Williams v. Illinois

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

WILLIAMS v. ILLINOIS

CERTIORARI TO THE SUPREME COURT OF ILLINOIS

No. 10–8505. Argued December 6, 2011—Decided June 18, 2012

At petitioner’s bench trial for rape, Sandra Lambatos, a forensic spe-

cialist at the Illinois State Police lab, testified that she matched a

DNA profile produced by an outside laboratory, Cellmark, to a profile

the state lab produced using a sample of petitioner’s blood. She testi-

fied that Cellmark was an accredited laboratory and that business

records showed that vaginal swabs taken from the victim, L. J., were

sent to Cellmark and returned. She offered no other statement for

the purpose of identifying the sample used for Cellmark’s profile or

establishing how Cellmark handled or tested the sample. Nor did

she vouch for the accuracy of Cellmark’s profile. The defense moved

to exclude, on Confrontation Clause grounds, Lambatos’ testimony

insofar as it implicated events at Cellmark, but the prosecution said

that petitioner’s confrontation rights were satisfied because he had

the opportunity to cross-examine the expert who had testified as to

the match. The prosecutor argued that Illinois Rule of Evidence 703

permitted an expert to disclose facts on which the expert’s opinion is

based even if the expert is not competent to testify to those underly-

ing facts, and that any deficiency went to the weight of the evidence,

not its admissibility. The trial court admitted the evidence and found

petitioner guilty. Both the Illinois Court of Appeals and the State

Supreme Court affirmed, concluding that Lambatos’ testimony did

not violate petitioner’s confrontation rights because Cellmark’s report

was not offered into evidence to prove the truth of the matter

asserted.

Held: The judgment is affirmed.

238 Ill. 2d 125, 939 N. E. 2d 268, affirmed.

JUSTICE ALITO, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY, and

JUSTICE BREYER, concluded that the form of expert testimony given in

this case does not violate the Confrontation Clause. Pp. 10–33.

2 WILLIAMS v. ILLINOIS

Syllabus

(a) Before Crawford v. Washington, 541 U. S. 36, this Court took

the view that the Confrontation Clause did not bar the admission of

out-of-court statements that fell within a firmly rooted exception to

the hearsay rule. In Crawford, the Court held that such statements

could be “admitted only where the declarant is unavailable, and only

where the defendant has had a prior opportunity to cross-examine.”

Id., at 59. In both Melendez-Diaz v. Massachusetts, 557 U. S. 305,

and Bullcoming v. New Mexico, 564 U. S. ___, two of the many cases

that have arisen from Crawford, this Court ruled that scientific re-

ports could not be used as substantive evidence against a defendant

unless the analyst who prepared and certified the report was subject

to confrontation. In each case, the report at issue “contain[ed] a tes-

timonial certification, made in order to prove a fact at a criminal

trial.” 564 U. S., at ___–___. Here, in contrast, the question is the

constitutionality of allowing an expert witness to discuss others’

testimonial statements if those statements are not themselves admit-

ted as evidence. Pp. 10–13.

(b) An expert witness may voice an opinion based on facts concern-

ing the events at issue even if the expert lacks first-hand knowledge

of those facts. A long tradition in American courts permits an expert

to testify in the form of a “hypothetical question,” where the expert

assumes the truth of factual predicates and then offers testimony

based on those assumptions. See Forsyth v. Doolittle, 120 U. S. 73,

77. Modern evidence rules dispense with the need for hypothetical

questions and permit an expert to base an opinion on facts “made

known to the expert at or before the hearing,” though such reliance

does not constitute admissible evidence of the underlying infor-

mation. Ill. Rule Evid. 703; Fed. Rule Evid. 703. Both Illinois and

Federal Rules bar an expert from disclosing the inadmissible evi-

dence in jury trials but not in bench trials. This is important because

Crawford, while departing from prior Confrontation Clause precedent

in other respects, reaffirmed the proposition that the Clause “does

not bar the use of testimonial statements for purposes other than es-

tablishing the truth of the matter asserted.” 541 U. S., at 59, n. 9.

Pp. 13–16.

(c) For Confrontation Clause purposes, the references to Cellmark

in the trial record either were not hearsay or were not offered for the

truth of the matter asserted. Pp. 16–27.

(1) Petitioner’s confrontation right was not violated when Lam-

batos answered “yes” to a question about whether there was a match

between the DNA profile “found in semen from the vaginal swabs of

[L. J.]” and the one identified as petitioner’s. Under Illinois law, this

putatively offending phrase was not admissible for the purpose of

proving the truth of the matter asserted—i.e., that the matching

Cite as: 567 U. S. ____ (2012) 3

Syllabus

DNA profile was “found in semen from the vaginal swabs.” Rather,

that fact was a mere premise of the prosecutor’s question, and Lam-

batos simply assumed it to be true in giving her answer. Because

this was a bench trial, the Court assumes that the trial judge under-

stood that the testimony was not admissible to prove the truth of the

matter asserted. It is also unlikely that the judge took the testimony

as providing chain-of-custody evidence. The record does not support

such an understanding; no trial judge is likely to be so confused; and

the admissible evidence left little room for argument that Cellmark’s

sample came from any source but L. J.’s swabs, since the profile

matched the very man she identified in a lineup and at trial as her

attacker. Pp. 16–21.

(2) Nor did the substance of Cellmark’s report need to be intro-

duced in order to show that Cellmark’s profile was based on the se-

men in L. J.’s swabs or that its procedures were reliable. The issue

here is whether petitioner’s confrontation right was violated, not

whether the State offered sufficient foundational evidence to support

the admission of Lambatos’ opinion. If there were no proof that

Cellmark’s profile was accurate, Lambatos’ testimony would be irrel-

evant, but the Confrontation Clause bars not the admission of irrele-

vant evidence, but the admission of testimonial statements by de-

clarants who are not subject to cross-examination. Here, the trial

record does not lack admissible evidence with respect to the source of

the sample tested by Cellmark or the reliability of its profile. The

State offered conventional chain-of-custody evidence, and the match

between Cellmark’s profile and petitioner’s was telling confirmation

that Cellmark’s profile was deduced from the semen on L. J.’s swabs.

The match also provided strong circumstantial evidence about the re-

liability of Cellmark’s work. Pp. 21–25.

(3) This conclusion is consistent with Bullcoming and Melendez-

Diaz, where forensic reports were introduced for the purpose of prov-

ing the truth of what they asserted. In contrast, Cellmark’s report

was considered for the limited purpose of seeing whether it matched

something else, and the relevance of that match was established by

independent circumstantial evidence showing that the report was

based on a sample from the crime scene. There are at least four safe-

guards to prevent abuses in such situations. First, trial courts can

screen out experts who would act as conduits for hearsay by strictly

enforcing the requirement that experts display genuine “scientific,

technical, or other specialized knowledge” to help the trier of fact un-

derstand the evidence or determine a fact at issue. Fed. Rule Evid.

