This case presents the question of when the confrontation clause requires testimony from lab analysts who conduct forensic tests on evidence. While the United States Supreme Court has grappled with this issue on multiple occasions, a majority of the Court has not adopted a single theory or test. Accordingly, our decision follows the results of recent Supreme Court decisions and proposes a test for expert witnesses that does not conflict with Supreme Court precedent.
We examine the plain language of the confrontation right: an accused person has a right to confront "the witnesses against him." Reading these words in light of the founders' intent, the practice of other jurisdictions, and the trajectory of Supreme Court confrontation clause jurisprudence leads us to adopt a rule that an expert comes within the scope of the confrontation clause if two conditions are satisfied: first, the person must be a "witness" by virtue of making a statement of fact to the tribunal and, second, the person must be a witness "against" the defendant by making a statement that tends to inculpate the accused.
Applying this rule shows that there was no violation of Sione Lui's rights under the confrontation clause when the trial court admitted the results of deoxyribonucleic acid (DNA) testing on samples taken from Lui and from the crime scene, or when it introduced temperature readings taken from Elaina Boussiacos's body and the ambient environment. Lui's right to confront a witness was violated by the admission of Boussiacos's postmortem toxicology results and several statements from the autopsy report, but the errors were harmless. Accordingly, the Court of Appeals is affirmed.
FACTS AND PROCEDURAL HISTORY
Lui and Boussiacos had a turbulent relationship, marked by mistrust and infidelity. Although they were engaged and living together by the summer of 2000, Boussiacos was uncertain about their marriage plans, and she alternated between wearing and not wearing her engagement ring. Boussiacos eventually discovered proof of an affair Lui was having with a married woman, and together the two women trapped him in a lie. Lui was aware that his relationship with Boussiacos was in trouble. He feared that Boussiacos would not return from a trip in mid-2000 and called a friend distraught and crying at the prospect of losing her.
Boussiacos told her mother that she no longer planned to marry Lui, and in early 2001, Boussiacos made plans to fly to her mother's home in California. On Friday, February 2, 2001, the night before her flight, Boussiacos dropped off her son from a previous marriage with the boy's father. Lui told police that Boussiacos returned to the couple's home at roughly 10:00 p.m., and the couple watched television. According to Lui's account, Boussiacos packed for the trip, changed into her nightgown, and went to bed.
Boussiacos never arrived in California. Her mother contacted Lui to report her missing the following Monday. On Friday, police found her car in the parking lot of a health club the couple frequented, located near their home. The police discovered Boussiacos's body in the trunk. The owner of the health club testified that she first noticed the car parked in the lot Saturday morning, February 3, and that it did not move all week. Police arranged for a bloodhound track shortly after discovering Boussiacos's body. After smelling a sample of Lui's clothes, the dog followed a scent trail from the lot where the body was found directly to Lui's front porch.
Boussiacos's friends and family agreed that she paid close attention to her personal appearance, taking great care with her dress and makeup when she went out. Her ex-husband testified that she routinely spent two hours on makeup, hair, and clothes before leaving the house. But when found, she had little makeup on, and she was dressed in black sweatpants, torn underwear, and a white T-shirt. Investigators noted that she was wearing tennis shoes, but the laces were tied oddly, on the far sides of each shoe, suggesting that her killer had dressed her after death. In addition, Boussiacos's luggage was packed in an unusual manner, containing several empty containers of hair product and makeup, two hair dryers, and a bottle of nail polish remover without any nail polish.
In 2007, detectives reviewing cold cases contacted and interviewed Lui. The State subsequently charged Lui with second degree murder in the death of Boussiacos. At trial, in addition to the evidence described above, the State presented expert testimony from chief medical examiner Dr. Richard Harruff and DNA expert Gina Pineda. Harruff's testimony related to Boussiacos's autopsy. While Harruff personally reviews the reports for each of the 1, 300 autopsies that his office processes each year, the actual autopsy had been performed by associate medical examiner Dr. Kathy Raven. Harruff was not present for the autopsy, and while he believed that he saw the body after the procedure, he could not be sure. However, Harruff did not testify to Raven's conclusions; and, the report was not introduced into evidence. Instead, he referred to photographs of the victim's injuries taken during the autopsy to testify that in his opinion, the cause of death was asphyxia by manual strangulation or strangulation with a ligature. Based solely on his experience with strangulation, he offered his opinion that it takes roughly four minutes to die in this manner. Harruff also testified to the position of Boussiacos's body and the odd manner in which she was dressed. While Harruff relied primarily on photographs for this testimony, he made several statements that were taken from the autopsy report.
