When Confrontation Meets Truthiness
Then came Williams v. Illinois, decided yesterday by a fractured 4-1-4 decision with Justice Clarence Thomas assuring that no affirmative rationale would support the decision. No matter, While the opinion failed miserably to perform anything remotely resembling a positive function of the least helpful branch of government, it did enough: It killed Bullcoming.
When Justice Scalia is in the minority of a confrontation clause decision, there is an absolute assurance that no good can come of it. And indeed, Justice Alito's kinda majority (with Justice Thomas concurring in result but not rationale) returns us to the age where the court need not bother trying to wrap its ruling in rational explanation, but resorts to the old "because I said so" reasoning.
The case involved a testifying DNA expert who concluded that the DNA involves belonged to the defendant based upon an analysis by Cellmark Diagnostic Laboratory in Maryland. No one from Cellmark testified, so the results of its analysis simply materialized at trial and were relied upon by the expert, Sandra Lambatos, who was present.
The "not offered for the truth of the matter" is the old escape hatch that was invoked whenever a court chose to allow in evidence that couldn't be justified under law. Aside from the fact that no juror ever in the history of our nation has had the capacity to distinguish between testimony offered for the truth as opposed to testimony offered for the, well, untruth, the result of the Cellmark DNA analysis were absolutely offered for the truth. The results were used to compare with the defendant's DNA to conclude that he was guilty. It doesn't get any more "truth" than this.
Ms. Lambatos’s discussion of the Cellmark report was not offered to prove that what was in it was true, Justice Alito wrote. In any event, he added, the report itself was not the sort of evidence to which the confrontation clause applies because it was made “for the purpose of finding a rapist who was on the loose.”
The Williams opinion, though framed in terms of evidence not offered for its truth, instead provides a fabulous example of the rule of truthiness. Justice Alito has strung together words that create the appearance of a reason when they reflect nothing more than truthiness, it is because we say it is.
According to Alito, the Cellmark results were merely a "premise" of the prosecution's question, and a simple assumption upon which the expert's opinion relied. In other words, when the Lambatos was asked whether the DNA taken from the defendant matched the DNA from the vaginal swab analyzed by Cellmark, and she responded that absolutely, the DNA she took from the defendant matched perfectly with the DNA Cellmark obtained from the victim's vagina, it was all just a hypothetical on the Cellmark side. Who could possibly be confused into believing when she proclaimed it a perfect match, she meant that to be taken as true?
Not only does this reflect a monumental step backward from the position taken since Crawford, that confrontation meant confrontation, but it also reflects a return to the days when absurd rhetoric was a complete substitute for anything remotely resembling reason. This is one incredibly stupid decision.
And while it may not suffice to explain what the law requires of the government in order to prove a fact at trial, it is more than adequate to screw up the otherwise clear trend that developed between Crawford and Bullcoming, and throw the door wide open to the return of the old days when any string of words a judge could put together serves as a perfectly adequate excuse to admit evidence that condemns a defendant, denies him confrontation, conclusively proves the prosecution's case, yet complies only with the truthiness version of the Constitution.
Nice going, guys.