702(a). Second, experts are generally precluded from disclosing in-

admissible evidence to a jury. Third, if such evidence is disclosed, a

trial judge may instruct the jury that the statements cannot be ac-

4 WILLIAMS v. ILLINOIS

Syllabus

cepted for their truth, and that an expert’s opinion is only as good as

the independent evidence establishing its underlying premises.

Fourth, if the prosecution cannot muster independent admissible evi-

dence to prove foundational facts, the expert’s testimony cannot be

given weight by the trier of fact. Pp. 25–27.

(e) Even if Cellmark’s report had been introduced for its truth,

there would have been no Confrontation Clause violation. The

Clause refers to testimony by “witnesses against” an accused, prohib-

iting modern-day practices that are tantamount to the abuses that

gave rise to the confrontation right, namely, (a) out-of-court state-

ments having the primary purpose of accusing a targeted individual

of engaging in criminal conduct, and (b) formalized statements such

as affidavits, depositions, prior testimony, or confessions. These

characteristics were present in every post-Crawford case in which a

Confrontation Clause violation has been found, except for Hammon v.

Indiana, 547 U. S. 813. But, even in Hammon, the particular state-

ment, elicited during police interrogation, had the primary purpose of

accusing a targeted individual. A person who makes a statement to

resolve an ongoing emergency is not like a trial witness because the

declarant’s purpose is to bring an end to an ongoing threat. Michigan

v. Bryant, 562 U. S. ___, ___. Such a statement’s admissibility “is the

concern of . . . rules of evidence, not the Confrontation Clause. ” Id.,

___–___ . The forensic reports in Melendez-Diaz and Bullcoming ran

afoul of the Confrontation Clause because they were the equivalent of

affidavits made for the purpose of proving a particular criminal de-

fendant’s guilt. But the Cellmark report’s primary purpose was to

catch a dangerous rapist who was still at large, not to obtain evidence

for use against petitioner, who was neither in custody nor under sus-

picion at that time. Nor could anyone at Cellmark possibly know

that the profile would inculpate petitioner. There was thus no “pro-

spect of fabrication” and no incentive to produce anything other than

a scientifically sound and reliable profile. Bryant, supra, at ___, ___.

Lab technicians producing a DNA profile generally have no way of

knowing whether it will turn out to be incriminating, exonerating, or

both. And with numerous technicians working on a profile, it is like-

ly that each technician’s sole purpose is to perform a task in accord-

ance with accepted procedures. The knowledge that defects in a DNA

profile may be detected from the profile itself provides a further safe-

guard. Pp. 28–33.

JUSTICE THOMAS concluded that the disclosure of Cellmark’s out-of-

court statements through Lambatos’ expert testimony did not violate

the Confrontation Clause solely because Cellmark’s statements

lacked the requisite “formality and solemnity” to be considered “ ‘tes-

timonial,’ ” see Michigan v. Bryant, 562 U. S. ___, ___ (THOMAS, J.,

Cite as: 567 U. S. ____ (2012) 5

Syllabus

concurring in judgment). Pp. 1–16.

(a) There was no plausible reason for the introduction of Cellmark’s

statements other than to establish their truth. Pp. 1–8.

(1) Illinois Rule of Evidence 703 permits an expert to base his

opinion on facts about which he lacks personal knowledge and to dis-

close those facts to the trier of fact. Under Illinois law, such facts are

not admitted for their truth, but only to explain the basis of the ex-

pert’s opinion. See People v. Pasch, 152 Ill. 2d 133. But state evi-

dence rules do not trump a defendant’s constitutional right to con-

frontation. This Court ensures that an out-of-court statement was

introduced for a “legitimate, nonhearsay purpose” before relying on

the not-for-its-truth rationale to dismiss the Confrontation Clause’s

application. See Tennessee v. Street, 471 U. S. 409, 417. Statements

introduced to explain the basis of an expert’s opinion are not intro-

duced for a plausible nonhearsay purpose because, to use the basis

testimony in evaluating the expert’s opinion, the factfinder must con-

sider the truth of the basis testimony. This commonsense conclusion

is not undermined by any historical practice exempting expert basis

testimony from the rigors of the Confrontation Clause. Before the

Federal Rules of Evidence were adopted in 1975, an expert could ren-

der an opinion based only on facts that the expert had personally per-

ceived or learned at trial. In 1975, that universe of facts was ex-

panded to include facts that the expert learned out of court by means

other than his own perception. The disclosure of such facts raises

Confrontation Clause concerns. Pp. 2–5.

(2) Those concerns are fully applicable here. In concluding that

petitioner’s DNA profile matched the profile derived from L. J.’s

swabs, Lambatos relied on Cellmark’s out-of-court statements that

its profile was in fact derived from those swabs, rather than from

some other source. Thus, the validity of Lambatos’ opinion ultimate-

ly turned on the truth of Cellmark’s statements. Pp. 5–7.

(b) These statements, however, were not “testimonial” for purposes

of the Confrontation Clause, which “applies to ‘witnesses’ against the

accused—in other words, those who ‘bear testimony.’ ” Crawford v.

Washington, 541 U. S. 36, 51. “ ‘Testimony,’ ” in turn, is “ ‘[a] solemn

declaration or affirmation made for the purpose of establishing or

proving some fact.’ ” Ibid. In light of its text, the Confrontation

Clause regulates only the use of statements bearing “indicia of so-

lemnity.” Davis v. Washington, 547 U. S. 813, 836–837, 840 (opinion

of THOMAS, J.). This test comports with history because solemnity

marked the practices that the Confrontation Clause was designed to

eliminate, namely, the ex parte examination of witnesses under Eng-

lish bail and committal statutes. See id., at 835. Accordingly, the

Clause reaches “formalized testimonial materials,” such as deposi-

6 WILLIAMS v. ILLINOIS

Syllabus

tions, affidavits, and prior testimony, or statements resulting from

“formalized dialogue,” such as custodial interrogation. Bryant, supra,

at ___. Applying these principles, Cellmark’s report is not a state-

ment by a “witnes[s]” under the Confrontation Clause. It lacks the

solemnity of an affidavit or deposition, for it is neither a sworn nor a

certified declaration of fact. And, although it was produced at the re-

quest of law enforcement, it was not the product of formalized dia-

logue resembling custodial interrogation. Melendez-Diaz, 557 U. S.

305, and Bullcoming v. New Mexico, 564 U. S. ___, distinguished.

Pp. 8–15.

ALITO, J., announced the judgment of the Court and delivered an

opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.

BREYER, J., filed a concurring opinion. THOMAS, J., filed an opinion con-

curring in the judgment. KAGAN, J., filed a dissenting opinion, in which

SCALIA, GINSBURG, and SOTOMAYOR, JJ., joined.

Cite as: 567 U. S. ____ (2012) 1

Opinion of ALITO, J.

