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The Sixth Amendment and DNA Evidence (June 30, 2016)

The Sixth Amendment’s Confrontation Clause states: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”[1] The Framers proposed it in 1789, and the States ratified it in 1791. They did so primarily to guard against certain historical abuses in criminal prosecutions, such as the ex parte examination of witnesses under the English bail and committal statutes passed during the reign of Queen Mary in the 16th century.

Now, in the 21st century, courts must decide how the Confrontation Clause applies to new forms of evidence that the Framers could not have foreseen. DNA evidence is a notable example. Do the text and history of the Confrontation Clause require the prosecution, before it may introduce DNA evidence at a criminal trial, to call as witnesses each and every laboratory technician who helped prepare that DNA evidence?

I don’t think so. In my view, the Supreme Court’s current reading of the Confrontation Clause has gone awry—with potentially serious consequences for the criminal-justice system. The caselaw has largely departed from the text of the Clause, as well as its history. The cases, starting with Crawford v. Washington,[2] focus too much on kinds of statements (i.e., “testimonial” statements) rather than, in the words of the Confrontation Clause, kinds of witnesses (i.e., “witnesses against” the accused).

Crawford held that “witnesses” are those who make “testimonial” statements and, in Davis v. Washington,[3] the Court refined the definition of “testimonial” statements to include statements made with the primary purpose of proving facts potentially relevant to a later prosecution, but not statements made with the primary purpose of enabling police to meet an ongoing emergency. But that refinement does not go far enough and has engendered increasing division on the Court as to whether the Confrontation Clause applied to forensic affidavits in Melendez-Diaz v. Massachusetts,[4] a forensic report in Bullcoming v. New Mexico,[5] and DNA evidence in Williams v. Illinois.[6]

My primary frustration with the myopic view of Crawford and its progeny—focusing on which statements are “testimonial” based on whether they were made for trial purposes—is that it lends itself to misapplication. It can and sometimes does cause courts (and scholars) to lose sight of which individuals the Framers would have viewed as “witnesses” within the original meaning of the Confrontation Clause. I seriously doubt the Framers would have considered certain individuals, who play a relatively minor role in a forensic test, to be “witnesses” against an accused.

Those individuals may include, for example, the mailroom employee who unpacks a blood sample and places barcodes on it. They may also include the lab technician who merely prepares a specimen for machine testing but who does not analyze the results, much less know the sources of the anonymous sample. I do not see how, under most circumstances, those individuals would be “witnesses” against the accused in any historically meaningful sense.

Indeed, courts (and scholars) should draw a much sharper distinction between constitutional problems related to confrontation, on the one hand; and evidentiary problems related to authenticity, chain of custody, and integrity of evidence, on the other hand. For instance, a prosecutor’s failure to call the mailroom employee or lab technician may undermine the weight of the evidence—and may even, depending on the circumstances, prevent the prosecutor from proving an essential element of a crime beyond a reasonable doubt. But that failure should not, without more, create a constitutional infirmity under the Confrontation Clause.

This brings me to the question whether the Confrontation Clause applies to DNA evidence. This question sharply divided the Supreme Court in Williams v. Illinois, where a majority of the Court agreed that the use of a DNA report at trial did not violate Williams’s confrontation right, but could not agree on a unifying rationale.[7]

In Williams’s bench trial for rape, an expert witness for the prosecution relied on that report to testify that Williams’s DNA matched DNA from semen found in vaginal swabs taken from the victim.[8] But the expert had not conducted or overseen the DNA testing; instead, she testified that her state laboratory had shipped the swabs to an outside laboratory and had received them back with an accompanying DNA report.[9] The prosecution introduced shipping manifests to establish the chain of custody.[10] Williams objected on Confrontation Clause grounds, arguing that the DNA report contained testimonial statements from lab technicians who had performed DNA testing for the report.[11] The state trial court disagreed, and the Illinois Court of Appeals and Illinois Supreme Court affirmed.[12]

The U.S. Supreme Court also affirmed, albeit in a deeply fractured set of opinions. No rationale commanded support from a majority of the Court. Justice Alito, in a plurality opinion joined by Chief Justice Roberts and Justices Kennedy and Breyer, reasoned in relevant part that the use of the DNA report at trial did not violate the Confrontation Clause because the report did not contain out-of-court statements having “the primary purpose of accusing a targeted individual of engaging in criminal conduct.”[13] Justice Thomas, in a separate opinion, said that the report did not implicate the confrontation right for a different reason, namely, because it did not contain any “formalized statements bearing indicia of solemnity.”[14] Justice Kagan, in a dissenting opinion joined by Justices Scalia, Ginsberg, and Sotomayor, argued that the report was in fact subject to the Confrontation Clause because, under the Court’s prior precedents, the report contained “testimonial” statements made to prove facts at a later criminal prosecution, rather than to help police meet an ongoing emergency.[15]

Presumably, the Williams dissenters would have required the prosecution to call as trial witnesses one or more lab technicians who personally participated in the DNA testing behind the report at issue in that case. But would it make sense, based on the Confrontation Clause’s text and history, to require the live, in-court testimony of some or all of the technicians who participate in a complex, multi-step DNA testing process? Those technicians often perform nothing more than discrete, ministerial, even perfunctory tasks at each step in the process; and, because they perform hundreds or thousands of DNA tests on anonymous samples that are identified only by barcodes, they are unlikely to remember any specific test.

How, as a practical matter, could confrontation be even remotely meaningful under those circumstances? And, if it is not, how could one argue that, as a historical matter, this is the confrontation the Framers had in mind when they proposed the Sixth Amendment? In other words, how could one argue that those technicians are “witnesses” within the meaning of the Confrontation Clause?

Sooner or later, the Supreme Court will have to provide answers. And further delay imposes high societal costs, as it leaves prosecutors without clear guidance on how they must introduce DNA evidence to satisfy the Confrontation Clause and thus preserve the validity of their convictions on appeal. The answers may have a profound impact on how tens of thousands of prosecutors try some of the most heinous crimes—where DNA evidence is highly probative because, for example, the identity of the perpetrator is at issue.

For my money, the Court should return to a more historically grounded understanding of the Confrontation Clause—one that focuses less on whether statements are testimonial, and more on whether the individuals who made those statements should be viewed as witnesses against an accused.

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[1] U.S. Const. amend. VI (emphasis added).

[2] 541 U.S. 36 (2004).

[3] 547 U.S. 813 (2006).

[4] 557 U.S. 305 (2009).

[5] 131 S. Ct. 2705 (2011).

[6] 132 S. Ct. 2221 (2012) (plurality opinion).

[7] Id.

[8] Id. at 2227.

[9] Id.

[10] Id.

[11] Id. at 2227–28.

[12] Id. at 2228.

[13] Id. at 2242–44.

[14] Id. at 2261–64 (Thomas, J., concurring in judgment).

[15] Id. at 2264–77 (Kagan, J., dissenting) (relying on Crawford and its progeny).

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