Scientific Evidence

Continuing Crawford/Confrontation “Confusion”

Jules Epstein

It is rare that the denial of a Petition for Writ of Certiorari garners much press attention, but the Court’s refusal to accept the case of Stuart v. Alabama (No. 17-1676, 2018 U.S. LEXIS 6779 (Nov. 19, 2018)) is one such instance. The headline in SLATE was “Neil Gorsuch and Sonia Sotomayor Have Started Teaming Up to Protect Criminal Defendants” (, last visited Nov. 24, 2018), and the more staid Bloomberg Law described it as “Justices Avoid Confrontation Case over Gorsuch, Sotomayor Dissent.” (U.S. L. Wk., Nov. 19, 2018 (emphasis added).) The dissent to the denial of certiorari complained of “confusion in courts across the country” and maintained that “the problem appears to be largely of our creation[.]” The upshot for criminal law practitioners—judges, prosecutors, and defense counsel—and forensic science providers is that the application of the Confrontation guarantee as applied to forensic lab reports remains in flux.

What is the disarray? Until Stuart, the Court had accepted three forensic reports cases to address whether such reports are “testimonial,” i.e., the type of document or testimony that the Confrontation guarantee applies to, and how the information from such reports may be presented in a criminal prosecution. The rules developed in the first two cases were seemingly simple: Lab reports are testimonial hearsay and thus may be presented only in compliance with the Sixth Amendment guarantee of cross-examination; and the person to be confronted could not be someone from the forensic lab who neither conducted, supervised, or otherwise observed or participated in the testing. A subordinate “rule,” found in the Court’s dicta, approved “notice and demand” statutes, laws that permitted the prosecution to give notice of its intent to present a forensic report but allowed the accused to “demand” that the lab technician or other forensic expert testify live.

Beneath this apparent simplicity lurked problems. Four justices (Roberts, Kennedy, Alito, and Breyer) believe the Confrontation guarantee has no applicability whatsoever to forensic reports; there was no clear delineation of who, other than the actual testing analyst and her/his direct supervisor, could present the report at trial; and Justice Sotomayor, concurring in the second forensics case, emphasized that this was not “a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.” (Bullcoming v. New Mexico, 564 U.S. 647, 673, 131 S. Ct. 2705, 2722 (2011) (Sotomayor, J., concurring).)

That final concern—whether a “testimonial” forensic report could be relied upon by an expert even though inadmissible on its own terms because the analyst who conducted the testing was not present—was presented to the Court in the third of its forensic reports trilogy, Williams v. Illinois. (567 U.S. 50 (2012).) Because Williams produced a split (4–1–4) decision, that question continues to plague courts nationally.

In addressing whether a DNA scientist could testify regarding a profile produced by someone at a different lab, the Williams plurality (the same four who believe no forensic lab report is testimonial) took several tacks:

  • The DNA report could not be testimonial, as no person had yet been arrested or targeted when the analysis took place (and, more broadly, DNA and similar forensic reports are not testimonial hearsay);
  • Even if the report was testimonial, there would be no Confrontation Clause violation as it was not being offered for its truth; and
  • A testifying expert could rely on the original DNA report pursuant to Rule 703, as it was being used only to show the basis for the testifying expert’s opinion(s).

The plurality posited an additional point, one of tangential significance—that because this was a bench trial, it is clear that a sitting judge would have known to not use the DNA report for its truth, again preventing a constitutional violation.

The problem is that the principal rationales of the plurality were rejected by the one concurring justice (Thomas) and the four dissenters. All five agreed that Rule 703 would not permit “backdoor” use of a testimonial report, as the expert’s opinion would have no relevance unless the underlying fact(s)—the assertion(s) in the testimonial hearsay report—were accepted as true. Said more simply, when an expert says, “the DNA profile I developed and the DNA profile the lab developed from the crime scene evidence have the same alleles at the same loci,” that opinion has value only if the lab report describing the crime scene DNA profile is indeed accurate/true.

This was not the only point where a majority of the Court rejected the plurality. Both the concurring opinion of Justice Thomas and the dissent rejected the notion that a report prepared before a specific individual was a suspect was not testimonial; and all five agreed that at least some forensic reports were testimonial. The line that separated Justice Thomas from the dissent was that of formality—for him, only lab reports that are “sworn [or] a certified declaration of fact[]” will be testimonial. The DNA report in Williams was neither.

In several aspects, then, Williams should resolve confusion given the several principles the dissent and concurrence agreed to. But confusion has indeed reined. Justice Gorsuch’s dissent from the denial of certiorari in Stuart cites to four cases that decry Williams for offering “little guidance,” being “at best unclear,” “sow[ing] confusion,” and being a decision that does not “yield a single, useful holding. . . .” And these are not isolated critiques. Other cases have labeled it “less than clear” or part of the “muddled” area of Confrontation analysis.

As a result, courts remain divided on how to reconcile Rule 703’s acknowledgment that experts may rely on inadmissible evidence and the ban on testimonial hearsay being admitted for its truth without the right to confront the declarant. California ultimately adopted the view of Justice Thomas and the Williams dissent, holding that the Confrontation guarantee barred the admission of testimonial hearsay through an expert. (People v. Sanchez, 63 Cal. 4th 665, 684, 204 Cal. Rptr. 3d 102, 117, 374 P.3d 320, 333 (2016).) Pennsylvania could not resolve the issue, with justices split 3–3 on whether testimonial hearsay may be utilized by an expert under the Commonwealth’s Rule 703. (Commonwealth v. Brown, 185 A.3d 316, 340 (Pa. 2018).)

Given the ongoing national “confusion” regarding Williams, a case that has been cited 1,019 times by courts and even more in secondary sources, would granting certiorari have permitted clarification? Here, the answer involves some degree of reading tea leaves.

The dissent in Williams consisted of Justices Scalia, Ginsburg, Kagan, and Sotomayor (the last of whom joined Justice Gorsuch in dissenting from the denial of certiorari in Stuart). Justice Gorsuch’s Stuart dissent hews closely to Justice Scalia’s Crawford jurisprudence, and thus seems to replace him among the four. But Justice Thomas, while apparently agreeing with the 703 analysis, would not help Ms. Stuart, as the report admitted in her case was neither sworn to nor otherwise a “certified declaration of fact.” This means that Ms. Stuart’s fate, as well as clarification of Confrontation analysis as applied to forensic reports, rests with the newly appointed Justice Kavanaugh. If he were to follow the steps of his predecessor, Justice Kennedy, the Williams 4–1–4 divide would be replicated.

Justice Kavanaugh’s writing regarding the Confrontation guarantee and forensic reports is limited and not especially revealing, so one can only guess as to where he would land in this unsettled terrain. But whatever his inclination, the rest of us—judges, prosecutors, defense counsel, forensic service providers, and Evidence Law professors—are left still confused and instead reliant on lower court analyses when forensic lab reports enter the courtroom.


Jules Epstein

Jules Epstein is professor of law and director of Advocacy Programs at Temple Beasley School of Law and served as a member of the National Commission on Forensic Science.