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–8505

_________________

SANDY WILLIAMS, PETITIONER v. ILLINOIS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

ILLINOIS

[June 18, 2012]

JUSTICE ALITO announced the judgment of the Court

and delivered an opinion, in which THE CHIEF JUSTICE,

JUSTICE KENNEDY, and JUSTICE BREYER join.

In this case, we decide whether Crawford v. Washing-

ton, 541 U. S. 36, 50 (2004), precludes an expert witness

from testifying in a manner that has long been allowed

under the law of evidence. Specifically, does Crawford bar

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? 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 reli-

ance on older, less reliable forms of proof.

In petitioner’s bench trial for rape, the prosecution

called an expert who testified that a DNA profile produced

by an outside laboratory, Cellmark, matched a profile

produced by the state police lab using a sample of peti-

tioner’s blood. On direct examination, the expert testified

that Cellmark was an accredited laboratory and that

Cellmark provided the police with a DNA profile. The

expert also explained the notations on documents admit-

2 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

ted as business records, stating that, according to the

records, vaginal swabs taken from the victim were sent to

and received back from Cellmark. The expert made no

other statement that was offered for the purpose of identi-

fying the sample of biological material used in deriving

the profile or for the purpose of establishing how Cellmark

handled or tested the sample. Nor did the expert vouch

for the accuracy of the profile that Cellmark produced.

Nevertheless, petitioner contends that the expert’s testi-

mony violated the Confrontation Clause as interpreted in

Crawford.

Petitioner’s main argument is that the expert went

astray when she referred to the DNA profile provided by

Cellmark as having been produced from semen found on

the victim’s vaginal swabs. But both the Illinois Appellate

Court and the Illinois Supreme Court found that this

statement was not admitted for the truth of the matter

asserted, and it is settled that the Confrontation Clause

does not bar the admission of such statements. See id., at

59–60, n. 9 (citing Tennessee v. Street, 471 U. S. 409

(1985)). For more than 200 years, the law of evidence has

permitted the sort of testimony that was given by the ex-

pert in this case. Under settled evidence law, an expert

may express an opinion that is based on facts that the

expert assumes, but does not know, to be true. It is then

up to the party who calls the expert to introduce other

evidence establishing the facts assumed by the expert.

While it was once the practice for an expert who based

an opinion on assumed facts to testify in the form of an an-

swer to a hypothetical question, modern practice does not

demand this formality and, in appropriate cases, permits

an expert to explain the facts on which his or her opinion

is based without testifying to the truth of those facts. See

Fed. Rule Evid. 703. That is precisely what occurred in

this case, and we should not lightly “swee[p] away an

accepted rule governing the admission of scientific evi-

Cite as: 567 U. S. ____ (2012) 3

Opinion of ALITO, J.

dence.” Melendez-Diaz v. Massachusetts, 557 U. S. 305,

330 (2009) (KENNEDY, J., dissenting).

We now conclude that this form of expert testimony does

not violate the Confrontation Clause because that provi-

sion has no application to out-of-court statements that

are not offered to prove the truth of the matter asserted.

When an expert testifies for the prosecution in a criminal

case, the defendant has the opportunity to cross-examine

the expert about any statements that are offered for their

truth. Out-of-court statements that are related by the

expert solely for the purpose of explaining the assump-

tions on which that opinion rests are not offered for their

truth and thus fall outside the scope of the Confrontation

Clause. Applying this rule to the present case, we con-

clude that the expert’s testimony did not violate the Sixth

Amendment.

As a second, independent basis for our decision, we also

conclude that even if the report produced by Cellmark had

been admitted into evidence, there would have been no

Confrontation Clause violation. The Cellmark report is

very different from the sort of extrajudicial statements,

such as affidavits, depositions, prior testimony, and con-

fessions, that the Confrontation Clause was originally

understood to reach. The report was produced before any

suspect was identified. The report was sought not for the

purpose of obtaining evidence to be used against petitioner,

who was not even under suspicion at the time, but for

the purpose of finding a rapist who was on the loose. And

the profile that Cellmark provided was not inherently

inculpatory. On the contrary, a DNA profile is evidence

that tends to exculpate all but one of the more than 7

billion people in the world today. The use of DNA evi-

dence to exonerate persons who have been wrongfully

accused or convicted is well known. If DNA profiles could

not be introduced without calling the technicians who

participated in the preparation of the profile, economic

4 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

pressures would encourage prosecutors to forgo DNA

testing and rely instead on older forms of evidence, such

as eyewitness identification, that are less reliable. See

Perry v. New Hampshire, 565 U. S. ___ (2012). The Con-

frontation Clause does not mandate such an undesirable

development. This conclusion will not prejudice any de-

fendant who really wishes to probe the reliability of the

DNA testing done in a particular case because those who

participated in the testing may always be subpoenaed by

the defense and questioned at trial.

I

A

On February 10, 2000, in Chicago, Illinois, a young

woman, L. J., was abducted while she was walking home

from work. The perpetrator forced her into his car and

raped her, then robbed her of her money and other per-

sonal items and pushed her out into the street. L. J. ran

home and reported the attack to her mother, who called

the police. An ambulance took L. J. to the hospital, where

doctors treated her wounds and took a blood sample and

vaginal swabs for a sexual-assault kit. A Chicago Police

detective collected the kit, labeled it with an inventory

number, and sent it under seal to the Illinois State Police

(ISP) lab.

At the ISP lab, a forensic scientist received the sealed

kit. He conducted a chemical test that confirmed the

presence of semen on the vaginal swabs, and he then

resealed the kit and placed it in a secure evidence freezer.

During the period in question, the ISP lab often sent

biological samples to Cellmark Diagnostics Laboratory in

Germantown, Maryland, for DNA testing. There was

evidence that the ISP lab sent L. J.’s vaginal swabs to

Cellmark for testing and that Cellmark sent back a report

containing a male DNA profile produced from semen taken

from those swabs. At this time, petitioner was not under

Cite as: 567 U. S. ____ (2012) 5

Opinion of ALITO, J.

suspicion for L. J.’s rape.

Sandra Lambatos, a forensic specialist at the ISP lab,

conducted a computer search to see if the Cellmark profile

matched any of the entries in the state DNA database.

The computer showed a match to a profile produced by the

lab from a sample of petitioner’s blood that had been taken

after he was arrested on unrelated charges on August 3,

2000.

On April 17, 2001, the police conducted a lineup at

which L. J. identified petitioner as her assailant. Peti-

tioner was then indicted for aggravated criminal sexual

assault, aggravated kidnaping, and aggravated robbery.

In lieu of a jury trial, petitioner chose to be tried before a

state judge.

B

Petitioner’s bench trial began in April 2006. In open

court, L. J. again identified petitioner as her attacker.

The State also offered three expert forensic witnesses to

link petitioner to the crime through his DNA. First, Brian

Hapack, an ISP forensic scientist, testified that he had

confirmed the presence of semen on the vaginal swabs

taken from L. J. by performing an acid phosphatase test.