Harruff testified that the body's temperature at the scene was measured at 38.4 degrees Fahrenheit, and that the ambient temperature was 30.5 degrees Fahrenheit. He did not take these measurements himself. Rather, Raven took the temperature measurements and recorded them in personal notes that were not part of the autopsy report but were later obtained in discovery. Based upon these two temperature data points, Harruff testified to his opinion that although it was "extremely difficult" to fix an exact time of death, death was possible at any time between the 2nd and 7th of February. 10 Report of Proceedings (RP) at 1354-56, 1398-99.
Harruff also testified to the conclusions of a toxicology report prepared by analyst Martin Hughes of the Washington State Toxicology Laboratory. Harruff did not perform this test personally or supervise it, and he did not offer his professional opinion about the testing methodology. Instead, he recited the report's conclusion that no drugs, alcohol, or nicotine were found in Boussiacos's system.
The Washington State Patrol Crime Laboratory sent DNA samples obtained from the crime scene to two outside DNA laboratories: Orchid Cellmark and Reliagene Technologies, a company that Orchid had acquired. The samples included cuttings from Boussiacos's shoelaces as well as a vaginal swab and a vaginal wash of Boussiacos's body. Pineda, Orchid's associate director and technical leader, testified about her company's testing of these samples against DNA taken from Lui, Lui's son from a previous marriage, and Boussiacos's ex-husband.
Pineda did not personally participate in or observe the tests, noting that since assuming her director role, she had "stepped away from the lab, " although she did use the electronic data produced during the testing process to create a DNA profile that reflected "[her] own interpretation and [her] own conclusions . . .'" 12 RP at 1484, 1507. She offered a document summarizing the test results, which the trial court admitted solely for illustrative purposes, ruling that Pineda could refer to it during her presentation but that it would not go back to the jury room. State Ex. 136. Pineda testified that based on the results of these tests, she could not eliminate Lui or Lui's son as a major donor of the male DNA found on the shoelaces. Nor could Boussiacos's ex-husband be eliminated as a donor. The lab's testing was unable to detect a male profile from the vaginal swab extract. However, Lui or Lui's son could not be eliminated as a donor of the DNA found in the vaginal wash.
Lui objected to Harruff's and Pineda's testimony on hearsay and confrontation grounds. The trial court rejected his hearsay argument because ER 703 allows experts to rely on hearsay in forming their opinions. It concluded that there was no confrontation violation because Harruff and Pineda were available for cross-examination. A jury found Lui guilty as charged, and the trial court imposed a standard-range sentence of 200 months of confinement.
Lui appealed and the Court of Appeals affirmed in a published opinion. State v. Lui, 153 Wn.App. 304, 325, 221 P.3d 948 (2009). The Court of Appeals concluded that there was no confrontation violation because the expert witnesses testified to their conclusions and Lui had the opportunity to confront them at trial. Id. The court also held that while both experts testified about the content of reports they did not prepare, the underlying reports were "offered to explain the basis for their opinions" pursuant to ER 703 and therefore were not subject to the confrontation clause. Id. at 322-25.
We accepted review and heard oral argument, but before issuing a decision, we granted the State's motion to file supplemental briefs addressing Bullcoming v. New Mexico, __ U.S.__ __, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). We then stayed our decision pending the United States Supreme Court's decision in Williams v. Illinois, __ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012) (plurality opinion). Following the Supreme Court's decision in Williams, we lifted the stay and heard reargument in Lui's case.
As an initial matter, we must decide whether to analyze Lui's claims solely under the Sixth Amendment to the United States Constitution or separately under article I, section 22 of the Washington Constitution.
I. Article I, Section 22
Article I, section 22 of the Washington Constitution provides that "[i]n criminal prosecutions the accused shall have the right... to meet the witnesses against him face to face . . . ." While Lui relies primarily on the Sixth Amendment, he raises article I, section 22 as an alternate ground for relief in the event the court concludes his federal confrontation clause rights were not violated.
