Part 1

Dexter’s Dilemma: Rule 703 Does Not Violate the Confrontation Clause

Ronald J. Coleman

Editor’s Note: This debate is on Williams v. Illinois, a Supreme Court case that involves the Confrontation Clause, which entitles a criminal defendant to confront an accusing witness in court. The issue at hand is whether said clause is infringed when a report not introduced into evidence at trial is used by an expert to testify about the results of testing that has been conducted by a non-testifying third party.

Imagine that Dexter Morgan, of the hit Showtime series Dexter, was called to testify at a criminal trial. Assume that Dexter is a qualified DNA expert and will testify based on his independent DNA analysis, but he wishes to also tell the jury that his opinion is supported not only by his experience, qualifications, and knowledge but also in part on the DNA lab report compiled by an outside lab (in which Dexter had played no role). If the analyst who prepared the report for the outside lab does not appear to testify at trial, would it violate the constitutional rights of the defendant in the case if Dexter is permitted to nevertheless disclose the result of the DNA report?

The answer to this question begins with the right of an accused to confront an adverse witness. The right to confront an accusatory witness has a lengthy common law history[1] and is ensured by the Sixth Amendment’s Confrontation Clause: “In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him[.]”[2] Although the Confrontation Clause grants the defendant a clear right to confront, much less clear is the exact scope and contours of that right. In recent years, the Supreme Court has had occasion to discuss the applications of the Confrontation Clause to forensic report cases.[3] One issue that the Court will soon need to consider, in the case of Williams v. Illinois, is the extent to which a criminal defendant’s Confrontation Clause rights are violated where a court allows an expert witness (like Dexter) to testify regarding the results of forensic testing conducted by a separate analyst who did not appear to testify at trial.[4] In the following debate, I will argue that the criminal defendant’s Confrontation Clause rights are not violated by allowance of such a disclosure.

Confrontation Clause Background

In order to better determine whether Dexter’s disclosure violates the criminal defendant’s rights, a very brief discussion of modern Confrontation Clause jurisprudence is helpful.

In determining whether the protections of the Confrontation Clause apply in a given case, the current Supreme Court (after Crawford and its progeny) appears to favor a form of statement analysis. Thus, the Supreme Court’s view appears to be that in a given case, a lower court should determine whether the statement itself is made for the primary purposes of providing the equivalent of in-court testimony (in short, is the statement itself “testimonial”). If the court determines that a given statement is “testimonial,” then the protections of the Confrontation Clause will attach to it (and admission of the statement would normally require the person making the statement to be present at trial for cross-examination, absent certain discrete circumstances). Under the Court’s form of statement analysis, the protections of the Confrontation Clause would apply to a statement made by any category of individual so long as the statement itself is deemed testimonial.

Some have argued for an alternative Confrontation Clause paradigm predicated upon the type of witness making the statement (rather than the form of the statement itself). One who favors a type-of-witness analysis might argue that the proper role of the Confrontation Clause is to permit the criminal defendant to confront a traditional accusatory witness (for instance, one who states that she saw defendant cross the street and go into the shop with a gun or that she noticed blood on the defendant’s cloths). A type of witness analysis would also permit a court to determine that scientific analysts were not the type of witnesses with which the Confrontation Clause is concerned because the reports they prepare are purportedly neutral (so the statements are not being made “against” the criminal defendant). If the Court had adopted a type of witness analysis, then Dexter would certainly have no trouble disclosing the results of the report (and in fact the report itself could even be admitted into evidence). However, the Court’s consistent majority position, especially after Melendez-Diaz, Michigan v. Bryant[5] and Bullcoming, appears to be that the form-of-statement analysis governs and that scientific analysts are not exempt from the Confrontation Clause.

Thus, a somewhat crude statement of the present state of Confrontation Clause jurisprudence in forensic cases might be that in order to introduce a forensic report in a criminal case, the prosecution will normally need to produce the preparing analyst in order to support introduction of the forensic report (absent, of course, unavailability and a prior opportunity to cross-examine).

The Current Debate Background

The prosecution in Dexter’s case, however, is not attempting to introduce the report itself into evidence. Instead, Dexter is merely attempting to orally disclose the results of the report in an effort to support his opinion in the case. Unlike a “lay witness,” an expert witness like Dexter is generally entitled to offer an opinion on matters of which the expert may not have personal knowledge. The idea is that the expert’s testimony will help aid the jury or judge in understanding complex issues. With the guidance of the expert, the jury will be better placed to exercise its own independent judgment in determining guilt or innocence.

In order for the jury to evaluate the credibility of the expert’s testimony, the jury (or judge) must understand the reasons why the expert has come to a certain opinion as to the case. In that connection, Rule 703 of the Federal Rules of Evidence (and similar state rules) permits an expert to disclose the underlying data and information that form the basis of her expert opinion (even where such underlying information itself is inadmissible) if certain criteria are met and if the disclosure’s probative value (in helping to explain the basis for the opinion of the expert) substantially outweighs the prejudicial effect of the disclosure (that is, the jury’s tendency to rely on the underlying data for its “truth”).