After performing this test, he testified, he resealed the

evidence and left it in a secure freezer at the ISP lab.

Second, Karen Abbinanti, a state forensic analyst, testi-

fied that she had used Polymerase Chain Reaction (PCR)

and Short Tandem Repeat (STR) techniques to develop a

DNA profile from a blood sample that had been drawn

from petitioner after he was arrested in August 2000. She

also stated that she had entered petitioner’s DNA profile

into the state forensic database.

Third, the State offered Sandra Lambatos as an expert

witness in forensic biology and forensic DNA analysis. On

direct examination, Lambatos testified about the general

process of using the PCR and STR techniques to generate

6 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

DNA profiles from forensic samples such as blood and

semen. She then described how these DNA profiles could

be matched to an individual based on the individual’s

unique genetic code. In making a comparison between two

DNA profiles, Lambatos stated, it is a “commonly accepted”

practice within the scientific community for “one DNA

expert to rely on the records of another DNA expert.” App.

51. Lambatos also testified that Cellmark was an “accred-

ited crime lab” and that, in her experience, the ISP lab

routinely sent evidence samples via Federal Express to

Cellmark for DNA testing in order to expedite the testing

process and to “reduce [the lab’s] backlog.” Id., at 49–50.

To keep track of evidence samples and preserve the chain

of custody, Lambatos stated, she and other analysts relied

on sealed shipping containers and labeled shipping mani-

fests, and she added that experts in her field regularly

relied on such protocols. Id., at 50–51.

Lambatos was shown shipping manifests that were

admitted into evidence as business records, and she ex-

plained what they indicated, namely, that the ISP lab had

sent L. J.’s vaginal swabs to Cellmark, and that Cellmark

had sent them back, along with a deduced male DNA

profile. Id., at 52–55. The prosecutor asked Lambatos

whether there was “a computer match” between “the male

DNA profile found in semen from the vaginal swabs of

[L. J.]” and “[the] male DNA profile that had been identi-

fied” from petitioner’s blood sample. Id., at 55.

The defense attorney objected to this question for “lack

of foundation,” arguing that the prosecution had offered

“no evidence with regard to any testing that’s been done to

generate a DNA profile by another lab to be testified to by

this witness.” Ibid.

The prosecutor responded: “I‘m not getting at what

another lab did.” Id., at 56. Rather, she said, she was

simply asking Lambatos about “her own testing based on

[DNA] information” that she had received from Cellmark.

Cite as: 567 U. S. ____ (2012) 7

Opinion of ALITO, J.

Ibid. The trial judge agreed, noting, “If she says she didn’t

do her own testing and she relied on a test of another lab

and she’s testifying to that, we will see what she’s going to

say.” Ibid.

The prosecutor then proceeded, asking Lambatos, “Did

you compare the semen that had been identified by Brian

Hapack from the vaginal swabs of [L. J.] to the male DNA

profile that had been identified by Karen [Abbinanti] from

the blood of [petitioner]?” Ibid.

Lambatos answered “Yes.” Ibid. Defense counsel

lodged an objection “to the form of the question,” but the

trial judge overruled it. Ibid. Lambatos then testified

that, based on her own comparison of the two DNA pro-

files, she “concluded that [petitioner] cannot be excluded

as a possible source of the semen identified in the vaginal

swabs,” and that the probability of the profile’s appearing

in the general population was “1 in 8.7 quadrillion black,

1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic

unrelated individuals.” Id., at 57. Asked whether she

would “call this a match to [petitioner],” Lambatos an-

swered yes, again over defense counsel’s objection. Id.,

at 58.

The Cellmark report itself was neither admitted into

evidence nor shown to the factfinder. Lambatos did not

quote or read from the report; nor did she identify it as the

source of any of the opinions she expressed.

On cross-examination, Lambatos confirmed that she did

not conduct or observe any of the testing on the vaginal

swabs, and that her testimony relied on the DNA profile

produced by Cellmark. Id., at 59. She stated that she

trusted Cellmark to do reliable work because it was an

accredited lab, but she admitted she had not seen any of

the calibrations or work that Cellmark had done in deduc-

ing a male DNA profile from the vaginal swabs. Id., at

59–62.

Asked whether the DNA sample might have been de-

8 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

graded before Cellmark analyzed it, Lambatos answered

that, while degradation was technically possible, she

strongly doubted it had occurred in this case. She gave

two reasons. First, the ISP lab likely would have noticed

the degradation before sending the evidence off to Cell-

mark. Second, and more important, Lambatos also noted

that the data making up the DNA profile would ex-

hibit certain telltale signs if it had been deduced from a

degraded sample: The visual representation of the DNA

sequence would exhibit “specific patterns” of degradation,

and she “didn’t see any evidence” of that from looking at

the profile that Cellmark produced. Id., at 81–82.

When Lambatos finished testifying, the defense moved

to exclude her testimony “with regards to testing done by

[Cellmark]” based on the Confrontation Clause. Id., at 90.

Defense counsel argued that there was “no evidence with

regards to . . . any work done by [Cellmark] to justify

testimony coming into this case with regard to their anal-

ysis.” Ibid. Thus, while defense counsel objected to and

sought the exclusion of Lambatos’ testimony insofar as it

implicated events at the Cellmark lab, defense counsel did

not object to or move for the exclusion of any other portion

of Lambatos’ testimony, including statements regarding

the contents of the shipment sent to or received back from

Cellmark. See id., at 55, 56, 90. See also 385 Ill. App. 3d

359, 367–368, 895 N. E. 2d 961, 968 (2008) (chain-of-

custody argument based on shipping manifests waived).

The prosecution responded that petitioner’s Confronta-

tion Clause rights were satisfied because he had the op-

portunity to cross-examine the expert who had testified

that there was a match between the DNA profiles pro-

duced by Cellmark and Abbinanti. App. 91. Invoking

Illinois Rule of Evidence 703,1 the prosecutor argued that

——————

1 Consistent with the Federal Rules, Illinois Rule of Evidence 703

provides as follows:

Cite as: 567 U. S. ____ (2012) 9

Opinion of ALITO, J.

an expert is allowed to disclose the facts on which the

expert’s opinion is based even if the expert is not compe-

tent to testify to those underlying facts. She further ar-

gued that any deficiency in the foundation for the expert’s

opinion “[d]oesn’t go to the admissibility of [that] testi-

mony,” but instead “goes to the weight of the testimony.”

App. 91.

The trial judge agreed with the prosecution and stated

that “the issue is . . . what weight do you give the test, not

do you exclude it.” Id., at 94. Accordingly, the judge

stated that he would not exclude Lambatos’ testimony,

which was “based on her own independent testing of the

data received from [Cellmark].” Id., at 94–95 (alteration

in original).