We consider six nonexclusive criteria when determining whether a provision of our state constitution should be interpreted independently from its federal analogue: (1) the textual language, (2) differences in the texts, (3) constitutional history, (4) preexisting state law, (5) structural differences, and (6) matters of particular state or local concern. State v. Gunwall, 106 Wn.2d 54, 58, 720 P.2d 808 (1986).
This court has concluded that article I, section 22 merits an independent analysis as to both the manner and the scope of the confrontation right. State v. Pugh, 167 Wn.2d 825, 835, 225 P.3d 892 (2009). Therefore, a full Gunwall analysis "is no longer necessary." Id. Rather, we look to.....whether the unique characteristics of the state constitutional provision and its prior interpretations actually compel a particular result."'" Id. (quoting State v. Chenoweth, 160 Wn.2d 454, 463, 158 P.3d 595 (2007) (quoting City of Seattle v. McCready, 123 Wn.2d 260, 267, 868 P.2d 134 (1994))). This entails "an examination of the constitutional text, the historical treatment of the interest at stake as reflected in relevant case law and statutes, and the current implications of recognizing or not recognizing an interest." Chenoweth, 160 Wn.2d at 463. In this case, none of these factors calls for an independent reading of article I, section 22.
The text of article I, section 22 does not compel a result different from that under the Sixth Amendment. Both the Sixth Amendment and article I, section 22 protect a variety of criminal procedural rights; the relevant right is phrased in the federal constitution as the right "to be confronted with the witnesses against him, " while the state constitution uses the language "to meet the witnesses against him face to face . ..." U.S. Const, amend. VI; Const, art. I, § 22. On the face of these provisions, article I, section 22 is unique in that it uses the language "face to face" where the Sixth Amendment does not. However, in State v. Foster, 135 Wn.2d 441, 462-63, 957 P.2d 712 (1998), a plurality of this court declined to give literal effect to the "face to face" language. We held that "the meaning of the words used in the parallel clauses is substantially the same." Id. at 459.
But even if we read the "face to face" language literally, it would not affect the resolution of this case. There is no question that Lui confronted the State's witnesses "face to face"; the question is whether the State presented the correct witnesses. If the analysts who worked on the crime scene samples were "witnesses against" Lui, then neither the state nor the federal confrontation clause was satisfied. If they were not "witnesses against" Lui, then neither the state nor the federal confrontation clause would require the State to produce them at trial. Nothing about the unique language of article I, section 22 compels a particular result here.
Our prior interpretations of article I, section 22 similarly do not compel a particular result. We have consistently rejected arguments that the state confrontation clause provides greater protection than the federal confrontation clause. See Pugh, 167 Wn.2d at 840-45 (excited utterance hearsay exception does not violate state confrontation rights); State v. Shafer, 156 Wn.2d 381, 391-92, 128 P.3d 87 (2006) (child hearsay statute does not violate state confrontation rights); Foster, 135 Wn.2d at 470 (testimony by closed-circuit television does not violate state confrontation rights). These decisions are consistent with early decisions by Washington courts admitting documentary evidence in lieu of live testimony, as well as prestatehood statutes allowing depositions to be introduced at trial. See Foster, 135 Wn.2d at 462. Lui has not shown any particular Washington tradition protecting the right to confrontation over and above the federal standard.
Finally, Lui does not brief the current implications of recognizing or not recognizing an expanded confrontation interest under the Washington Constitution, other than that judges and litigants will benefit from knowing which witnesses will appear at trial. But the interest in knowing which witnesses will appear at trial, as well as the constitutional values underlying article I, section 22, are adequately addressed by the Sixth Amendment test we articulate below. Perhaps in another case there may be occasion to recognize a broader state confrontation right, but these facts do not give us reason to do so.
Neither the constitutional text, the historical treatment of the confrontation right, nor the current implications of adopting a broader confrontation right support an independent reading of article I, section 22 in this case. Accordingly, we analyze Lui's claim solely under the federal confrontation clause.
