Can lab tests stand in court, short of expert testimony?

WASHINGTON -- The Supreme Court on Tuesday tackled the consequences of its recent decisions that broadly interpret a defendant's right to confront witnesses against him, including when DNA and other lab reports are used at trial.

Justice Stephen Breyer expressed concerns that a "sea change in normal criminal law practices" may be underway that could require "up to 10 technicians" from a multistep DNA analysis to testify if a report is cited.

Breyer said requiring multiple technicians to appear at trial could cause prosecutors to forgo reliable lab evidence and use less reliable eyewitness testimony.

Other justices, notably Antonin Scalia, who has led the trend expanding confrontation rights, suggested by his comments that a need for as many as 10 technicians was unlikely. Scalia has continued to insist that reports from blood or semen evidence should not be offered, even indirectly, without key people who prepared them being available for cross-examination.

Scalia said a prosecutor could bring in just one technician "if he thinks the jury will be sufficiently persuaded."

Tuesday's appeal by an Illinois rape convict is part of a recent series of cases testing the reach of a defendant's right to be "confronted by the witnesses against him." A narrow majority has expanded that Sixth Amendment right in cases involving a range of witness testimony, including the introduction of forensic reports.

By a 5-4 vote in a 2009 Massachusetts case, the court said defendants have the right to cross-examine the person who prepares such blood, ballistic and other laboratory reports used at trial.

The new dispute, closely watched by prosecutors and defense lawyers nationwide, tests situations in which a report is not introduced at trial but is used as the basis for testimony by another expert witness. A ruling would refine the rules for when analysts must be available for trial.

Ohio and 41 other states have entered the case on the side of Illinois, arguing that scientific witnesses should be able to offer independent analyses of forensic evidence without the need to bring in the people who generated the underlying data. Defense groups such as the California Public Defenders Association counter that if those who prepared the underlying reports are not called, a defendant will not be able to probe their qualifications or record.

No consensus from the justices seemed clear Tuesday.

At the heart of the Illinois case is a DNA analysis prepared by the Maryland-based Cellmark Diagnostics. The Cellmark report was not introduced at the trial of defendant Sandy Williams but was incorporated into conclusions offered by an Illinois forensic analyst who testified that the DNA from Williams' blood sample matched semen obtained from a swab of the rape victim analyzed by Cellmark.

The Illinois Supreme Court ruled that the Cellmark report did not touch on the Constitution's confrontation right because it was used only "to show the underlying facts and data" that the Illinois analyst employed before giving her expert opinion.

Appealing that ruling Tuesday, Williams' lawyer, Brian Carroll, told the justices that Cellmark analysts should have appeared at trial so that Williams could effectively challenge witnesses against him.

Justice Samuel Alito, who like Breyer has dissented from the recent line of cases on confrontation rights, questioned why any Cellmark witnesses would have been needed: "Hasn't it long been accepted that experts may testify to the facts that form the basis for their opinions," he asked, adding that such experts are "mentioning facts that form the basis of the opinion but not testifying to the truth of those."

Along those lines, lawyers for the state of Illinois have insisted that the forensic analyst's testimony consisted of her independent judgment, rather than a parroting of the Cellmark analysis.

State's Attorney Anita Alvarez told the justices Tuesday that the forensic analyst "gave her own independent expert opinion based on her skills, her knowledge, her expertise."

Justice Ruth Bader Ginsburg, who has been in the court majority expanding confrontation rights, was skeptical. "I don't understand how [the] testimony can be independent of test results supplied" by Cellmark," she said. "It is entirely dependent on them."

Scalia added that it's crucial for the judge or jury to know how a lab is run and whether they have "incompetent people there."

"The last case we had involving this kind of issue," he said, "the reason they didn't bring in the lab technician to testify, was that he had been fired in the interim for some reason, which we didn't know. But it was pretty clear why he would not have been a very good witness."

In the Williams case, Scalia added, "We don't know how good the individuals who did the test were. And that's why it's up to the state to bring forward testimony saying what the lab did. And the only testimony they brought forward was the testimony of this witness who was not there."

Justice Anthony Kennedy has dissented as the majority has required additional witnesses, yet he voiced concerns Tuesday about the Illinois situation. He said in a related case last term, "At least you had an expert say how the laboratory works. Here, you don't even have that."

A ruling in the case of Williams v. Illinois is likely by the end of June when the justices recess for the summer.