Confrontation Clause

This wikilog article is a draft, it was not published yet.

by: Ryan • December 10, 2011 • no comments

Recently, SCOTUS had oral argument in Williams v. Illinois. It's a confrontation clause case. The defendant should win, and the way oral argument went, it appears he will. Sadly, it will not be 9-0.

The question presented is whether an expert's testimony about the substance of an analyst's report violates the Confrontation Clause if the government does not make the analyst available for confrontation.

There is no dispute - following Bullcoming and Melendez-Diaz - that if the state wanted to offer the analyst's report without calling the analyst, that would violate the Confrontation Clause. But instead, the state called an expert who offered an opinion (that the DNA from the crime scene was the defendant's DNA) that relied entirely on the analyst's report.

The state tried to argue that the analyst's report wasn't being offered for "the truth of the matter asserted." But if it wasn't true, then what relevance would the expert's opinion have?

As I mentioned, it appeared from oral argument that the defendant would win. Sotomayor, who - judging from her concurrence - might have been considered a somewhat squishy 5th vote in Bullcoming, seems firmly in the Scalia majority this time around. Kennedy, a dissenter in Bullcoming, seems to have come around and will likely join the majority.

But the actual opinion could be interesting, beyond merely reaffirming precedent. Experts rely on hearsay all the time when testifying. This is particularly true for psychiatric experts, who may be told everything from childhood trauma to an inmate's behavior in the jail. At what point is the hearsay so crucial to the expert's conclusion that the confrontation clause kicks in?

We won't have a definitive answer to that question when the William's opinion is issued (before July, 2012), but it should jumpstart the conversation.