II. Confrontation Clause
Supreme Court case law on the confrontation clause is somewhat fragmented and does not provide a controlling rule for cases like Lui's that involve expert witnesses. As we explain below, in the case of nonexpert witnesses, a majority of the Supreme Court has settled on the primary purpose test as the controlling confrontation clause rule. But in the case of expert witnesses, the members of the Court are divided into two groups of four justices each, with Justice Thomas voting independently based on his unique interpretation of the confrontation clause. In the absence of an authoritative Supreme Court majority rule, we must rely on the plain language of the confrontation clause: an accused person has a right to confront "the witnesses against him." As we explain below, the founders' intent and the practice of other jurisdictions can help us to interpret these words and ultimately reach a working rule for confrontation of expert witnesses: a person is a "witness" for confrontation clause purposes only if he or she makes some statement of fact to the court (as opposed to merely processing a piece of evidence) and that statement of fact bears some inculpatory character (meaning that the evidence, without the need for expert interpretation, bears on some factual issue in the case). Under this test, the court did not violate the confrontation clause when it admitted the DNA evidence through Gina Pineda and the temperature evidence through Dr. Richard Harruff. However, the toxicology evidence runs afoul of this test.
A. Supreme Court Confrontation Clause Jurisprudence—A Core Rule, and Uncertainty on the Periphery
Before 2004, confrontation clause jurisprudence was governed by the indicia of reliability test. See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated by Crawford v. Washington, 541 U.S. 36, 69, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court jettisoned the indicia of reliability test. What replaced the indicia of reliability test is less clear: in the years since Crawford, the Court has issued increasingly fractured sets of opinions in five major confrontation clause cases.
The six cases naturally divide into two sets of three decisions. In Crawford, Davis, and Bryant, the Court dealt with conventional, nonexpert witnesses who had witnessed or had been the victims of the subject crimes. Crawford, 541 U.S. 36; Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed. 2D 224 (2006); Michigan v. Bryant, 562 U.S.__, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). The Court was unanimous in Crawford, and a solid majority decided Daw's and Bryant. But Justice Thomas articulated the principle that has consistently guided his confrontation clause decisions: "I agree with the Court that the admission of Covington's out-of-court statements did not violate the confrontation clause, but I reach this conclusion because Covington's questioning by police lacked sufficient formality and solemnity for his statements to be considered 'testimonial.'" Bryant, 131 S.Ct. at 1167 (Thomas, J., concurring) (emphasis added).
In the second triad of cases, the Court considered the admissibility of laboratory analysis reports where the analyst who had performed the testing did not testify. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009); Bullcoming, 131 S.Ct. 2705; Williams, 132 S.Ct. 2221. In these laboratory analysis cases, Justices Kennedy, Roberts, Breyer, and Alito consistently voted together; Justices Scalia, Ginsburg, Stevens, and Souter (and eventually Justices Sotomayor and Kagan) consistently voted together; and Justice Thomas independently looked for sufficient formality and solemnity. We turn now to both groups of cases.
1. The Core Rule: Conventional Witnesses
In Crawford, the defendant's wife told the police that the victim had been unarmed, and the prosecution introduced her statements without calling her to the stand. 541 U.S. at 40. The Court noted that the seminal example of an out-of-court testimonial statement is the trial of Sir Walter Raleigh, in which the prosecution read into evidence Lord Cobham's ex parte statements inculpating Raleigh. Id. at 44. It is this sort of "civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused, " that the confrontation clause is primarily concerned to exclude. Id. at 50. Therefore, Crawford was uncontroversially decided. The Court unanimously held that "Sylvia Crawford's statement is testimonial under any definition" and thus must be subject to cross-examination notwithstanding reliability. Id. at 61. The Court further held that Sylvia's statements were not reliable in the first instance because she was "herself a potential suspect" with an incentive to lie, because the police asked leading questions, and because she did not see the entire altercation. Id. at 66.
The Court revisited and refined its definition of "testimonial" statements in Davis, 547 U.S. 813. In the first of two consolidated cases, Adrian Davis's former girl friend called 911 to report that Davis was presently assaulting her. Id. at 817. The 911 recording was admitted into evidence, and Davis was convicted of assault. Id. In the second case, officers arrived at Hershel Hammon's house after an altercation between him and his wife; one of the officers stayed with Hammon while the other officer interrogated Hammon's wife in a separate room. Id. at 819-20. Hammon's wife authored a "battery affidavit" that the State introduced at trial. Id. at 820.
