Confronting Expert Testimony

In a criminal case, can the opinion of one expert or technician come into evidence through the testimony of another expert?

If one of the jobs of the United States Supreme Court is to give practitioners guidance on what is allowable in the courtroom, the court has failed when it comes to the effect of the Confrontation Clause on the admission of expert reports. In Williams v. Illinois,[1] the court gave us four opinions, with no clear majority opinion, and little guidance as to why an expert may sometimes testify about the opinions or results from another expert without violating the Confrontation Clause. Tennessee law, however, may provide a clearer, and likely different, answer.

The fractured opinions in Williams v. Illinois certainly do not answer the questions of Tennessee lawyers who want to introduce or prevent the introduction of expert or technical reports. However, the unique history and language of Tennessee Constitution and the Tennessee Rules of Evidence mean that Tennessee courts will likely come to a different conclusion than the U.S. Supreme Court, making it unlikely that an expert in Tennessee can testify about another expert’s conclusion.

Rebirth of the Confrontation Clause

First, let’s take a look at how we got to this point. Until 2004, the United States Supreme Court opined that the admission of hearsay under a well-established hearsay exception did not violate the Confrontation Clause.[2] In Crawford v. Washington,[3] however, the court acknowledged that the right of confrontation would be violated by the admission of “testimonial” hearsay, even when that hearsay would be admissible under a well-defined exception. The simple chart below summarizes the holdings of selected post-Crawford cases from the U.S. Supreme Court and Tennessee courts.

Federal Cases Subject Holding
Crawford v. Washington, 541 U.S. 36 (2004) Tape recorded statement of unavailable spouse, which was admissible under hearsay exception Even if admissible under a hearsay exception, testimonial statements are barred absent the right of confrontation.
Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) Victim’s 911 call identifying defendant as assailant Not testimonial; no confrontation clause violation
Hammon v. Indiana, 547 U.S. 813 (2006) Domestic violence victim’s written statements to investigating officer Testimonial; Confrontation Clause violated
Giles v. California, 554 U.S. 353, 128 S.Ct. 2678, 171 L.Ed.2d 488 (2008) Addressing forfeiture by wrongdoing Exception does not allow admission of hearsay absent proof defendant intended to silence witness
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) Sworn, Notarized Forensic Report regarding drugs Testimonial, regulated by Confrontation Clause
Bullcoming v. New Mexico (2012) Blood alcohol report introduced by lab technician who did not perform test Violation of Confrontation Clause; required confrontation of the analyst who prepared the report
Michigan v. Bryant, 562 U.S. —, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011) Victim’s statements to police who were responding to “ongoing emergency” Non-testimonial; no violation of Confrontation Clause
Williams v. Illinois, 132 S. Ct. 2221, 183 L. Ed. 2d 89 (2012) In a bench trial, expert testimony that there was “a computer match generated of the male DNA profile found in semen from the vaginal swabs of [rape victim] to a male DNA profile that had been identified as having originated from [defendant]” No violation of Confrontation Clause; not for truth of matter asserted; not testimonial.
Tennessee Cases Subject Holding
State v. Franklin, 308 S.W.3d 799 (Tenn. 2010) Witness wrote down tag number Non-testimonial; no violation of Confrontation Clause
State v. Cannon, 254 S.W.3d 287 (Tenn. 2008) 1.    Victim Statements to Emergency Room personnel
2.    Statements to responding police officer absent ongoing emergency
3.    Statements to nurse/sexual assault examiner
4.    Victim statements to investigator at Emergency Room
1.    Non-testimonial; no violation
2.    Testimonial; barred by Confrontation Clause
3.    Testimonial, designed to establish past events relevant to prosecution
4.    Testimonial
State v. Lewis, 235 S.W.3d 136 (Tenn. 2007) Statements by victim while still at crime scene Testimonial

What makes the result in Williams v. Illinois surprising is that, after Crawford, the court decided two cases indicating that expert or technical reports could not be introduced in a criminal trial for the truth of the matter asserted unless the author/technician was subject to cross-examination. In Melendez-Diaz v. Massachussets,[4] the court rejected the admission of sworn, certified reports of an analyst who concluded a substance was cocaine. In Bullcoming v. New Mexico,[5] the court held the Confrontation Clause was violated by the admission of a toxicology report even when another analyst from the lab was on the stand testifying about the report. Only the presence of the analyst who created the report would allow the defendant’s counsel to ask questions to determine whether “lapses or lies” tainted the report.[6]

Willams v. Illinois Takes the Court in a Different Direction

A year after holding in Bullcoming that one expert could not testify about a lab-mate toxicologist’s report, the court held that one expert may testify about another lab’s findings in another state.

In Williams v. Illinois, a DNA sample had been taken from a rape kit and sent to a lab in Maryland for analysis. At the defendant’s trial, a DNA expert opined that the defendant’s profile in the DNA database matched a DNA profile produced by the Maryland lab from the analysis of the rape kit. No one from the out-of-state lab testified at trial.

