Williams v. Illinois (2012)

567 U.S. _

Case Year: 2012

Case Ruling: 5-4, Affirmed

Opinion Justice: Alito

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Breyer, Kennedy, Roberts, Thomas


1st Concurring Opinion

Author: Breyer


1st Dissenting Opinion

Author: Kagan

Joiner(s): Scalia, Ginsburg, Sotomayor

2nd Concurring Opinion

Author: Thomas


2nd Dissenting Opinion



3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


In Williams’s bench trial for the rape of L.J., the prosecution called an expert, Sandra Lambatos, a forensic specialist at the Illinois State Police (ISP) lab, who testified that a DNA profile produced by an outside laboratory, Cellmark, matched a profile produced by the state police lab using a sample of the petitioner’s blood. On direct examination, Lambatos testified that Cellmark was an accredited laboratory and that Cellmark provided the police with a DNA profile. She also explained the notations on documents admitted as business records, stating that, according to the records, vaginal swabs taken from the victim were sent to and received back from Cellmark. Lambatos made no other statement that was offered for the purpose of identifying the sample of biological material used in deriving the profile or for the purpose of establishing how Cellmark handled or tested the sample. Nor did the expert vouch for the accuracy of the profile that Cellmark produced.

Williams contended that the expert’s testimony violated the confrontation clause as interpreted by the Supreme Court in Crawford v. Washington (2004). His main argument is that Lambatos went astray when she referred to the DNA profile provided by Cellmark as having been produced from semen found on the victim’s vaginal swabs. Both the Illinois Appellate Court and the Illinois Supreme Court rejected this argument. They found that Lambatos’s statement was not admitted for the truth of the matter asserted, and it was settled that the confrontation clause does not bar the admission of such statements.



For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the expert in this case. Under settled evidence law, an expert may express an opinion that is based on facts that the expert assumes, but does not know, to be true. It is then up to the party who calls the expert to introduce other evidence establishing the facts assumed by the expert. While it was once the practice for an expert who based an opinion on assumed facts to testify in the form of an answer to a hypothetical question, modern practice does not demand this formality and, in appropriate cases, permits an expert to explain the facts on which his or her opinion is based without testifying to the truth of those facts. That is precisely what occurred in this case, and we should not lightly “swee[p] away an accepted rule governing the admission of scientific evidence.”

We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision has no application to out-of-court statements that are not offered to prove the truth of the matter asserted. When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause. Applying this rule to the present case, we conclude that the expert’s testimony did not violate the Sixth Amendment.

As a second, independent basis for our decision, we also conclude that even if the report produced by Cellmark had been admitted into evidence, there would have been no Confrontation Clause violation. The Cellmark report is very different from the sort of extrajudicial statements, such as affidavits, depositions, prior testimony, and confessions that the Confrontation Clause was originally understood to reach. The report was produced before any suspect was identified. The report was sought not for the purpose of obtaining evidence to be used against petitioner, who was not even under suspicion at the time, but for the purpose of finding a rapist who was on the loose. And the profile that Cellmark provided was not inherently inculpatory. On the contrary, a DNA profile is evidence that tends to exculpate all but one of the more than 7 billion people in the world today. The use of DNA evidence to exonerate persons who have been wrongfully accused or convicted is well known. 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. The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant who really wishes to probe the reliability of the DNA testing done in a particular case because those who participated in the testing may always be subpoenaed by the defense and questioned at trial. . . .

The principal argument advanced to show a Confrontation Clause violation concerns the phrase that Lambatos used when she referred to the DNA profile that the ISP lab received from Cellmark. This argument is developed most fully in the dissenting opinion, and therefore we refer to the dissent’s discussion of this issue.

In the view of the dissent, the following is the critical portion of Lambatos’ testimony, with the particular words that the dissent finds objectionable italicized:

“Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L.J.] to a male DNA profile that had been identified as having originated from Sandy Williams?

“A Yes, there was.”