In Davis, the Court held that whether a statement was testimonial depended on the declarant's purpose in making the statement. The Court held that the statements of Davis's former girl friend had been made "to enable police assistance to meet an ongoing emergency." Id. at 822. The Court held that a statement is testimonial when "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id. That is, a statement is testimonial if it is "solely directed at establishing the facts of a past crime, in order to identify (or provide evidence to convict) the perpetrator." Id. at 826. Under this analysis, the ex parte statements were properly admitted in Davis's case and improperly admitted in Hammon's case. Id. at 834.
Justice Thomas disagreed, dissenting on the ground that testimony must necessarily bear "some degree of solemnity." Id. at 836 (Thomas, J., concurring in part and dissenting in part). Therefore, affidavits, depositions, prior testimony, and other statements obtained through a "formalized process" fell within the scope of the confrontation clause, but an informal talk with the police would not. Id. at 836-37. For that reason, Thomas argued, the statements in both Davis's and Hammon's cases were admissible. Id. at 834.
The Crawford consensus began to unravel in Bryant, 131 S.Ct. 1143. There, the trial court admitted into evidence the statement of a gunshot victim who identified the shooter to responding police officers. Id. at 1150. Six justices of the Court held that, as in Davis, the statements did not constitute an "out-of-court substitute for trial testimony, " id. at 1155, because the declarant's statements were not meant for use at trial, but rather to help resolve the ongoing emergency of '"an unknown shooter who remains at large . . . .'" Id. at 1158 (quoting amicus brief). The nature of the emergency diminished the "prospect of fabrication, " thus excusing the statements from the confrontation clause. Id. at 1157.
Justice Scalia dissented, arguing that the primary purpose of the statements was to provide evidence against the defendant. From the declarant's perspective, the emergency had already ended. Id. at 1171 (Scalia, J., dissenting). Therefore, "his statements had little value except to ensure the arrest and eventual prosecution of Richard Bryant." Id. at 1170. Justice Ginsburg also dissented, agreeing in full with Justice Scalia's analysis. Id. at 1176-77.
Justice Thomas again broke from the primary-purpose test altogether. In concurrence, he argued that the test should be whether the statements were formal and solemn. Id. at 1167.
2. Scientific Evidence: Three Perspectives
In the next three decisions, the justices divided into three camps as the Court turned from examining statements by conventional witnesses to examining laboratory analysis reports. In Melendez-Diaz, 557 U.S. 305, Justices Scalia, Stevens, Souter, and Ginsburg, joined by Justice Thomas, held that three certificates identifying bags of powder as "cocaine" were testimonial, as the certificates were functionally equivalent to affidavits and were created for the primary purpose of providing evidence for trial. Id. at 310-11. In fact, "the sole purpose of the affidavits was to provide 'prima facie evidence of the composition, quality, and the net weight' of the analyzed substance, " necessary elements of the crime under Massachusetts law. Id. at 311 (quoting Mass. Gen. Laws ch. 111, § 13). These sworn statements of fact were admitted into evidence and were "functionally identical to live, in-court testimony, doing 'precisely what a witness does on direct examination.'" Id. at 307, 310-11 (quoting Daws, 547 U.S. at 830). Because the witnesses were not subject to cross-examination, the admission of the certificates violated the confrontation clause. Id. at 308.
Justice Thomas wrote separately to reaffirm that his support for the majority was conditioned on the formal nature of the affidavits at issue. Id. At 329-30 (Thomas, J., concurring). And indeed, the majority's definition of testimony subject to the confrontation clause was qualified by a requirement of formality such as former testimony, statements under oath, or other indicia of formality. Id. at 310.
Justice Kennedy, joined by Justices Roberts, Breyer, and Alito, dissented on the ground that laboratory analysts were not "'witnesses against'" a defendant, as they did not bear "personal knowledge of some aspect of the defendant's guilt." Id. at 343-44 (Kennedy, J., dissenting). Justice Kennedy offered three distinctions between laboratory analysts and conventional witnesses: "a conventional witness recalls events observed in the past, while an analyst's report contains near-contemporaneous observations of the test"; "an analyst observes neither the crime nor any human action related to it"; and "laboratory tests are conducted according to scientific protocols; they are not dependent upon or controlled by interrogation of any sort." Id. at 345-46.