It is in the context of this Rule 703 disclosure of underlying data (which Dexter was attempting to employ) that the issue of the present debate arises. As discussed above, the Court has previously found that forensic reports prepared by purportedly neutral analysts are testimonial statements and that in order to introduce those statements the prosecution must comply with the safeguards of the Confrontation Clause (which normally requires presenting the preparing analyst for in-court cross-examination). This means that if the preparing analyst does not appear to support the report, the court violates the rights of the criminal defendant under the Confrontation Clause if the court admits the report and it is used against the criminal defendant. At the same time, pursuant to Rule 703 and similar state rules, a separate independently qualified expert may appear at trial and testify as to her independent opinion and then in certain circumstances may also disclose the very same data through oral testimony that the Confrontation Clause would otherwise appear to prohibit. For the reasons discussed below, I do not believe that use of Rule 703, subject to some reasonable restrictions, violates a criminal defendant’s rights under the Confrontation Clause.

Rule 703 and the Confrontation Clause

If properly interpreted, Rule 703 disclosure is wholly consistent with the rights of criminal defendants under the Confrontation Clause (and Dexter could disclose the results of the report in his testimony).

The central purpose of the Confrontation Clause is to grant the criminal defendant a right to face and cross-examine her accuser. Rule 703 (or an analogous state rule) does not prevent the cross-examination of a sufficient witness. First, the accusatory statement should be viewed as being made by the testifying expert rather than by the disclosed report (or the analyst who prepared the report). Unlike in a case where the prosecution attempts to admit the actual report itself (which the Court has found violates the Confrontation Clause), in a Rule 703 disclosure case the actual report is never admitted and the disclosed information should not be used for its truth. Instead, what is admitted is the opinion of the expert and the underlying data that helps to explain why the expert holds the independent opinion that she holds. Thus, the proper witness to confront in a Rule 703 disclosure case is the testifying expert, not the preparing analyst of the disclosed report. Second, even if one is concerned that the underlying data could persuade the jury as to truth, the expert is available for cross-examination as to the common problems associated with DNA and other forensic tests. In fact, the expert should be sufficiently qualified with regard to the specific tests, machines, and procedures involved in the case and thus would be in an excellent position to answer questions regarding the accuracy of such tests and machines on cross-examination. The right to confront is procedural (and does not necessarily ensure that the evidence presented is credible). The testifying expert can sufficiently afford the defendant her procedural right.

Further, the residual concern regarding inappropriate uses of the disclosed underlying data by the jury may be alleviated with a properly crafted jury instruction. The court could (and should) make explicitly clear the reasons for allowing disclosure of the underlying data, the permissible uses of such data, and the uses for which the jury should not use the data. Although there is certainly a concern that jury instructions may not be wholly effective, jury instructions are pervasively used in the laws of evidence and, in any event, an evaluation of the efficacy of jury instructions is best left for a separate debate.

Finally, Rule 703 disclosure strikes a proper balance between the rights of the criminal accused and the modern reality of law enforcement technology. Although law enforcement policy concerns should not trump the clear Confrontation Clause rights of a criminal defendant, law enforcement concerns are far from irrelevant (especially where the scope of the right is so unclear). In modern forensic tests (such as DNA), multiple individuals are involved in the analyses and tests, and labs are relied upon to facilitate tests for numerous cases. Although after Bullcoming the prosecution may not enter the report of DNA analysis itself into evidence (absent compliance with the Confrontation Clause), it would prove perhaps an even greater burden upon criminal prosecutions (and the victims of criminal conduct) if an expert could not even support her independent opinion with the facts and data from forensic reports (unless the prosecution could locate an analyst to support each report upon which the expert bases her opinion in part). Who could be available to conduct the required DNA and forensic tests while the preparing analysts are appearing in court? What if the testimony stretched over multiple days? What if the expert relies, in part, on each of fifteen external reports? The effects on law enforcement policy would be substantial and should not be wholly ignored.

Rights Are Not Violated

For the reasons above, the criminal defendant’s Confrontation Clause rights are not violated where a court allows an expert witness to testify regarding the results of forensic testing conducted by a separate analyst who did not appear to testify at trial. Dexter should be allowed to disclose.

Note: The opinions expressed in this article are solely the personal views of the author and constitute neither legal advice nor the opinions of Cleary Gottlieb.

[2] U.S. Const. amend. VI; see also Crawford v. Washington, 541 U.S. 36 (2004).

[3] See Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009); Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011).

[4] See People v. Williams, 939 N.E. 2d 268 (Ill. 2010), cert. granted, No. 10-8505, 2011 WL 2535081 (U.S. June 28, 2011). The Supreme Court will hear this case as Williams v. Illinois.

[5] 131 S. Ct. 1143 (2011).

NEXT: Paul Rothstein responds to Ronald J. Coleman.