According to the dissent, the italicized phrase violated petitioner’s confrontation right because Lambatos lacked personal knowledge that the profile produced by Cellmark was based on the vaginal swabs taken from the victim, L. J. As the dissent acknowledges, there would have been “nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lambatos’s expertise.” Thus, if Lambatos’ testimony had been slightly modified as follows, the dissent would see no problem:

“Q Was there a computer match generated of the male DNA profile produced by Cellmark to a male DNA profile that had been identified as having originated from Sandy Williams?

“A Yes, there was.”

The defect in this argument is that under Illinois law (like federal law) it is clear that the putatively offending phrase in Lambatos’ testimony was not admissible for the purpose of proving the truth of the matter asserted—i.e., that the matching DNA profile was “found in semen from the vaginal swabs.” 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.

The dissent’s argument would have force if petitioner had elected to have a jury trial. In that event, there would have been a danger of the jury’s taking Lambatos’ testimony as proof that the Cellmark profile was derived from the sample obtained from the victim’s vaginal swabs. Absent an evaluation of the risk of juror confusion and careful jury instructions, the testimony could not have gone to the jury.

This case, however, involves a bench trial and we must assume that the trial judge understood that the portion of Lambatos’ testimony to which the dissent objects was not admissible to prove the truth of the matter asserted. . . .

For all these reasons, we conclude that petitioner’s Sixth Amendment confrontation right was not violated.

Even if the Cellmark report had been introduced for its truth, we would nevertheless conclude that there was no Confrontation Clause violation. The Confrontation Clause refers to testimony by “witnesses against” an accused. Both the noted evidence scholar James Henry Wigmore and Justice Harlan interpreted the Clause in a strictly literal sense as referring solely to persons who testify in court, but we have not adopted this narrow view. It has been said that “[t]he difficulty with the Wigmore-Harlan view in its purest form is its tension with much of the apparent history surrounding the evolution of the right of confrontation at common law.” “[T]he principal evil at which the Confrontation Clause was directed,” the Court concluded in Crawford, “was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” “[I]n England, pretrial examinations of suspects and witnesses by government officials ‘were sometimes read in court in lieu of live testimony.’” The Court has thus interpreted the Confrontation Clause as prohibiting modern-day practices that are tantamount to the abuses that gave rise to the recognition of the confrontation right. But any further expansion would strain the constitutional text.

The abuses that the Court has identified as prompting the adoption of the Confrontation Clause shared the following two characteristics: (a) they involved out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct and (b) they involved formalized statements such as affidavits, depositions, prior testimony, or confessions. In all but one of the post-Crawford cases in which a Confrontation Clause violation has been found, both of these characteristics were present. The one exception occurred in Hammon v. Indiana (2006), which was decided together with Davis v. Washington, but in Hammon and every other post-Crawford case in which the Court has found a violation of the confrontation right, the statement at issue had the primary purpose of accusing a targeted individual. . . .

The Cellmark report is very different. It plainly was not prepared for the primary purpose of accusing a targeted individual. In identifying the primary purpose of an out-of-court statement, we apply an objective test. We look for the primary purpose that a reasonable person would have ascribed to the statement, taking into account all of the surrounding circumstances.

Here, the primary purpose of the Cellmark report, viewed objectively, was not to accuse petitioner or to create evidence for use at trial. When the ISP lab sent the sample to Cellmark, its primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against petitioner, who was neither in custody nor under suspicion at that time. Similarly, no one at Cellmark could have possibly known that the profile that it produced would turn out to inculpate petitioner—or for that matter, anyone else whose DNA profile was in a law enforcement database. Under these circumstances, there was no “prospect of fabrication” and no incentive to produce anything other than a scientifically sound and reliable profile.

For the two independent reasons explained above, we conclude that there was no Confrontation Clause violation in this case. Accordingly, the judgment of the Supreme Court of Illinois is



This case raises a question that I believe neither the plurality nor the dissent answers adequately: How does the Confrontation Clause apply to the panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians? In this context, what, if any, are the outer limits of the “testimonial statements” rule set forth in Crawford v. Washington (2004)? Because I believe the question difficult, important, and not squarely addressed either today or in our earlier opinions, and because I believe additional briefing would help us find a proper, generally applicable answer, I would set this case for reargument. In the absence of doing so, I adhere to the dissenting views set forth in Melendez-Diaz v. Massachusetts (2009) and Bullcoming v. New Mexico (2011). I also join the plurality’s opinion. . .



