The issue was making its third appearance at the court since a groundbreaking 5-to-4 decision in 2009 that said such reports may not be used in criminal trials unless the analysts responsible for creating them provide live testimony. In a follow-up decision in June, also by a 5-to-4 vote, the court said that only the analyst who did the work, rather than a colleague or supervisor, would do.
The question for the justices on Tuesday was whether expert witnesses could offer opinions linking defendants to crimes based on lab reports that had not been admitted into evidence.
Justice Antonin Scalia, who has led a movement to breathe new life into the Sixth Amendment’s confrontation clause, said that expert testimony may not be used to smuggle evidence into a criminal trial without testimony from those who created it. The clause gives a criminal defendant the right “to be confronted with the witnesses against him.”
Justice Stephen G. Breyer, who joined the dissents in the earlier decisions, at times seemed to be engaged in an argument with Justice Scalia in which the lawyers before them had little role to play. Justice Breyer said there were good reasons to make an exception to the usual rules for reports from accredited, independent crime labs.
The alternative, he said, was “a sea change in normal criminal law practices” that could require testimony from 10 analysts in a single case, pushing “the system in the direction of relying on less reliable eyewitness testimony rather than more reliable technical laboratory DNA-type evidence.”
Tuesday’s case, Williams v. Illinois, No. 10-8505, arose from a sexual assault in Chicago. The defendant, Sandy Williams, was arrested on an unrelated charge and provided a DNA sample to the state police laboratory. A forensic scientist there analyzed it and later testified about Mr. Williams’s DNA profile at his trial on the sexual assault charges. So far, so good, Mr. Williams’s lawyers told the justices.
The controversy in the case concerns the material recovered from the assault. It was analyzed by Cellmark Diagnostic Laboratory in Maryland, but the lab’s report was not entered into evidence at trial and no one from that lab appeared to testify about it. But an expert witness for the prosecution was allowed to offer her opinion that the two profiles matched.
That appeared to trouble Justice Anthony M. Kennedy, which was something of a surprise, as he had written caustic dissents in the earlier decisions criticizing what he called the imposition of a crushing and needless burden on the nation’s criminal justice system.
“The key actor in the play, the Hamlet in the play, is the person who did the test at Cellmark,” he said. “And she or he is not here.”
Justice Kennedy referred to the court’s decision in June, Bullcoming v. New Mexico, which ruled that testimony from colleagues and supervisors uninvolved in the testing was not acceptable.
“In Bullcoming, at least you had an expert say how the laboratory works,” Justice Kennedy said, in a tone approaching exasperation. “Here, you don’t even have that. You have less here with reference to Cellmark than you did in Bullcoming.”
Michael R. Dreeben, a lawyer for the federal government, which supported the prosecutors in Tuesday’s case, said the confrontation clause need not figure in the court’s analysis, a position that seemed attractive to several justices.
The failure to call a witness from Cellmark may have made the case against Mr. Williams “very weak,” Mr. Dreeben said, but it did not violate the Constitution.
Justice Scalia was not satisfied.
“We have a confrontation clause, which requires that the witnesses
against the defendant appear and testify personally, and the crucial
evidence here is the testing of the semen found on the swab,” he said.
“That’s the crux of this evidence, and you’re telling me that this
confrontation clause allows you to simply say, Well, we’re not going to
bring in the person who did the test; we are simply going to say, ‘This is a
reliable lab.’ ” Mr. Dreeben replied, “The confrontation clause, Justice
Scalia, does not obligate the state to present a strong case.”