Justice Alito’s plurality opinion for four justices concluded that the testifying expert’s statements did not violate the Confrontation Clause. First, the plurality concluded that the statements regarding the lab’s findings were not introduced for the truth of the matter asserted and thus were not barred by the Confrontation Clause. Rather, Justice Alito concluded that the questions about the lab reports merely provided the premise for the expert’s conclusions.[7] Justice Thomas’s concurrence pointed out that introducing evidence that the DNA found on a rape kit matched the defendant can hardly be said to have been for any reason other than the truth of the matter asserted.[8] Why mention the DNA match if it was not for the truth of the matter?

Second, the plurality opinion concluded that the Confrontation Clause was not violated because the DNA report was created before the defendant became a suspect and thus was not testimonial against him.[9] Despite being partly couched in the terminology of Crawford, the opinion is largely based on a conclusion that a contrary rule would make the introduction of DNA evidence too difficult. Both the plurality opinion and Justice Breyer’s concurrence rely on the cost of bringing in the technician:

If DNA profiles could not be introduced without calling the technicians who participated in the preparation of the profile, economic pressures would encourage prosecutors to forgo DNA testing and rely instead on older forms of evidence, such as eyewitness identification, that are less reliable.[10]

Justice Breyer noted:

In general, such a holding could also increase the risk of convicting the innocent. … [T]he additional cost and complexity involved in requiring live testimony from perhaps dozens of ordinary laboratory technicians who participate in the preparation of a DNA profile may well force a laboratory “to reduce the amount of DNA testing it conducts, and force prosecutors to forgo forensic DNA analysis in cases where it might be highly probative. In the absence of DNA testing, defendants might well be prosecuted solely on the basis of eyewitness testimony, the reliability of which is often questioned.”[11]

Justice Thomas’s concurrence recognizes that the statements were clearly offered for the truth of the matter asserted — that the DNA belonged to the defendant — but he concurred based on his solitary view that “Cellmark’s statements lacked the requisite ‘formality and solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation Clause.”[12] It is generally understood that when there is no clear majority, the controlling opinion is the one with the narrowest rationale. In this case that would be Justice Thomas’s holding that testimonial evidence must be formalized. This, however, is a view that he alone on the court espouses.

The dissenting opinion points out the difficulties in squaring Williams v. Illinois with the court’s recent Confrontation Clause cases. Justice Kagan questioned, “Have we not already decided this case?” in reference to Melendez-Diaz and Bullcoming.[13] For having undermined the growing line of consistent post-Crawford cases, the plurality earned the ire of the dissent for relying upon “five votes to approve the admission of the Cellmark report, but not a single good explanation.”[14]

Tennessee Confrontation Clause

Although Tennessee courts have attempted to maintain alignment with cases interpreting the federal Confrontation Clause, it is worthwhile to note that the two constitutions have substantially different language.[15] The Confrontation Clause of the Sixth Amendment provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” Article I, section 9 of the Tennessee Constitution guarantees this right, providing “[t]hat in all criminal prosecutions, the accused hath the right to ... meet the witnesses face to face ….”[16]

While the Tennessee Supreme Court generally interprets the two provisions to have similar purpose and meaning, there is a strong argument that Williams v. Illinois marks a change in the United States Supreme Court’s interpretation of the Confrontation Clause, and therefore the Tennessee Supreme Court may want to consider very carefully whether the Williams v. Illinois plurality opinion is consistent with Tennessee precedent.

The recent Confrontation Clause cases in Tennessee have followed the Crawford rationale closely. In State v. Franklin,[17] the defendant’s confrontation right was not violated under the federal or state constitutions where a bystander had written down an automobile license tag number and reported it in response to a plea of help for a person in need of assistance. The fact that the tag number became relevant to a later prosecution did not make the reporting testimonial, the Tennessee Supreme Court concluded, because that was not the purpose at the time.

In State v. Cannon,[18] the court examined several different categories of statements under Crawford. The court held that statements to emergency room personnel memorialized in the victim’s medical records were non-testimonial and therefore not barred by the Confrontation Clause. Statements to the police officer who responded to the victim’s 911 call, however, were testimonial because there was no ongoing emergency. Similarly, statements to a detective at the emergency room and statements to a sexual assault examiner were both deemed testimonial because the primary purpose of the nurse’s interrogation of the victim was to establish past events relevant to a later prosecution.

In State v. Lewis,[19] statements taken from a victim, while still at the crime scene, were testimonial and were barred by the Confrontation Clause because the statements were summaries of past criminal events being used to prepare for prosecution.