[S]tatements introduced to explain the basis of an expert’s opinion are not introduced for a plausible nonhearsay purpose. There is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the expert’s opinion and disclosing that statement for its truth. “To use the inadmissible information in evaluating the expert’s testimony, the jury must make a preliminary judgment about whether this information is true.” “If the jury believes that the basis evidence is true, it will likely also believe that the expert’s reliance is justified; inversely, if the jury doubts the accuracy or validity of the basis evidence, it will be skeptical of the expert’s conclusions.”

[T]his commonsense conclusion is not undermined by any longstanding historical practice exempting expert basis testimony from the rigors of the Confrontation Clause. Prior to the adoption of the Federal Rules of Evidence in 1975, an expert could render an opinion based only on facts that the expert had personally perceived or facts that the expert learned at trial, either by listening to the testimony of other witnesses or through a hypothetical question based on facts in evidence. In those situations, there was little danger that the expert would rely on testimonial hearsay that was not subject to confrontation because the expert and the witnesses on whom he relied were present at trial. It was not until 1975 that the universe of facts upon which an expert could rely was expanded to include facts of the case that the expert learned out of court by means other than his own perception. It is the expert’s disclosure of those facts that raises Confrontation Clause concerns. . . .

It is no answer to say that other nonhearsay evidence established the basis of the expert’s opinion. Here, Lambatos disclosed Cellmark’s statements that it generated a male DNA profile from L. J.’s swabs, but other evidence showed that L. J.’s swabs contained semen and that the swabs were shipped to and received from Cellmark. That evidence did not render Cellmark’s statements superfluous. Of course, evidence that Cellmark received L. J.’s swabs and later produced a DNA profile is some indication that Cellmark in fact generated the profile from those swabs, rather than from some other source (or from no source at all). But the only direct evidence to that effect was Cellmark’s statement, which Lambatos relayed to the factfinder. In any event, the factfinder’s ability to rely on other evidence to evaluate an expert’s opinion does not alter the conclusion that basis testimony is admitted for its truth. The existence of other evidence corroborating the basis testimony may render any Confrontation Clause violation harmless, but it does not change the purpose of such testimony and thereby place it outside of the reach of the Confrontation Clause. I would thus conclude that Cellmark’s statements were introduced for their truth. . . .

Having concluded that the statements at issue here were introduced for their truth, I turn to whether they were “testimonial” for purposes of the Confrontation Clause. In Crawford, the Court explained that “[t]he text of the Confrontation Clause . . . applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’“ “‘Testimony,’” in turn, is “‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’” In light of its text, I continue to think that the Confrontation Clause regulates only the use of statements bearing “indicia of solemnity.” This test comports with history because solemnity marked the practices that the Confrontation Clause was designed to eliminate, namely, the ex parte examination of witnesses under the English bail and committal statutes passed during the reign of Queen Mary. Accordingly, I have concluded that the Confrontation Clause reaches “‘formalized testimonial materials,’” such as depositions, affidavits, and prior testimony, or statements resulting from “‘formalized dialogue,’” such as custodial interrogation.

Applying these principles, I conclude that Cellmark’s report is not a statement by a “witnes[s]” within the meaning of the Confrontation Clause. The Cellmark report lacks the solemnity of an affidavit or deposition, for it is neither a sworn nor a certified declaration of fact. Nowhere does the report attest that its statements accurately reflect the DNA testing processes used or the results obtained. The report is signed by two “reviewers,” but they neither purport to have performed the DNA testing nor certify the accuracy of those who did. And, although the report was produced at the request of law enforcement, it was not the product of any sort of formalized dialogue resembling custodial interrogation. . . .