The trial court found petitioner guilty of the charges

against him. The state court of appeals affirmed in rele-

vant part, concluding that Lambatos’ testimony did not

violate petitioner’s confrontation rights because the Cell-

mark report was not offered into evidence to prove the truth

of the matter it asserted. See 385 Ill. App. 3d, at 369,

895 N. E. 2d, at 969–970 (“Cellmark’s report was not

offered for the truth of the matter asserted; rather, it was

offered to provide a basis for Lambatos’ opinion”) The

Supreme Court of Illinois also affirmed. 238 Ill. 2d 125,

939 N. E. 2d 268 (2010). Under state law, the court noted,

the Cellmark report could not be used as substantive

evidence. When Lambatos referenced the report during

her direct examination, she did so “for the limited purpose

of explaining the basis for [her expert opinion],” not for the

purpose of showing “the truth of the matter asserted” by

——————

“The facts or data in the particular case upon which an expert bases

an opinion or inference may be those perceived by or made known to

the expert at or before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming opinions or inferences

upon the subject, the facts or data need not be admissible in

evidence.”

10 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

the report. Id., at 150, 939 N. E. 2d, at 282. Thus, the

report was not used to establish its truth, but only “to

show the underlying facts and data Lambatos used before

rendering an expert opinion.” Id., at 145, 939 N. E. 2d,

at 279.

We granted certiorari. 564 U. S. ___ (2011).

II

A

The Confrontation Clause of the Sixth Amendment

provides that, “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to be confronted with the wit-

nesses against him.” Before Crawford, this Court took the

view that the Confrontation Clause did not bar the admis-

sion of an out-of-court statement that fell within a firmly

rooted exception to the hearsay rule, see Ohio v. Roberts,

448 U. S. 56, 66 (1980), but in Crawford, the Court adopted

a fundamentally new interpretation of the confronta-

tion right, holding that “[t]estimonial statements of wit-

nesses absent from trial [can be] admitted only where the

declarant is unavailable, and only where the defendant

has had a prior opportunity to cross-examine.” 541 U. S.,

at 59. Crawford has resulted in a steady stream of new

cases in this Court. See Bullcoming v. New Mexico, 564

U. S. ___ (2011); Michigan v. Bryant, 562 U. S. ___ (2011);

Melendez-Diaz, 557 U. S. 305; Giles v. California, 554

U. S. 353 (2008); Indiana v. Edwards, 554 U. S. 164

(2008); Davis v. Washington, 547 U. S. 813 (2006).

Two of these decisions involved scientific reports. In

Melendez-Diaz, the defendant was arrested and charged

with distributing and trafficking in cocaine. At trial, the

prosecution introduced bags of a white powdery substance

that had been found in the defendant’s possession. The

trial court also admitted into evidence three “certificates of

analysis” from the state forensic laboratory stating that

the bags had been “examined with the following results:

Cite as: 567 U. S. ____ (2012) 11

Opinion of ALITO, J.

The substance was found to contain: Cocaine.” 557 U. S.,

at 308 (internal quotation marks omitted).

The Court held that the admission of these certificates,

which were executed under oath before a notary, violated

the Sixth Amendment. They were created for “the sole

purpose of providing evidence against a defendant,” id.,

at 323, and were “ ‘quite plainly affidavits,’ ” id., at 330

(THOMAS, J., concurring). The Court emphasized that the

introduction of the report to prove the nature of the sub-

stance found in the defendant’s possession was tanta-

mount to “live, in-court testimony” on that critical fact and

that the certificates did “precisely what a witness does on

direct examination.” Id., at 311 (internal quotation marks

omitted). There was no doubt that the certificates were

used to prove the truth of the matter they asserted. Un-

der state law, “the sole purpose of the affidavits was to

provide prima facie evidence of the composition, quality,

and the net weight of the analyzed substance.” Ibid.

(internal quotation marks omitted and emphasis deleted).

On these facts, the Court said, it was clear that the certif-

icates were “testimonial statements” that could not be

introduced unless their authors were subjected to the “ ‘cru-

cible of cross-examination.’ ” Id., at 311, 317 (quoting

Crawford, supra, at 61).

In Bullcoming, we held that another scientific report

could not be used as substantive evidence against the de-

fendant unless the analyst who prepared and certified

the report was subject to confrontation. The defendant in

that case had been convicted of driving while intoxicated.

At trial, the court admitted into evidence a forensic report

certifying that a sample of the defendant’s blood had an

alcohol concentration of 0.21 grams per hundred milli-

liters, well above the legal limit. Instead of calling the

analyst who signed and certified the forensic report, the

prosecution called another analyst who had not performed

or observed the actual analysis, but was only familiar with

12 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

the general testing procedures of the laboratory. The

Court declined to accept this surrogate testimony, despite

the fact that the testifying analyst was a “knowledgeable

representative of the laboratory” who could “explain the

lab’s processes and the details of the report.” 564 U. S., at

___ (KENNEDY, J., dissenting) (slip op., at 1). The Court

stated simply: “The accused’s right is to be confronted with

the analyst who made the certification.” Id., at ___ (slip

op., at 2).

Just as in Melendez-Diaz, the forensic report that was

“introduce[d]” in Bullcoming “contain[ed] a testimonial

certification, made in order to prove a fact at a criminal

trial.” 564 U. S., at ___–___ (slip op., at 7–8). The report

was signed by the nontestifying analyst who had authored

it, stating, “I certify that I followed the procedures set out

on the reverse of this report, and the statements in this

block are correct. The concentration of alcohol in this

sample is based on the grams of alcohol in one hundred

milliliters of blood.” App. in Bullcoming, O. T. 2010,

No. 09–10876, p. 62. Critically, the report was introduced

at trial for the substantive purpose of proving the truth

of the matter asserted by its out-of-court author—namely,

that the defendant had a blood-alcohol level of 0.21. This

was the central fact in question at the defendant’s trial,

and it was dispositive of his guilt.

In concurrence, JUSTICE SOTOMAYOR highlighted the im-

portance of the fact that the forensic report had been

admitted into evidence for the purpose of proving the truth

of the matter it asserted. She emphasized that “this [was]

not a case in which an expert witness was asked for his

independent opinion about underlying testimonial reports

that were not themselves admitted into evidence.” 564

U. S., at ___ (slip op., at 6) (opinion concurring in part)

(citing Fed. Rule Evid. 703). “We would face a different

question,” she observed, “if asked to determine the consti-

tutionality of allowing an expert witness to discuss others’

Cite as: 567 U. S. ____ (2012) 13

Opinion of ALITO, J.

testimonial statements if the testimonial statements were

not themselves admitted as evidence.” Id., at ___ (slip op.,

at 6).

We now confront that question.

B

It has long been accepted that an expert witness may

voice an opinion based on facts concerning the events at

issue in a particular case even if the expert lacks first-

hand knowledge of those facts.

