As we await a decision this month from SCOTUS, here is some language from a recent Texas case on whether a non-testing supervisor can testify as an expert without violating the 6th Amendment Confrontation Clause:

The facts of the present case are distinguishable from those in Bullcoming and consistent with the exception that Justice Sotomayor identified. Rhonda Craig was a supervisor [in a FBI DNA lab], involved with every aspect of the testing process, first by determining which samples should be tested, which tests should be conducted and in what order, then through supervision, then through analysis of the data, and lastly by writing the report. She had a direct connection to the scientific test at issue. The appellant's Confrontation Clause rights were not violated by admission of Craig's testimony.

Do you think this analysis will survive? Get your votes in before SCOTUS decides.

I think so because her opinion would be sufficiently independent rather than a mere scrivener under Bullcoming. I don't think the expert in the case currently before SCOTUS could even claim that level of involvement.

But perhaps I should say, I hope so.

Notable:

The DNA supervisor/expert witness seemingly did not actually conduct or personally witness the lab analyst actually conducting the testing. In other words, the expert witness relied on the notes/records of the actual testing, albeit in a role as a supervisor.

The prosecution wins this time. Long opinion, still reading. opinion

Four votes say the underlying facts relied upon by the expert were not offered as truthful facts through the expert. The fifth vote comes from Thomas, who says the opposite: of course the expert thought the underlying facts were true, but the opinion was not testimonial.

Very splintered reasoning. But at least we get to keep our expert opinions.

Can we really rely on this opinion for anything other than a demonstration of the courts' near equipoise? Justice Thomas's reasoning (a view he holds alone on the court) appears especially vulnerable. It gives too much credit to call his opinion a swing-vote: he agrees as much with the dissent as the others. I'm not sure that the court usefully decided a thing!

Would the outcome be different if this was a jury trial rather than a bench trial?

I would like to think not, but it may have tilted the scales here (some sort of latent harm analysis).

Sure sounds like we are headed toward a limiting instruction that educates jurors on the role of an expert and the manner in which the expert forms an opinion from information that may or may not have been admitted and may or may not be true.

I'm beginning to think this case is downright dangerous. The best advice is to bring your witnesses to court and not try and finesse key scientific evidence this way. Anybody remember Grady v. Corbin? Probably not, because it was a lousy decision that caused problems and the Court quickly overruled it.

I'm totally with you John. Grady was an important lesson.

And by "lousy", you mean unworkable. Regardless of our view of a constitutional rule, ultimately, it must prove to be clear and workable in the real world of our courtrooms.

Williams provides nearly nothing by way of clarity (except the outcome). I'm doing a presentation this weekend to Ohio prosecutors on the case, and I already have more slides with questions than answers.

The best clue about why the four members of the plurality abandoned the Crawford ship is found in the third sentence of their opinion:

"We also decide whether Crawford substantially impedes the ability of prosecutors to introduce DNA evidence and thus may effectively relegate the prosecution in some cases to reliance on older, less reliable forms of proof."

One sentence in Kagan's dissent sums it all up:

"Yet no one can tell in what way or to what extent they are altered because no proposed limitation commands the support of a majority."

Breyer may have had the best idea: reargue the case and seek a solid majority for a principle that would apply more broadly to the issue of expert testimony for lab work.

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