In Bullcoming, 131 S.Ct. 2705, the state introduced a certificate recording the defendant's blood alcohol level at 0.21 grams per hundred milliliters through a coworker of the laboratory analyst who had not observed nor reviewed the actual testing. Id. at 2710-12. Again, the Court declared the evidence inadmissible by similar divisions as in Melendez-Diaz: Justices Scalia and Ginsburg, now joined by Justices Sotomayor and Kagan who had replaced Justices Stevens and Souter, and
Justice Thomas joining in part. The Court drew parallels to Melendez-Diaz, noting that the certificate had an "'evidentiary purpose, '" that it was created "in aid of a police investigation, " and that it was formalized. Id. at 2717 (quoting Melendez-Diaz, 129 S.Ct. at 2532). Therefore, the certificate was testimonial, which left the Court to determine whether the State had satisfied its confrontation clause burden. It had not; the witness had not participated in the test and could not speak to the procedures used or observations made. Id. at 2713. The witness had no function except as a "surrogate, " merely relaying the conclusions of another. Id. at 2715.
Justice Sotomayor wrote separately to emphasize the limited reach of Bullcoming, articulating the factual limits of the case: the sole purpose of the certificate was to be introduced into evidence; the witness who testified at trial was not a "supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue"; the testifying witness did not give "his independent opinion about underlying testimonial reports that were not themselves admitted into evidence"; and the document introduced by the State was not limited to "only machine-generated results." Id. at 2722 (Sotomayor, J., concurring). Justices Kennedy, Roberts, Breyer, and Alito again dissented, arguing that the report was "impartial" and "prepared by experienced technicians in laboratories that follow professional norms and scientific protocols." Id. at 2726 (Kennedy, J., dissenting).
Thus, in Melendez-Diaz and Bullcoming, the four-judge block of Justices Scalia, Ginsburg, Sotomayor, and Kagan was joined by Justice Thomas to find a confrontation clause violation. But in the next case, Williams, 132 S.Ct. 2221, Justice Thomas joined the four-judge plurality of Chief Justice Roberts and Justices Kennedy, Breyer, and Alito to find no confrontation clause violation. The issue was whether "Crawford bar[red] an expert from expressing an opinion based on facts about a case that have been made known to the expert but about which the expert is not competent to testify." Id. at 2227. In Williams, an expert testified that a DNA profile taken from a rape victim matched a DNA profile recovered from the defendant. Id. at 2230. The expert did not prepare the DNA profile; rather, she relied on a DNA profile prepared by an outside laboratory. Id. at 2229. No one from that laboratory was subject to cross-examination. See id. at 2227, 2230. Justice Alito wrote for the four-judge plurality, including Chief Justice Roberts and Justices Kennedy, and Breyer, offering "two independent reasons" for finding no violation of the confrontation clause. Id. at 2244. First, the expert's reliance on the previous steps in the DNA analysis was not offered to prove the truth of the matter asserted. Id. at 2228. As a "second, independent basis" for the decision, Justice Alito pointed out that the DNA profile was produced before the defendant was identified as a suspect and "the profile that Cellmark provided was not inherently inculpatory." Id.
The four justices who had voted together in Bullcoming—Justices Scalia, Ginsburg, Sotomayor, and Kagan—again voted together in Williams. This time Justice Kagan wrote for the four justices. Justice Kagan saw nothing wrong with the expert witness's testimony that two DNA profiles matched each other, for this was "a straightforward application" of her expertise. Id. at 2270 (Kagan, J., dissenting). Rather, the Court split on the provenance of the victim's DNA profile, that is, whether the expert affirmed that one of the profiles she was comparing had actually come from the victim, without having participated in creating that profile. Id. at 2236. Justice Kagan opined that the expert's testimony required the jury to accept the validity of a DNA test that had not been scrutinized by cross-examination. Id. at 2268-69 (Kagan, J., dissenting).
As in Melendez-Diaz and Bullcoming, Justice Thomas provided the decisive fifth vote, but in Williams he concluded that the DNA lab reports lacked sufficient formality or solemnity to be considered testimonial. Id. at 2260-61 (Thomas, J., concurring in judgment). And none of these three cases provide a single clear rule because Justice Thomas provided the fifth critical vote in all three cases based on his individual theory that evidence is testimonial only if it bears indicia of formality and solemnity.