At common law, courts developed two ways to deal with

this situation. An expert could rely on facts that had

already been established in the record. But because it was

not always possible to proceed in this manner, and be-

cause record evidence was often disputed, courts devel-

oped the alternative practice of allowing an expert to

testify in the form of a “hypothetical question.” Under this

approach, the expert would be asked to assume the truth

of certain factual predicates, and was then asked to offer

an opinion based on those assumptions. See 1 K. Broun,

McCormick on Evidence §14, p. 87 (6th ed. 2006); 1

J. Wigmore, Evidence §677, p. 1084 (2d ed. 1923) (“If the

witness is skilled enough, his opinion may be adequately

obtained upon hypothetical data alone; and it is immate-

rial whether he has ever seen the person, place or thing in

question” (citation omitted)). The truth of the premises

could then be established through independent evidence,

and the factfinder would regard the expert’s testimony to

be only as credible as the premises on which it was based.

An early example of this approach comes from the Eng-

lish case of Beckwith v. Sydebotham, 1 Camp. 116, 170

Eng. Rep. 897 (K. B. 1807), where a party sought to prove

the seaworthiness of a ship, the Earl of Wycombe, by

calling as witnesses “several eminent surveyors of ships

who had never seen the ‘Earl of Wycombe.’ ” Ibid. The

opposing party objected to the testimony because it relied

14 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

on facts that were not known to be true, but the judge

disagreed. Because the experts were “peculiarly ac-

quainted” with “a matter of skill or science,” the judge

said, the “jury might be assisted” by their hypothetical

opinion based on certain assumed facts. Id., at 117, 170 Eng.

Rep., at 897. The judge acknowledged the danger of the

jury’s being unduly prejudiced by wrongly assuming the

truth of the hypothetical facts, but the judge noted that

the experts could be asked on cross-examination what

their opinion of the ship’s seaworthiness would be if differ-

ent hypothetical facts were assumed. If the party that had

called the experts could not independently prove the truth

of the premises they posited, then the experts’ “opinion

might not go for much; but still it was admissible evi-

dence.” Ibid.

There is a long tradition of the use of hypothetical ques-

tions in American courts. In 1887, for example, this Court

indicated its approval of the following jury instruction:

“As to the questions, you must understand that they

are not evidence; they are mere statements to these

witnesses . . . and, upon the hypothesis or assumption

of these questions the witnesses are asked to give

their [opinion]. You must readily see that the value of

the answers to these questions depends largely, if not

wholly, upon the fact whether the statements made in

these questions are sustained by the proof. If the

statements in these questions are not supported by

the proof, then the answers to the questions are enti-

tled to no weight, because based upon false assump-

tions or statements of facts.” Forsyth v. Doolittle, 120

U. S. 73, 77 (internal quotation marks omitted).

Modern rules of evidence continue to permit experts to

express opinions based on facts about which they lack

personal knowledge, but these rules dispense with the

need for hypothetical questions. Under both the Illinois

Cite as: 567 U. S. ____ (2012) 15

Opinion of ALITO, J.

and the Federal Rules of Evidence, an expert may base an

opinion on facts that are “made known to the expert at or

before the hearing,” but such reliance does not constitute

admissible evidence of this underlying information. Ill.

Rule Evid. 703; Fed. Rule Evid. 703. Accordingly, in jury

trials, both Illinois and federal law generally bar an expert

from disclosing such inadmissible evidence.2 In bench

trials, however, both the Illinois and the Federal Rules

place no restriction on the revelation of such information

to the factfinder. When the judge sits as the trier of fact,

it is presumed that the judge will understand the limited

reason for the disclosure of the underlying inadmissible

information and will not rely on that information for any

improper purpose. As we have noted, “[i]n bench trials,

judges routinely hear inadmissible evidence that they are

presumed to ignore when making decisions.” Harris v.

Rivera, 454 U. S. 339, 346 (1981) (per curiam). There is a

“well-established presumption” that “the judge [has] ad-

hered to basic rules of procedure,” when the judge is acting

as a factfinder. Id., at 346–347 (emphasis added). See

also Gentile v. State Bar of Nev., 501 U. S. 1030, 1078

(1991) (Rehnquist, C. J., dissenting).

This feature of Illinois and federal law is important

because Crawford, while departing from prior Confronta-

tion Clause precedent in other respects, took pains to

reaffirm the proposition that the Confrontation Clause “does

not bar the use of testimonial statements for purposes

——————

2 But disclosure of these facts or data to the jury is permitted if the

value of disclosure “substantially outweighs [any] prejudicial effect,”

Fed. Rule Evid. 703, or “the probative value . . . outweighs the risk of

unfair prejudice.” People v. Pasch, 152 Ill. 2d 133, 223, 604 N. E. 2d

294, 333 (1992). When this disclosure occurs, “the underlying facts” are

revealed to the jury “for the limited purpose of explaining the basis for

[the expert’s] opinion” and not “for the truth of the matter asserted.”

Id., at 176, 604 N. E. 2d, at 311.

16 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

other than establishing the truth of the matter asserted.”

541 U. S., at 59–60, n. 9 (citing Tennessee v. Street,

471 U. S. 409). In Street, the defendant claimed that the

police had coerced him into adopting the confession of his

alleged accomplice. The prosecution sought to rebut this

claim by showing that the defendant’s confession differed

significantly from the accomplice’s. Although the accom-

plice’s confession was clearly a testimonial statement, the

Court held that the jurors could hear it as long as they

were instructed to consider that confession not for its

truth, but only for the “distinctive and limited purpose” of

comparing it to the defendant’s confession, to see whether

the two were identical. Id., at 417.

III

A

In order to assess petitioner’s Confrontation Clause

argument, it is helpful to inventory exactly what Lamba-

tos said on the stand about Cellmark. She testified to the

truth of the following matters: Cellmark was an accredited

lab, App. 49; the ISP occasionally sent forensic samples to

Cellmark for DNA testing, ibid.; according to shipping

manifests admitted into evidence, the ISP lab sent vaginal

swabs taken from the victim to Cellmark and later re-

ceived those swabs back from Cellmark, id., at 52–55; and,

finally, the Cellmark DNA profile matched a profile pro-

duced by the ISP lab from a sample of petitioner’s blood,

id., at 55–56. Lambatos had personal knowledge of all

of these matters, and therefore none of this testimony in-

fringed petitioner’s confrontation right.

Lambatos did not testify to the truth of any other matter

concerning Cellmark. She made no other reference to the

Cellmark report, which was not admitted into evidence

and was not seen by the trier of fact. Nor did she testify to

anything that was done at the Cellmark lab, and she did

not vouch for the quality of Cellmark’s work.

Cite as: 567 U. S. ____ (2012)

17

Opinion of ALITO, J.

B

The principal argument advanced to show a Confronta-

tion Clause violation concerns the phrase that Lambatos

used when she referred to the DNA profile that the ISP

lab received from Cellmark. This argument is developed

most fully in the dissenting opinion, and therefore we refer

to the dissent’s discussion of this issue.

In the view of the dissent, the following is the critical

portion of Lambatos’ testimony, with the particular words

that the dissent finds objectionable italicized:

“Q Was there a computer match generated

of the male DNA profile found in semen

from the vaginal swabs of [L.J.] to a male

DNA profile that had been identified as hav-

ing originated from Sandy Williams?

