When Confrontation Meets Truthiness

It started with Crawford, and then  picked up steam with Melendez-Diaz and Bullcoming.  It seems impossible, but there it was: The Supreme Court of the United States held that a clause in the Bill of Rights entitling a defendant to confront the evidence against him would be honored. 

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.


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 “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.

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. 

9 comments on “When Confrontation Meets Truthiness

  1. Jonathan Edelstein

    To be sure, the Alito rationale isn’t controlling, because (a) a majority of five Justices rejected it, and (b) if a case is decided by a divided court, the narrowest holding – in this case Thomas’ concurrence – controls. So there is not a majority for the “non-hearsay use” rationale and it is not controlling law.

    Of course, the above depends on judges actually listening to arguments and following the law rather than simply applying the plurality opinion and punting to the appellate courts where any error will be found either unpreserved or harmless. There may not be many such judges. But I bet there’ll be at least a few.

  2. SHG

    You are absolutely right, and yet what are the odds this decision will be used by trial judges as the anti-Crawford? I put them at 97%.

  3. Alex Bunin

    “Who could possibly be confused into believing when she proclaimed it a perfect match, she meant that to be taken as true?”
    That opinion was offered for its truth and that witness was subject to cross. Had that expert been absent then the result would have overruled Bullcoming. However, I do not believe Williams did that. You are wise to point out that trial judges may be hard-pressed to see the distinction, but most never understood Crawford to begin with.

  4. Jonathan Edelstein

    I’d say you’re being optimistic – I’d go with 98 or 99 percent, at least until there’s a New York appellate decision saying otherwise.

  5. SHG

    Ah, but without the Cellmark results be accepted as “truth,” her reliance on its couldn’t be proffered for the truth of its content either. Yet it was.

    In fact, one might argue that no expert testimony should have been allowed at all given the absence of foundational facts upon which an opinion could be offered.  The problem is, there can be no comparison of DNA if there is only one sample offered for “truth.”  There has to be at least two to do a comparison.

  6. Alex Bunin

    A friend of mine, Barry Fisher, whose insight I respect said:
    “Williams actually looks to me like something close to a win: I count 5 votes — in Thomas’s concurrence and Kagan’s dissent — for the view that the Confrontation Clause doesn’t allow a government expert to present non-testimonial hearsay that he/she relied on to form an opinion, even on the premise that it is not being offered for the truth, if the hearsay’s relevance actually depends on it being true. Potentially very significant.”

  7. SHG

    I heard that point made. First, if this is how it feels to win, I hate to think how losing feels. Second, I wouldn’t bet the farm on persuading a trial judge that he should ignore Alito’s majority and instead go with the hole caused by Thomas’ concurrence plus Kagan’s dissent.  I’m just not feeling good about that argument.

  8. LTMC

    I lost all my faith after Michigan v. Bryant. To quote Scalia:

    “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.”

    It pains me to quote the man whose greatest hits include his earnest belief that there’s no such thing as a Proportionality principle. The enemy of my enemy, I suppose.

  9. SHG

    I can’t believe I forgot all about Michigan v. Bryant.  It was indeed a stunner in truthiness, the only way Scalia could maintain his principled position while assuring the bad guy stayed convicted.

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