The US Supreme Court is set to hear another case on what appears to be the biggest hot button topic in the courthouse - confrontation.
In Williams v. Illinois, 939 NE.2d 268 (Illinois 2010), Sandy Williams was charged with two counts of aggravated sexual assault, aggravated robbery and aggravated kidnapping. At trial the state chose not to call the lab analyst who ran DNA tests on swabs in a rape kit. The state did not seek to introduce the lab report into evidence but called another lab analyst as an expert witness. The state's expert then testified as to the method by which DNA samples are tested. She was then asked to give her opinion as to whether the DNA profile from the sample "matched" the DNA profile of Mr. Williams. She claimed she reviewed the lab report in coming to her opinion.
The defense objected to the analyst's testimony on the grounds that Mr. Williams' Sixth Amendment right to confront the witnesses against him was violated as he was not afforded the opportunity to cross examine the analyst who performed the actual tests upon which the lab results were based.
The judge ruled that this was not a Crawford matter and that the real issue was how much "weight" to give the evidence, not whether it should be excluded.
The Supreme Court will now decide if this scenario falls within the holding in Bullcoming. In that case Justice Sotomayor penned a concurrence that seemed to indicate she thought it was acceptable for the state to put on an expert witness (who did not conduct the test in question) to give their "independent" opinion of the results of the test.
While the rules of evidence allow experts to base their opinions on documents that would not be admissible in a court proceeding, that rule had more to do with the sources of the experts' knowledge than with giving an opinion based on someone else's (otherwise) inadmissible report.
Allow the state to get away with such a blatant end-run around Crawford would deprive defendants from questioning the analysts who conducted lab tests about the procedures used in the test. It would prevent defendants from questioning analysts about whether tests were conducted properly and in accordance with generally accepted standards.
Let's get real here. The state's "expert" did not give an "independent" opinion on the lab results. The "expert" was chosen because she would testify that the lab results indicated that Mr. Williams did what he was accused of. The "expert's" opinion was based upon a lab report that was inadmissible since the state didn't call the actual analyst to the stand. And, to top it off, claiming that the real issue is the weight to be given the expert's opinion, and not whether Mr. Williams' confrontation rights were violated, makes an absolute mockery of a person's right to confront his accusers. The assumption of the court is that the analysis was good science - whether or not the state met its burden to prove so.
Confrontation is not a right that can be "balanced" by some scale that weighs the rights of the accused against the level of inconvenience for the state.