Some years ago, the State of California prosecuted a man named John Kocak for rape. At a preliminary hearing, the State presented testimony from an analyst at the Cellmark Diagnostics Laboratory—the same facility used to generate DNA evidence in this case. The analyst had extracted DNA from a bloody sweatshirt found at the crime scene and then compared it to two control samples—one from Kocak and one from the victim. The analyst’s report identified a single match: As she explained on direct examination, the DNA found on the sweatshirt belonged to Kocak. But after undergoing cross-examination, the analyst realized she had made a mortifying error. She took the stand again, but this time to admit that the report listed the victim’s control sample as coming from Kocak, and Kocak’s as coming from the victim. So the DNA on the sweatshirt matched not Kocak, but the victim herself. In trying Kocak, the State would have to look elsewhere for its evidence.

Our Constitution contains a mechanism for catching such errors—the Sixth Amendment’s Confrontation Clause. That Clause, and the Court’s recent cases interpreting it, require that testimony against a criminal defendant be subject to cross-examination. And that command applies with full force to forensic evidence of the kind involved in both the Kocak case and this one. In two decisions issued in the last three years, this Court held that if a prosecutor wants to introduce the results of forensic testing into evidence, he must afford the defendant an opportunity to cross-examine an analyst responsible for the test. Forensic evidence is reliable only when properly produced, and the Confrontation Clause prescribes a particular method for determining whether that has happened. The Kocak incident illustrates how the Clause is designed to work: Once confronted, the analyst discovered and disclosed the error she had made. That error would probably not have come to light if the prosecutor had merely admitted the report into evidence or asked a third party to present its findings. Hence the genius of an 18th-century device as applied to 21st-century evidence: Cross-examination of the analyst is especially likely to reveal whether vials have been switched, samples contaminated, tests incompetently run, or results inaccurately recorded.

Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who produced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert witness who had no idea how they were generated. That approach—no less (perhaps more) than the confrontation-free methods of presenting forensic evidence we have formerly banned—deprived Williams of his Sixth Amendment right to “confron[t] . . . the witnesses against him.”

The Court today disagrees, though it cannot settle on a reason why. Justice Alito, joined by three other Justices, advances two theories—that the expert’s summary of the Cellmark report was not offered for its truth, and that the report is not the kind of statement triggering the Confrontation Clause’s protection. . . . I call Justice Alito’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Justices specifically reject every aspect of its reasoning and every paragraph of its explication. Justice Thomas, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers.

That creates five votes to approve the admission of the Cellmark report, but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable forensic reports. Justice Thomas’s concurrence, though positing an altogether different approach, suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because defendants like Williams have a constitutional right to confront the witnesses against them, I respectfully dissent from the Court’s fractured decision. . . .

This case is of a piece. The report at issue here shows a DNA profile produced by an analyst at Cellmark’s laboratory, allegedly from a vaginal swab taken from a young woman, L. J., after she was raped. That report is identical to the one inBullcoming (and Melendez-Diaz) in “all material respects.” Once again, the report was made to establish “‘some fact’ in a criminal proceeding”—here, the identity of L. J.’s attacker. And once again, it details the results of forensic testing on evidence gathered by the police. Viewed side-by-side with the Bullcoming report, the Cellmark analysis has a comparable title; similarly describes the relevant samples, test methodology, and results; and likewise includes the signatures of laboratory officials. So under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst.

But that is not what happened. Instead, the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence. Lambatos came to the stand after two other state analysts testified about forensic tests they had performed. One recounted how she had developed a DNA profile of Sandy Williams from a blood sample drawn after his arrest. And another told how he had confirmed the presence of (unidentified) semen on the vaginal swabs taken from L. J. All this was by the book: Williams had an opportunity to cross-examine both witnesses about the tests they had run. But of course, the State still needed to supply the missing link—it had to show that DNA found in the semen on L. J.’s vaginal swabs matched Williams’s DNA. To fill that gap, the prosecutor could have called the analyst from Cellmark to testify about the DNA profile she had produced from the swabs. But instead, the State called Lambatos as an expert witness and had her testify that the semen on those swabs contained Sandy Williams’s DNA:

“Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L. J.] to a male DNA profile that had been identified as having originated from Sandy Williams?

