Williams:"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."

If only it were that simple . . .

I agree! On deeper reading of this extremely long, peculiarly fractured, plularity decision (4+1-4), the holding is something else. Justice Thomas, concurring, does not join the above analysis,so the case seems to turn on Justice Alito's alternative holding: the Confrontation Cl was not violated because the CellMark report was not testimonial and, thus,could have been introduced for its truth! Is this correct? If so, what is the actual basis for the report not being testimonial? Alito and Thomas seem to disagree.

Kagan adroitly explains the "bloody mess" as one law professor has dubbed the decision: http://sentencing.typepad.com/...-by-deeply-divi.html

Reliance on this decision may be more dangerous than beneficial.

This message has been edited. Last edited by: John A. Stride,

The reason for it not being testimonial seems to be that it wasn't directed towards prosecution of any particular person. There wasn't a suspect at the time, and DNA is used to exonerate as well as convict. Of course, that seems at odds with how testimonial has been defined at this point. This opinion is more confusing than helpful!

Andrea, I count only four votes in support of that view. Thomas takes what seems to me as a narrower view: i.e., the report is not testimonial because it was generated, as you intimate, with no targeted suspect but also, critically, it lacked solemnity--certifying nothing.

This message has been edited. Last edited by: John A. Stride,

It comes down to which is the "narrowest" view, but neither one strikes me as notably more narrow than the other. They're both construing whether the report was testimonial, and both give a single narrow reason for why it wasn't.

As they say, the plurality opinion rule is more easily stated than applied.

Agreed. And if the Court actually decided something, we have to give Thomas's opinion some weight. So we have to divine what that narrowest holding is. But are Alito's and Thomas's reasons too inconsistent? Can we only say that the report was not testimonial (and this may be so only until the next opinion/replacement of jutsices) or can we say that Thomas's reasoning restricts Alito's reasoning, or something else? I'm having more than a little difficulty understanding precisely what this opinion has actually resolved and its effect.

"If the facts are identical to Williams, then the report is nontestimonial."

I think that's about all we can definitively say.

With the proviso that this decision, more than just about any other, is on such fragile ground anyone relying on it does so at their peril and had better assert alternative arguments?

I actually long for the days of Ohio v. Roberts. Thanks Tony.

But does this make anything worse? Or are the same arguments we've been using valid?

This message has been edited. Last edited by: David Newell,

The 4-1-4 breakdown is almost like an equally divided court. Could you argue this is no precedent at all?

That's my interpreation,and I'm sticking to it.