PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS OF ALABAMA
petition for a writ of certiorari is denied.
Justice Gorsuch, with whom Justice Sotomayor joins,
dissenting from the denial of certiorari.
and more, forensic evidence plays a decisive role in criminal
trials today. But it is hardly "immune from the risk of
manipulation." Melendez-Diaz v. Massachusetts,
557 U.S. 305, 318 (2009). A forensic analyst "may feel
pressure-or have an incentive-to alter the evidence in a
manner favorable to the prosecution." Ibid.
Even the most well-meaning analyst may lack essential
training, contaminate a sample, or err during the testing
process. See ibid.; see also Bullcoming v. New
Mexico, 564 U.S. 647, 654, n. 1 (2011) (documenting
laboratory problems). To guard against such mischief and
mistake and the risk of false convictions they invite, our
criminal justice system depends on adversarial testing and
cross-examination. Because cross-examination may be "the
greatest legal engine ever invented for the discovery of
truth," California v. Green, 399 U.S. 149, 158
(1970) (internal quotation marks omitted), the Constitution
promises every person accused of a crime the right to
confront his accusers. Amdt. 6.
promise was broken here. To prove Vanessa Stuart was driving
under the influence, the State of Alabama introduced in
evidence the results of a blood-alcohol test conducted hours
after her arrest. But the State refused to bring to the stand
the analyst who performed the test. Instead, the State called
a different analyst. Using the results of the test
after her arrest and the rate at which alcohol is
metabolized, this analyst sought to estimate for the jury Ms.
Stuart's blood-alcohol level hours earlier when she was
driving. Through these steps, the State effectively denied
Ms. Stuart the chance to confront the witness who supplied a
foundational piece of evidence in her conviction. The engine
of cross-examination was left unengaged, and the Sixth
Amendment was violated.
fair, the problem appears to be largely of our creation. This
Court's most recent foray in this field, Williams v.
Illinois, 567 U.S. 50 (2012), yielded no majority and
its various opinions have sown confusion in courts across the
country. See, e.g., State v. Dotson, 450 S.W.3d 1,
68 (Tenn. 2014) ("The Supreme Court's fractured
decision in Williams provides little guidance and is
of uncertain precedential value"); State v.
Michaels, 219 N. J. 1, 31, 95 A. 3d 648, 666 (N.J. 2014)
("We find Williams's force, as precedent,
at best unclear"); United States v. Turner, 709
F.3d 1187, 1189 (CA7 2013); United States v. James,
712 F.3d 79, 95 (CA2 2013).
case supplies another example of that confusion. Though the
opinion of the Alabama court is terse, the State defends it
by arguing that, "[u]nder the rule of the
Williams plurality," the prosecution was free
to introduce the forensic report in this case without calling
the analyst who prepared it. Brief in Opposition 6. This is
so, the State says, because it didn't offer the report
for the truth of what it said about Ms. Stuart's
blood-alcohol level at the time of the test, only to provide
the State's testifying expert a basis for estimating Ms.
Stuart's blood-alcohol level when she was driving.
while Williams yielded no majority opinion, at least
five Justices rejected this logic-and for good reason. After
all, why would any prosecutor bother to offer in evidence the
nontestifying analyst's report in this case except to
prove the truth of its assertions about the level of alcohol
in Ms. Stuart's blood at the time of the test? The whole
point of the exercise was to establish-because of the
report's truth-a basis for the jury to credit the
testifying expert's estimation of Ms. Stuart's
blood-alcohol level hours earlier. As the four dissenting
Justices in Williams explained, "when a witness
. . . repeats an out-of-court statement as the basis for a
conclusion, . . . the statement's utility is then
dependent on its truth." 567 U.S., at 126 (opinion of
KAGAN, J.). With this JUSTICE THOMAS fully agreed, observing
that "[t]here is no meaningful distinction between
disclosing an out-of-court statement so that the factfinder
may evaluate the [testifying] expert's opinion and
disclosing that statement for its truth." Id.,
at 106 (opinion concurring in judgment).
with this difficulty, the State offers an alternative defense
of its judgment in this case. Even if it did offer the
forensic report for the truth of its assertion about Ms.
Stuart's blood-alcohol level at the time of her arrest,
the State contends that the Sixth Amendment right to
confrontation failed to attach because the report wasn't
"testimonial." Brief in Opposition 9.
piecing together the fractured decision in Williams
reveals this argument to be mistaken too-and this time in the
view of eight Justices. The four-Justice
Williams plurality took the view that a forensic
report qualifies as testimonial only when it is
"prepared for the primary purpose of accusing a targeted
individual" who is "in custody [or] under
suspicion." 567 U.S., at 84. Meanwhile, four dissenting
Justices took the broader view that even a report devised
purely for investigatory purposes without a target in mind
can qualify as testimonial when it is "made under
circumstances which would lead an objective witness
reasonably to believe that [it] would be available for use at
a later trial." Id., at 121 (KAGAN, J.,
dissenting) (internal quotation marks omitted). But however
you slice it, a routine postarrest forensic report like the
one here must qualify as testimonial. For even under the
plurality's more demanding test, there's no question
that Ms. Stuart was in custody when the government
conducted its forensic test or that the report was
prepared for the primary purpose of securing her conviction.
I believe we owe lower courts struggling to abide our
holdings more clarity than we have afforded them in this
area. Williams imposes on courts with crowded
dockets the job of trying to distill holdings on two separate
and important issues from four competing opinions. The errors
here may be manifest, but they are understandable ...