One of the most pressing issues before attorneys and courts has arisen in the wake of a highly unclear decision issued by the Supreme Court, concerning the Confrontation Clause of the Sixth Amendment to the Constitution, and whether expert testimony is permissible under that Clause. See Williams v. Illinois, 132 S.Ct. 2221 (Jun. 28, 2012). After the Supreme Court issued a 5-4 decision, with two separate pluralities (4 concurring opinions) and one lone dissent, the lower courts have had a trying time applying Williams to expert testimony. For the litigator, however, it is important to understand what Williams did and didn’t say, what lower courts are likely to do, and why all of this greatly affects experts. Whether the case at hand is civil or criminal, Williams has been discussed and grappled with by nearly every lower court and, accordingly, regardless of practice area, its potential implications should be made clear to every attorney.
The appellant in Williams challenged certain expert testimony from a crime lab and police officers, arguing that the original witness, who had identified the substances at issue as cocaine had taken a maternity leave and was unavailable to have her testimony “confronted.” Further, the appellant claimed that because the initial expert’s supervisor was testifying, the appellant was denied the right to confront the witness, under the Sixth Amendment. The case was remanded by the Supreme Court to the Seventh Circuit Court of Appeals, where a bewildered court ultimately let the defendant go free.
Under Federal Rule of Evidence 703, “the information on which the expert bases [an] opinion need not itself be admissible into evidence in order for the expert to testify.” Michael OHear, “Crime Analysts may have Violated Confrontation Clause, But any Error was Harmless,” Seventh Circuit Court of Appeals Updates (Mar. 5, 2013). When the case was remanded to the Seventh Circuit, it claimed that the appellant had, at least, cast doubt on two elements of the supervisory crime technician/substitute expert’s statements and evidence. First, the “substitute” witness did “effectively repeat the out-of-court statements made by [the original expert witness].” Id. Apparently, the testifying expert relied upon the initial expert’s notes, in order to assert that she had adhered to the standard practice, in determining that the substance at issue was cocaine. The second element, which was viewed with some skepticism and, ultimately, rejected as proper evidence by the court, concerned the testifying witness’s own conclusions and claims. As the Seventh Circuit asserted, “[The substitute witness] put [the original witness’s] out-of-court statements before a jury, and the jury was invited to consider these statements for their truth.” Id.
The problem, then, lay not with the supervisor/substitute expert’s testimony, per se, but rather with the court’s feeling that he was attempting to prove the “truth of the matter,” or what actually happened, through the hearsay testimony of an unavailable witness who had initially handled the evidence and case.
The Current Trend: What Attorneys Need to Know:
Nearly every lower court (whether criminal or civil) since Williams has indicated confusion, in every type of case, from product liability to patent infringement, regarding what Williams intended.
One thing is clear, and attorneys should be on notice: The trend, among lower courts, is to permit the “substitute” expert’s testimony, but merely not to for the sake of proving the “truth of the matter.” The lower courts appear to believe the testimony should be permissible (as at least one plurality in Williams suggested) and that out-of-court statements regarding the results of lab tests are not “testimonial” in nature and should accordingly, not be subject to challenges under the Confrontation Clause.
Guidance: What Attorneys can do in the wake of Williams:
Williams is a tough case to grapple with, as it raises the question of how heavily a testifying expert witness can depend upon statements, reports, conclusions, and results found by non-testifying expert witnesses. See “Retrospective: Ten Key Evidence Issues From 2012,” Federal Evidence Review, http://federalevidence.com/blog/2013/january/retrospective-ten-key-evidence-issues-2012#Williams (Jan. 2, 2013) (Williams is listed as the #1 issue).
However, it is not insurmountable and should not discourage attorneys from working with experts. On the contrary, Williams highlights the need for expert witness testimony; it merely questions under what conditions it might be subject to the Confrontation Clause. See Williams, supra. The plurality opinion of Justices Breyer, Alito, Roberts, and Kennedy indicates that lab evidence is not “testimonial” and should not be subject to the Confrontation Clause. Even Justice Thomas, who did not join either plurality, argued that laboratory testimony and evidence are not “testimonial,” for purposes of the Confrontation Clause, and Justice Breyer went further, stating that expert witness testimony should not be viewed as “testimonial” at all, freeing it from Sixth Amendment, or similar, challenges. See id.
So, what is an attorney, with valuable expert evidence that is not wholly comprised of direct evidence/testimony (which, incidentally, is the norm and widely-accepted in courts of every jurisdiction) to do?
First, pay close attention to Williams and later cases citing it in the lower courts. The trend will become increasingly evident, and a smart attorneys can use the Supreme Court justices arguments as their own, to further the credibility and admissibility of any legitimate expert witness.
Second, a strong argument can be made by attorneys that, “scientific and expert evidence…warrant…special treatment, based on…the most critical dimensions of scientific knowledge production — that it is a collective, rather than an individual enterprise. Recognizing that scientists inevitably rely and build on facts, data, opinions, and test results of others,…courts should engage in a modest form of scientific exceptionalism within Confrontation Clause jurisprudence.” Jennifer Mnookin & David Kaye, “Confronting Science: Expert Evidence and the Confrontation Clause,” Supreme Court Review, Forthcoming
Penn State Law Research Paper No. 11-2013 (Feb. 23, 2013).
Certainly, Federal Rule of Evidence 703 recognizes the distinction between expert witnesses and non-experts. Latitude is already built into the Rules, with the understanding that experts and science should not be subject to the same limitations as their non-expert counterparts. These sections of the Rules should be cited and relied upon by Attorneys, to indicate what the legislative and framers’ intent was in making those very exceptions for experts. Science is a collaborative enterprise, but it’s a highly important and widely accepted one. Attorneys must make these arguments before courts, where they are very likely to face amenable judges who are, themselves, grappling with what Williams means and would sincerely appreciate enlightenment by a well-prepared attorney.
Finally, attorneys should look to the Confrontation Clause, itself. It concerns criminal defendants, not civil ones. Although the scope of Williams is far-reaching, and civil courts have begun to question if it applies to them, attorneys should emphasize that the Framers’ intent was clearly to apply this clause to criminal defendants only. It should not be widened or construed differently, merely because it “seems” appropriate.
With the information and arguments aforementioned at their fingertips, attorneys should not fear Williams, but should instead, view it as an opportunity to help lower courts understand and, ultimately, apply the standards that offer experts the most latitude possible, when considering the Confrontation Clause. Modern literature indicates that the trend is to embrace testifying experts, even if they are “substitute” witnesses, provided the attorney shows: a clear link between the original witness and testifying one, and a legitimate reason for why the change was made. In following the trends, re-familiarizing themselves with history (both the Federal Rules and Confrontation Clause), and utilizing some of the strategies herein, attorneys may find themselves not only reviewing history, but also making it.
By: Kat Hatziavramidis, Attorney-at-Law