U.S. Capitol building

Young v. U.S.: The Confrontation Clause Is Still Alive In D.C.

Jamison KoehlerCriminal Procedure, Legal Concepts/Principles, Opinions/Cases

The U.S. Supreme Court has made such a mess of the Confrontation Clause line of cases that the D.C. Court of Appeals declared today that it really doesn’t know what to do.

So it decided to do the right thing instead.

In Robert Young v. United States, 63 A.3d 1033 (D.C. 2013), the D.C. Court of Appeals decided to essentially ignore the U.S. Supreme Court’s “fractured decision” in Williams v. Illinois because “not one of the three proffered tests for determining whether an extrajudicial statement is testimonial [] attracted the support of a majority of the Justices.  “When a majority of the Court expressly disagrees with the rationale of the plurality,” the court explained, “a case is of questionable precedential value.”

* * * * *

Justice Scalia started the whole thing back in 2004 with a beautifully written and reasoned opinion in Crawford v. Washington, overturning decades of jurisprudence under Ohio v. Roberts.  You can’t do any better than such phrases as the “crucible of cross-examination.”

Davis and Hammon took a helpful first step in defining what does and what does not constitute testimonial evidence for the purposes of the Confrontation Clause, followed by two very good decisions in Melendez-Diaz and Bullcoming dealing with Confrontation Clause issues in drug and DUI cases, respectively.

Things began to fall apart with Justice Sotomayor’s overwrought decision in Michigan v. Bryant, leading to one of my all-time favorite Scalia dissents:

Today’s tale – a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose – is so transparently false that professing to believe it demeans this institution. 

And then, of course, there was the train-wreck of Williams v. Illinois.

* * * * *

Left without meaningful guidance from the Supreme Court, the D.C. Court of Appeals came to the right conclusion in Young v. United States.

Robert Young was convicted of kidnapping and rape after an FBI examiner, Rhonda Craig, testified at trial that Young’s DNA profile matched the DNA profile of the rapist.  The problem with the government’s case was that Craig had not performed the work herself:  she was basically reporting on and drawing conclusions from the work of other people at her laboratory:

The government argues that Craig did not quote any particular hearsay statements, mention any out-of-court declarants, or introduce a report prepared by other technicians.  Rather, she couched her account of the testing and analysis in generalities and purported to describe her “understanding” of what was done based, largely, on her familiarity with the FBI laboratory’s standard practices.  Therefore, the government argues, it introduced no hearsay through Craig, testimonial or otherwise.

We disagree.  An out-of-court statement offered in evidence to prove the truth of the matter asserted is hearsay whther the statement is quoted verbatim or conveyed only in substance; whether it is relayed explicitly or merely implied; whether the declarant is identified or not.  “[T]estimony need not be explicit to qualify as hearsay . . . [L]awyers may not circumvent the Confrontation Clause by introducing the same substantive testimony in a different form.”  Thus, that a written forensic analysis report was not formally entered into evidence, or that Craig did not read verbatim from any such report, is not determinative.  “[T]he appropriate question is whether the substance of the testimonial materials is shared with the fact-finder to suggest its trurth, without the report’s author being available for cross-examination” 

The next question is whether the hearsay Craig relayed was testimonial . . .

We do not hold that every analyst and technician who performed any aspect of the multi-stage process used to isolate, amplify, identify, and analyze DNA evidence must testify at a defendant’s trial absent a waiver.  This is an issue of great practical importance that the Supreme Court left open in Williams.  It is not an easy issue under current Sixth Amendment doctrine.  Perhaps, as has been proposed in one treatise, a practical compromise ultimately will be reached pursuant to which the Confrontation Clause will be deemed satisfied so long as the testifying expert was personally and significant;y involved in all the critical stages of the DNA testing process, even if others “played a supporting role.”  Perhaps, as also has been suggested, the prosecution may be allowed to call a substitute expert to testify when the original expert who performed the testing is no longer available (through no fault of the government), retesting is not an option, and the original test was “documented with sufficient detail for another expert to understand, interpret, and evaluate the results.” 

In this case, however, we need not address such possible solutions to the practical difficulties of implementing Crawford in connection with forensic evidence.  The government has not argued that practical considerations made it necessary to present its DNA test results through Craig as opposed to witnesses with personal knowledge of the critical testing, and Craig clearly lacked personal and significant involvement in critical parts of the process.  (Internal citations omitted.)

Young’s conviction was reversed.