“A Yes, there was.” Post, at 7 (opinion of

KAGAN, J.) (quoting App. 56; emphasis

added).

According to the dissent, the italicized phrase violated

petitioner’s confrontation right because Lambatos lacked

personal knowledge that the profile produced by Cellmark

was based on the vaginal swabs taken from the victim,

L. J. As the dissent acknowledges, there would have been

“nothing wrong with Lambatos’s testifying that two DNA

profiles—the one shown in the Cellmark report and the

one derived from Williams’s blood—matched each other;

that was a straightforward application of Lambatos’s

expertise.” Post, at 12. Thus, if Lambatos’ testimony had

been slightly modified as follows, the dissent would see no

problem:

“Q Was there a computer match generated

of the male DNA profile produced by

18 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

Cellmark found in semen from the vaginal

swabs of [L.J.] to a male DNA profile that

had been identified as having originated

from Sandy Williams?

“A Yes, there was.”3

The defect in this argument is that under Illinois law

(like federal law) it is clear that the putatively offending

phrase in Lambatos’ testimony was not admissible for the

purpose of proving the truth of the matter asserted—i.e.,

that the matching DNA profile was “found in semen from

the vaginal swabs.” Rather, that fact was a mere premise

of the prosecutor’s question, and Lambatos simply as-

sumed that premise to be true when she gave her answer

indicating that there was a match between the two DNA

profiles. There is no reason to think that the trier of fact

took Lambatos’ answer as substantive evidence to estab-

lish where the DNA profiles came from.

The dissent’s argument would have force if petitioner

had elected to have a jury trial. In that event, there would

have been a danger of the jury’s taking Lambatos’ testi-

mony as proof that the Cellmark profile was derived from

the sample obtained from the victim’s vaginal swabs.

Absent an evaluation of the risk of juror confusion and

careful jury instructions, the testimony could not have

——————

3 The small difference between what Lambatos actually said on the

stand and the slightly revised version that the dissent would find un-

objectionable shows that, despite the dissent’s rhetoric, its narrow

argument would have little practical effect in future cases. Prosecutors

would be allowed to do exactly what the prosecution did in this case so

long as their testifying experts’ testimony was slightly modified along

the lines shown above. Following that course presumably would not

constitute a “prosecutorial dodge,” “subterfuge,” “indirection,” the “neat

trick” of “sneak[ing]” in evidence, or the countenancing of constitutional

violations with “a wink and a nod.” See post, at 3, 16, 17, 12 (opinion of

KAGAN, J.).

Cite as: 567 U. S. ____ (2012) 19

Opinion of ALITO, J.

gone to the jury.

This case, however, involves a bench trial and we must

assume that the trial judge understood that the portion of

Lambatos’ testimony to which the dissent objects was not

admissible to prove the truth of the matter asserted.4 The

dissent, on the other hand, reaches the truly remarkable

conclusion that the wording of Lambatos’ testimony con-

fused the trial judge. Were it not for that wording, the

argument goes, the judge might have found that the pros-

ecution failed to introduce sufficient admissible evidence

to show that the Cellmark profile was derived from the

sample taken from the victim, and the judge might have

disregarded the DNA evidence. This argument reflects a

profound lack of respect for the acumen of the trial judge.5

To begin, the dissent’s argument finds no support in the

trial record. After defense counsel objected to Lambatos’

testimony, the prosecutor made clear that she was asking

Lambatos only about “her own testing based on [DNA]

information” that she had received from Cellmark. App.

56. Recognizing that Lambatos’ testimony would carry

weight only if the underlying premises could be estab-

lished, the judge noted that “the issue is . . . what weight

do you give the test [performed by Lambatos], not do you

exclude it.” Id., at 94. This echoes the old statement in

Beckwith that an expert’s opinion based on disputed prem-

ises “might not go for much; but still it [is] admissible

evidence.” 1 Camp., at 117, 170 Eng. Rep., at 897. Both

——————

4 We do not suggest that the Confrontation Clause applies differently

depending on the identity of the factfinder. Cf. post, at 14–15 (opinion

of KAGAN, J.). Instead, our point is that the identity of the factfinder

makes a big difference in evaluating the likelihood that the factfinder

mistakenly based its decision on inadmissible evidence.

5 See post, at 14 (opinion of KAGAN, J.) (“I do not doubt that a judge

typically will do better than a jury in excluding such inadmissible

evidence from his decisionmaking process. Perhaps the judge did so

here” (emphasis added)).

20 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

the Illinois Appellate Court and the Illinois Supreme

Court viewed the record in this way, and we see no ground

for disagreement.6

Second, it is extraordinarily unlikely that any trial

judge would be confused in the way that the dissent posits.

That Lambatos was not competent to testify to the chain

of custody of the sample taken from the victim was a point

that any trial judge or attorney would immediately under-

stand. Lambatos, after all, had absolutely nothing to do

with the collection of the sample from the victim, its sub-

sequent handling or preservation by the police in Illinois,

or its shipment to and receipt by Cellmark. No trial judge

would take Lambatos’ testimony as furnishing “the miss-

ing link” in the State’s evidence regarding the identity of

the sample that Cellmark tested. See post, at 6 (opinion of

KAGAN, J.).

Third, the admissible evidence left little room for argu-

ment that the sample tested by Cellmark came from any

source other than the victim’s vaginal swabs.7 This is so

——————

6 The dissent finds evidence of the trial judge’s confusion in his

statement that petitioner is “ ‘the guy whose DNA, according to the

evidence from the experts, is in the semen recovered from the victim’s

vagina.’ ” Post, at 14 (emphasis added). The dissent interprets the

phrase “according to the evidence from the experts” as a reference to

what one expert, Lambatos, said about the origin of the sample that

Cellmark tested. In context, however, the judge’s statement is best

understood as attributing to Lambatos nothing more than the conclu-

sion that there was a match between the two DNA profiles that were

compared. The foundational facts, that one of the profiles came from

the defendant and that the other came from “ ‘the semen recovered from

the victim’s vagina,’ ” were established not by expert testimony but by

ordinary chain-of-custody evidence.

7 Our point is not that admissible evidence regarding the identity of

the sample that Cellmark tested excuses the admission of testimonial

hearsay on this matter. Compare post, at 5–6 (THOMAS, J., concurring

in judgment), with post, at 14 (KAGAN, J., dissenting). Rather, our point

is that, because there was substantial (albeit circumstantial) evidence

on this matter, there is no reason to infer that the trier of fact must

Cite as: 567 U. S. ____ (2012) 21

Opinion of ALITO, J.

because there is simply no plausible explanation for how

Cellmark could have produced a DNA profile that matched

Williams’ if Cellmark had tested any sample other than

the one taken from the victim. If any other items that

might have contained Williams’ DNA had been sent

to Cellmark or were otherwise in Cellmark’s possession,

there would have been a chance of a mix-up or of cross-

contamination. See District Attorney’s Office for Third

Judicial Dist. v. Osborne, 557 U. S. 52, 80 (2009) (ALITO,

J., concurring). But there is absolutely nothing to suggest

that Cellmark had any such items. Thus, the fact that the

Cellmark profile matched Williams—the very man whom

the victim identified in a lineup and at trial as her at-

tacker—was itself striking confirmation that the sample

that Cellmark tested was the sample taken from the victim’s

vaginal swabs. For these reasons, it is fanciful to suggest

that the trial judge took Lambatos’ testimony as providing

critical chain-of-custody evidence.