“A Yes, there was.

“Q Did you compare the semen . . . from the vaginal swabs of [L. J.] to the male DNA profile . . . from the blood of Sandy Williams?

“A Yes, I did. .     .     .     .     .

“Q [I]s the semen identified in the vaginal swabs of [L. J.] consistent with having originated from Sandy Williams?

“A Yes.”

And so it was Lambatos, rather than any Cellmark employee, who informed the trier of fact that the testing of L. J.’s vaginal swabs had produced a male DNA profile implicating Williams.

Have we not already decided this case? Lambatos’s testimony is functionally identical to the “surrogate testimony” that New Mexico proffered in Bullcoming, which did nothing to cure the problem identified in Melendez-Diaz (which, for its part, straightforwardly applied our decision in Crawford). Like the surrogate witness in Bullcoming, Lambatos “could not convey what [the actual analyst] knew or observed about the events . . . , i.e., the particular test and testing process he employed.”. . . At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of Lambatos: She had no knowledge at all of Cellmark’s operations. Indeed, for all the record discloses, she may never have set foot in Cellmark’s laboratory.

Under our case law, that is sufficient to resolve this case. “[W]hen the State elected to introduce” the substance of Cellmark’s report into evidence, the analyst who generated that report “became a witness” whom Williams “had the right to confront.” As we stated just last year, “Our precedent[s] cannot sensibly be read any other way.” . . .

At bottom, the plurality’s not-for-the-truth rationale is a simple abdication to state-law labels. Although the utility of the Cellmark statement that Lambatos repeated logically depended on its truth, the plurality thinks this case decided by an Illinois rule holding that the facts underlying an expert’s opinion are not admitted for that purpose. But we do not typically allow state law to define federal constitutional requirements. And needless to say (or perhaps not), the Confrontation Clause is a constitutional rule like any other. . . .

Still worse, that approach would allow prosecutors to do through subterfuge and indirection what we previously have held the Confrontation Clause prohibits. Imagine for a moment a poorly trained, incompetent, or dishonest laboratory analyst. (The analyst in Bullcoming, placed on unpaid leave for unknown reasons, might qualify.) Under our precedents, the prosecutor cannot avoid exposing that analyst to cross-examination simply by introducing his report. See Melendez-Diaz. Nor can the prosecutor escape that fate by offering the results through the testimony of another analyst from the laboratory. But under the plurality’s approach, the prosecutor could choose the analyst-witness of his dreams (as the judge here said, “the best DNA witness I have ever heard”), offer her as an expert (she knows nothing about the test, but boasts impressive degrees), and have her provide testimony identical to the best the actual tester might have given (“the DNA extracted from the vaginal swabs matched Sandy Williams’s”)—all so long as a state evidence rule says that the purpose of the testimony is to enable the factfinder to assess the expert opinion’s basis. . . . The plurality thus would countenance the Constitution’s circumvention. If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it.

The plurality also argues, as a “second, independent basis” for its decision, that the Cellmark report falls outside the Confrontation Clause’s ambit because it is nontestimonial. The plurality tries out a number of supporting theories, but all in vain: Each one either conflicts with this Court’s precedents or misconstrues this case’s facts. . . . When all is said and done, the Cellmark report is a testimonial statement.

According to the plurality, we should declare the Cellmark report nontestimonial because “the use at trial of a DNA report prepared by a modern, accredited laboratory ‘bears little if any resemblance to the historical practices that the Confrontation Clause aimed to eliminate.’” But we just last year treated as testimonial a forensic report prepared by a “modern, accredited laboratory”; indeed, we declared that the report at issue “fell within the core class of testimonial statements” implicating the Confrontation Clause. Bullcoming. . . .

Before today’s decision, a prosecutor wishing to admit the results of forensic testing had to produce the technician responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer. The five Justices who control the outcome of today’s case agree on very little. Among them, though, they can boast of two accomplishments. First, they have approved the introduction of testimony at Williams’s trial that the Confrontation Clause, rightly understood, clearly prohibits. Second, they have left significant confusion in their wake. . . .

I respectfully dissent.