Based on Tennessee precedent and the specific text of the Tennessee Constitution, I believe that no matter what the U.S. Supreme Court’s current understanding of the Sixth Amendment may be, there is a real question as to whether allowing one expert to describe conclusions of another expert can satisfy the Article 1, section 9 right guaranteed to defendants to meet witnesses face-to-face.

The Role of Rule 703

Although I have addressed the constitutional question first, courts must avoid such questions unless necessary. In Tennessee, this means that Tennessee trial courts may never have to address whether the right to confront witnesses requires the exclusion of one expert’s opinion being offered through the testimony of another, because our Rules of Evidence may resolve the issue. In Holder v. Westgate Resorts,[20] the Tennessee Supreme Court addressed a similar issue and found that a reference to another expert’s opinion was properly excluded. In that case, the plaintiff filed a premises liability action. The defense expert testified regarding whether the property complied with codes. The defense expert proposed to testify that he had called the International Code Council and had spoken with them to confirm the opinion. The court held that while experts routinely consult with other experts, Rule 703 does not permit a testifying expert to be a mouthpiece for a non-testifying expert. The testimony was properly excluded.

While Rule 703 has been amended since Holder v. Westgate Resorts, the text of the amended rule would generally prohibit reference to another expert’s findings. The 2009 amendment to the Tennessee Rules of Evidence added this sentence:

Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.

Thus, in a jury trial, the proponent of admitting hearsay through an expert has a heavy burden under the Rule. The result in Williams v. Illinois was based in part on the fact that the trial was a bench trial.[21] Thus a strong argument can be made, especially in a jury trial, that both the Tennessee Confrontation Clause and the Rules of Evidence bar one expert from describing the findings of a non-testifying expert.

Conclusion

The United States Supreme Court’s decision in Williams v. Illinois does not guarantee that an expert should be allowed to describe the opinions of a non-testifying expert. Both the Tennessee Constitution’s “face-to-face” requirement and Rule 703 likely bar such testimony in this state.

Notes

  1. Williams v. Illinois, 132 S. Ct. 2221, 2251, 183 L. Ed. 2d 89 (2012).
  2. See Ohio v. Roberts, 448 U.S. 56, 66 (1980).
  3. Crawford v. Washington, 541 U.S. 36, 50 (2004).
  4. Melendez-Diaz v. Massachussets, 557 U.S. 305 (2009).
  5. Bullcoming v. New Mexico, 564 U.S. ___ , 131 S.Ct. 2705, 180 L.Ed2d 610 (2011).
  6. 564 U.S. at ___, 131 S. Ct. 2705, 2715, 180 L. Ed. 2d 610 (2011).
  7. Williams v. Illinois, 132 S. Ct. 2221, 2236, 183 L. Ed. 2d 89 (2012) (“Rather, that fact was a mere premise of the prosecutor’s question, and Lambatos simply assumed that premise to be true when she gave her answer indicating that there was a match between the two DNA profiles. There is no reason to think that the trier of fact took Lambatos’ answer as substantive evidence to establish where the DNA profiles came from.”).
  8. Williams, 132 S. Ct. at 2256 (“[T]here was no plausible reason for the introduction of Cellmark’s statements other than to establish their truth.”) (Thomas, J., dissenting).
  9. Williams, 132 S. Ct. at 2228.
  10. Williams, 132 S. Ct. at 2228.
  11. Williams, 132 S. Ct. at 2251 (Breyer, J., concurring).
  12. Williams, 132 S. Ct. at 2255 (Thomas, J., concurring).
  13. Williams, 132 S. Ct. at 2267 (Kagan, J., dissenting).
  14. Williams, 132 S. Ct. at 2265 (Kagan, J., dissenting) (emphasizing the importance of confrontation with a story from a trial in which a witness from the same DNA lab at issue misidentified a profile and was only corrected on cross-examination).
  15.  “Although the language of the federal and state constitutional provisions is somewhat different, in determining the rights of an accused under article I, section 9, we have traditionally adopted and applied the standards enunciated by the United States Supreme Court. State v. Lewis, 235 S.W.3d 136, 144 (Tenn. 2007) (citing authorities).” State v. Cannon, 254 S.W.3d 287, 301 (Tenn. 2008). The Tennessee Supreme Court also recognized that, “[W]hen interpreting the state constitutional provision, this court has departed from federal precedent only when … linguistic differences justify distinct interpretations of state and federal constitutional provisions.” State v. Vineyard, 958 S.W.2d 730, 733-34 (Tenn. 1997).
  16. Tenn. Const. art. I, § 9.
  17. State v. Franklin, 308 S.W.3d 799 (Tenn. 2010).
  18. State v. Cannon, 254 S.W.3d 287 (Tenn. 2008).
  19. State v. Lewis, 235 S.W.3d 136 (Tenn. 2007).
  20. Holder v. Westgate Resorts, 356 S.W.3d 373.
  21. 132 S. Ct. at 2234-35.

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.