant has the constitutional right to confront. Id. at 663. For the reasons above, the judgment of the NM Supreme Court was reversed and the case was remanded.
- Williams v. Illinois
In February of 2000, a young woman was abducted while she was walking home from work. She was forced into the perpetrator’s car and raped. She was then robbed of her money and other belongings and pushed onto the street. The woman ran home, reported this to her mother, who called the police. An ambulance took the young woman to the hospital, where doctors treated her wounds, ran blood tests, and performed a rape kit. Chicago Police detectives collected the kit, labeled it with an inventory number, and sent it to the Illinois State Police (ISP) crime lab. At the lab, the scientist who received the kit conducted a chemical analysis which confirmed the presence of semen on the swabs. The kit was then frozen for evidentiary preservation. The crime lab sent the biological samples to Cellmark Diagnostics for DNA testing, which came back showing a male DNA profile produced from the semen. Sandra Lambatos, a forensic specialist at the ISP lab, conducted a search to find a possible suspect. Lambatos found a match: Sandy Williams. Williams was charged with aggravated criminal sexual assault, aggravated kidnapping, and aggravated robbery after the young woman picked him out of a lineup. Williams opted for a bench trial. Williams v. Illinois, 567 U.S. 50, 59-60 (2012).
Among the many witnesses called at trial, the prosecution called Lambatos as an expert witness to testify to forensic biology and forensic DNA analysis. During her testimony, Lambatos testified to how Cellmark was an accredited laboratory and her work with Cellmark on this case and others. Lambatos, however, was not able to testify as to how Cellmark created the DNA profile itself, and the prosecutor did not call the Cellmark analyst who worked on this specific case to testify. Further, Lambatos testified to the reliability of the Cellmark report/profile. However, the Cellmark report itself was not offered into evidence. Defense counsel moved to exclude Lambatos’ testimony about Cellmark on Confrontation Clause grounds, arguing that there was no evidence regarding the work that Cellmark did to justify Lambatos’ testimony. The trial court judge did not exclude this testimony and Williams was found guilty. Both the Illinois Court of Appeals and the Illinois Supreme Court affirmed. The Supreme Court granted certiorari. Williams at 60-64.
The ultimate question in this case was whether Crawford bars an expert from expressing an opinion based on facts about a case that were made known to the expert but about which the expert is not competent to testify. Further, the Court also sought to decide whether Crawford substantially impeded the ability of prosecutors to introduce DNA evidence and thus effectively relegating the prosecutor to less reliable forms of proof.
In a four-justice plurality decision, Justice Alito, affirming the lower courts, stated that this form of expert testimony did not violate the Confrontation Clause, as the Confrontation Clause has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. “When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.” Williams at 58. Ultimately, since the Cellmark report was not offered into evidence, Lambatos’ testimony about Cellmark did not violate the Confrontation Clause, as the DNA profile was not offered for the truth of the matter asserted and instead was used by an expert to form the basis of her opinion.
- Smith v. Arizona
As a precursor to the facts, this case abrogated Williams and cleared up the confusion surrounding its application nationwide.
In December 2019, AZ law enforcement officers executed a search warrant on Jason Smith’s property. Smith was found inside of a shed in the property, alongside what looked like drugs and drug paraphernalia. Smith was charged with possessing dangerous drugs (meth) for sale, possessing marijuana for sale, possessing narcotic drugs (cannabis) for sale, and possessing drug paraphernalia. The police sent the items seized from the shed to a crime lab run by the AZ Department of Public Safety (DPS) for analysis. The request identified Smith as the suspect, listed the charges against him, and noted that a trial date had been set. Elizabeth Rast was the analyst who ran point on the testing. Smith v. Arizona, 144 S.Ct. 1785, 1795 (2024).
Rast was given eight items and prepared a set of notes and a signed report about the testing. The notes documented her lab work and results. The signed report then consolidated the notes into a summation of the ultimate tidings. Rast’s report stated that item four contained methamphetamine, item three contained marijuana, and item one contained cannabis. Rast was originally slated to testify at trial, but, three weeks before trial, the State replaced Rast with another DPS analyst. Rast had stopped working in the office for reasons that were not disclosed, so the State decided not to call Rast. The prosecutors decided to call Greggory Longoni as their “substitute expert.” Longoni had done no work on the case, and instead was to offer “an independent opinion on the drug testing performed by Elizabeth Rast.” Id. at 1795.
On the stand, Longoni testified to what Rast did to analyze all of the eight items provided to her, item by item. Longoni testified that Rast “adhered to general principles of chemistry” and “to the lab’s policies and practices.” Longoni then offered an “independent opinion” of the identity to the items: an “independent opinion” of exactly what Rast found. Smith was convicted on all charges and appealed on Confrontation Clause grounds. The AZ Court of Appeals affirmed on the basis that “experts may testify to the substance of a non-testifying expert’s analysis, if such evidence forms the basis of the [testifying] expert’s opinion.” Id. at 1796 quoting State ex rel. Montgomery v. Karp, 236 Ariz. 120, 124 (App. 2014). AZ courts held previously that “underlying facts” are then “used to show the basis of the [in-court witness’s] opinion and not to prove their truth.” Karp at 124. SCOTUS granted certiorari to examine the AZ courts’ logic and re-examine the question presented in Williams. In other words, the Court looked into whether the Confrontation Clause permits the prosecution to present testimony by a substitute expert who would convey the testimonial statements of a non-testifying expert witness.
SCOTUS rejected the AZ courts’ reasoning, holding that when an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth, meaning they were testimonial, further meaning that the Confrontation Clause bars their admission without Rast being present to testify. Smith at 1791. Rast’s statements came in for their truth as they were admitted to show the basis of Longoni’s expert opinions, and the State’s entire case was propped up on admitting Rast’s statements for the truth of the matter asserted. Id. at 1800. If the Court ruled any other way, every single testimonial lab report could come into evidence through any surrogate testimony, however remote they are from the case, and no defendant would ever have the right to cross-examine the testing analyst and expose potential faults in their work. Ibid.
SCOTUS summarized the progeny of Crawford, holding a State may not introduce the testimonial of out-of-court statements of a forensic analyst at trial, unless they are unavailable and the defendant has had a prior chance to cross-examine them. See Crawford and Melendez-Diaz. The State may also not introduce such statements through a surrogate analyst who did not participate in the creation of the statements. See Bullcoming. “…[N]othing changes if the surrogate–as in this case– presents the out-of-court statements as the basis for his expert opinion. Those statements… come into evidence for their truth–because only if true can they provide a reason to credit the substitute expert. So a defendant has the right to cross-examine the person who made them.” Smith at 1802.
Smith differs from Melendez-Diaz as in Smith, there was an analyst who testified, but it was not the analyst who conducted the testing and created the report. In Melendez-Diaz, there was no analyst who testified, and the only evidence of drug testing that was admitted at trial was the actual drug certification from the analyst. Smith is much more similar to Bullcoming in that respect.
