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.