In State v. Liu, a 5-4 majority on the Washington Suprme Court declared the the Confrontation Clause of the Sixth Amendment to the U.S. Constitution does not require that DNA tests or other hard to decipher scientific tests be presented in court by the technician who conducted the test. These tests are not inculpatory because a juror would not understand how the data bears on the guilt or innocence of the defendant without the testimony of an expert witness. Therefore these complicated reports are not “witness[es] against” the defendant and need not be available for confrontation by the defendant. While the U.S. Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009) might suggest otherwise, the Washington Court determined that the five Justice majority who signed that opinion was not really a majority because Justice Thomas also wrote an idiosyncratic concurrence. The Washington Court started counting five Supreme Court Justice signatures, but stopped at four.
Background: In 2007, Sione Liu was convicted of murdering his fiancée six years previously. At trial, the state introduced DNA samples taken from the Liu and the crime scene, temperature readings from the body and the environment, and several statements from the autopsy report and postmortem toxicology testing. This evidence was admitted through testimony by employees of various forensic labs who had not completed the tests themselves. Lui objected on confrontation clause grounds and was overruled. The conviction was affirmed on appeal.
Majority Opinion: Five Justices held that the Confrontation Clause of the U.S. Constitution requires the drafters of laboratory reports to testify and be available for cross-examination if (and only if) the report both makes a factual statement to the tribunal and this statement helps identify or inculpate the defendant. Applying this test here, the Court determined that the DNA test was only inculpatory when interpreted by the technician testifying at trial; therefore the confrontation clause was satisfied. Similarly, the Court determined that the temperature readings of the body and its environment were not inculpatory until the testifying witness opined about the time of death these readings suggested, again satisfying the confrontation clause. In contrast, the Court found that the toxicology and autopsy reports were inculpatory because they were prepared for the purpose of identifying the manner of death and tended to prove elements of guilt and rebut a defense theory. However, the Court found this to be harmless error.
Dissent: Four Justices would have adopted a “conduit test” in which a confrontation clause violation occurs if a testifying expert serves as a mere conduit to admit the statements of a non-testifying party into evidence, but no violation occurs if the expert draws on inadmissible statements but testifies as to his or her own opinion and conclusions. The late Justice Tom Chambers joined the dissent in result only, participating as Justice Pro Tempore because Justice Gordon McCloud had written an amicus brief on behalf of the Washington Association of Criminal Defense Lawyers before joining the bench.
Commentary: The Washington Court appears to be inviting the U.S. Supreme Court to review its decision. First, the Washington Court declined to find any adequate and independent state grounds to resolve the case and relied solely on federal constitutional analysis. Then, the Washington Court surveyed six recent Confrontation Clause cases from the U.S. Supreme Court and declared itself unable to find any precedential guidance. Finally, the Washington Court advanced a highly fact specific rule whose application produced fractured results even in the case at bar. Further, and as a matter of legal realism, the majority opinion does not account for the possibility of fraud in forensic laboratories, such as spectacularly occured in a Massachussets crime lab a few years ago.
The majority opinion utilized a highly political analysis of the U.S. Supreme Court’s recent decisions more typically advanced by law professors than the bench. The weakness in the majority’s opinion is that it treats the U.S. Supreme Court’s Melendez-Diaz opinion as a mere plurality, though it attracted the five votes necessary to announce law. However, the Justices in the majority are quite correct in the general proposition that the fractured Confrontation Clause jurisprudence of the U.S. Supreme Court is difficult to synthesize. The Washington Supreme Court has given the U.S. Supreme Court a golden opportunity to clarify the state of the law.