The dissent accuses us of counting perspectives and camps rather than signatures. Dissent at 3. However, counting signatures ignores the fact that a majority of the Court has never agreed on a test for expert witnesses, making it very difficult for courts to effectively follow. Four justices joined an opinion holding that the confrontation clause does not apply to expert witnesses when expressing their own conclusions, four justices attached no importance to the fact that evidence came in through an expert witness, and one justice focused on the solemnity of the evidence relied upon by an expert witness. 132 S.Ct. at 2228 (plurality opinion), 2260 (Thomas, J., concurring in judgment), 2269-70 (Kagan, J., dissenting). Even if we count signatures, our decision is consistent with the five justices in Williams who agree that experts may rely upon and disclose independent DNA laboratory results when testifying about their own conclusions without violating a defendant's confrontation rights. Id. at 2240 (plurality opinion), 2255 (Thomas, J., concurring in judgment). Our test respects the five justices in Williams, while recognizing that in some circumstances an expert witness's testimony may trigger the confrontation clause. Our opinion also does not disregard the results in Melendez-Diaz and Bullcoming because we address only statements made by expert witnesses and not formalized certificates that are the equivalent of affidavits.
In addition to there being no clear reasoning for expert witnesses, no ruling of the Court is directly on point here. In three important ways, this case brings us into uncharted constitutional territory. First, Melendez-Diaz did not reach back to encompass every factual predicate behind an expert witness's findings. The confrontation clause does not demand the live testimony of "anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device . . . ." Melendez-Diaz, 557 U.S. at 311 n.1. In other words, while a break in the chain of custody might detract from the credibility of an expert analysis of some piece of evidence, this break in the chain does not violate the confrontation clause. Id. Second, Bullcoming expressly did not reach the confrontation clause status of raw data generated by an automated process without human input. Rather, the subject matter of the confrontation clause concerns those "past events and human actions not revealed in raw, machine-produced data . ..." 131 S.Ct. at 2714 (emphasis added); see also id. At 2723 (Sotomayor, J., concurring) ("This is not a case in which the State introduced only machine-generated results, such as a printout from a gas chromatograph. . . . Thus we do not decide whether ... a State could introduce raw data generated by a machine in conjunction with the testimony of an expert witness."). Finally, Williams did not address how the confrontation clause applies to the "panoply of crime laboratory reports and underlying technical statements written by (or otherwise made by) laboratory technicians." 132 S.Ct. at 2244-45 (Breyer, J., concurring). The same question Williams did not reach—the confrontation clause status of forensic reports, expert witnesses, and the technical data underlying their conclusions—is now squarely before us.
B. "Witnesses Against"—Reaching a Test
In the absence of binding Supreme Court precedent for a rule, we now turn to the plain language of the confrontation right. By its own terms, the confrontation right applies only to "the witnesses against [the defendant]." As we explain below, the word "witness" indicates the act of attesting to facts, while the word "against" indicates that the facts attested to must be adversarial in nature.
The act of imparting factual information to the court is the sine qua non of a witness. Crawford tells us that a "witness" is a person who "'bear[s] testimony'" and that "testimony" is "'[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.'" 541 U.S. at 52 (quoting 2 Noah Webster, An American Dictionary of the English Language (1828)). This definition does not sweep in analysts whose only role is to operate a machine or add a reagent to a mixture.
Justice Kagan pointed out in her dissent in Williams that cross-examining a witness could be valuable in order to reveal erroneous lab work. 132 S.Ct. at 2264-65 ("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."). The live testimony of a subordinate analyst may be desirable, but the question is whether it is constitutionally required—and as the Court recognized in Melendez-Diaz, the potential to introduce error does not a "witness" make. In Melendez-Diaz, Justice Kennedy pointed out that many people might be involved in a single drug test and that each of those people had the "power to introduce error, " and he asserted that requiring all or "even one of these individuals to testify threatens to disrupt if not end many prosecutions . . . ." 557 U.S. at 333 (Kennedy, J., dissenting). In response, Justice Scalia clarified that the confrontation clause does not demand the live testimony of "anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device. . . ." Id. at 311 n.1. Although the prosecution is indeed obliged to establish the chain of ...