C

Other than the phrase that Lambatos used in referring

to the Cellmark profile, no specific passage in the trial

record has been identified as violating the Confrontation

Clause, but it is nevertheless suggested that the State

somehow introduced “the substance of Cellmark’s report

into evidence.” Post, at 8 (KAGAN, J., dissenting). The

main impetus for this argument appears to be the (errone-

ous) view that unless the substance of the report was

sneaked in, there would be insufficient evidence in the

record on two critical points: first, that the Cellmark

profile was based on the semen in the victim’s vaginal

swabs and, second, that Cellmark’s procedures were reli-

able. This argument is both legally irrelevant for present

purposes and factually incorrect.

——————

have taken Lambatos’ statement as providing “the missing link.”

22 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

As to legal relevance, the question before us is whether

petitioner’s Sixth Amendment confrontation right was

violated, not whether the State offered sufficient founda-

tional evidence to support the admission of Lambatos’

opinion about the DNA match. In order to prove these

underlying facts, the prosecution relied on circumstantial

evidence, and the Illinois courts found that this evidence

was sufficient to satisfy state-law requirements regarding

proof of foundational facts. See 385 Ill. App. 3d, at 366–

368, 895 N. E. 2d, at 967–968; 238 Ill. 2d, at 138, 939 N. E.

2d, at 275. We cannot review that interpretation and

application of Illinois law. Thus, even if the record did not

contain any evidence that could rationally support a find-

ing that Cellmark produced a scientifically reliable DNA

profile based on L. J.’s vaginal swab, that would not estab-

lish a Confrontation Clause violation. If there were no

proof that Cellmark produced an accurate profile based on

that sample, Lambatos’ testimony regarding the match

would be irrelevant, but the Confrontation Clause, as

interpreted in Crawford, does not bar the admission of

irrelevant evidence, only testimonial statements by de-

clarants who are not subject to cross-examination.8

It is not correct, however, that the trial record lacks

admissible evidence with respect to the source of the sam-

ple that Cellmark tested or the reliability of the Cell-

mark profile. As to the source of the sample, the State

offered conventional chain-of-custody evidence, namely,

the testimony of the physician who obtained the vaginal

swabs, the testimony of the police employees who handled

and kept custody of that evidence until it was sent to

——————

8 Applying the Due Process Clause, we have held that a federal court

may determine whether a rational trier of fact could have found the

existence of all the elements needed for conviction for a state offense.

Jackson v. Virginia, 443 U. S. 307, 314 (1979), but petitioner has not

raised a due process claim. And in any event, L. J.’s identification of

petitioner as her assailant would be sufficient to defeat any such claim.

Cite as: 567 U. S. ____ (2012) 23

Opinion of ALITO, J.

Cellmark, and the shipping manifests, which provided

evidence that the swabs were sent to Cellmark and then

returned to the ISP lab. In addition, as already discussed,

the match between the Cellmark profile and petitioner’s

profile was itself telling confirmation that the Cellmark

profile was deduced from the semen on the vaginal swabs.

This match also provided strong circumstantial evidence

regarding the reliability of Cellmark’s work. Assuming (for

the reasons discussed above) that the Cellmark profile

was based on the semen on the vaginal swabs, how could

shoddy or dishonest work in the Cellmark lab9 have re-

sulted in the production of a DNA profile that just so

happened to match petitioner’s? If the semen found on the

vaginal swabs was not petitioner’s and thus had an en-

tirely different DNA profile, how could sloppy work in the

Cellmark lab have transformed that entirely different

profile into one that matched petitioner’s? And without

access to any other sample of petitioner’s DNA (and recall

that petitioner was not even under suspicion at this time),

how could a dishonest lab technician have substituted pe-

titioner’s DNA profile? Under the circumstances of this

case, it was surely permissible for the trier of fact to infer

that the odds of any of this were exceedingly low.

This analysis reveals that much of the dissent’s argu-

ment rests on a very clear error. The dissent argues that

Lambatos’ testimony could be “true” only if the predicate

facts asserted in the Cellmark report were true, and there-

fore Lambatos’ reference to the report must have been

used for the purpose of proving the truth of those facts.

See post, at 10–11. But the truth of Lambatos’ testimony,

properly understood, was not dependent on the truth of

any predicate facts. Lambatos testified that two DNA

profiles matched. The correctness of this expert opinion,

which the defense was able to test on cross-examination,

——————

9 See post, at 18 (KAGAN, J., dissenting).

24 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

was not in any way dependent on the origin of the samples

from which the profiles were derived. Of course, Lamba-

tos’ opinion would have lacked probative value if the pros-

ecution had not introduced other evidence to establish the

provenance of the profiles, but that has nothing to do with

the truth of her testimony.

The dissent is similarly mistaken in its contention that

the Cellmark report “was offered for its truth because that

is all such ‘basis evidence’ can be offered for.” Post, at 13;

see also post, at 3 (THOMAS, J., concurring in judgment)

(“[S]tatements introduced to explain the basis of an expert’s

opinion are not introduced for a plausible nonhearsay

purpose”). This view is directly contrary to the current

version of Rule 703 of the Federal Rules of Evidence,

which this Court approved and sent to Congress in 2000.

Under that Rule, “basis evidence” that is not admissible

for its truth may be disclosed even in a jury trial under

appropriate circumstances. The purpose for allowing this

disclosure is that it may “assis[t] the jury to evaluate

the expert’s opinion.” Advisory Committee’s 2000 Notes on

Fed. Rule Evid. 703, 28 U. S. C. App., p. 361. The Rule

703 approach, which was controversial when adopted,10 is

based on the idea that the disclosure of basis evidence can

help the factfinder understand the expert’s thought pro-

cess and determine what weight to give to the expert’s

opinion. For example, if the factfinder were to suspect

that the expert relied on factual premises with no support

in the record, or that the expert drew an unwarranted

inference from the premises on which the expert relied,

then the probativeness or credibility of the expert’s opin-

ion would be seriously undermined. The purpose of dis-

closing the facts on which the expert relied is to allay

these fears—to show that the expert’s reasoning was not

illogical, and that the weight of the expert’s opinion does

——————

10 See Advisory Committee’s 2000 Notes on Rule 703, at 361.

Cite as: 567 U. S. ____ (2012) 25

Opinion of ALITO, J.

not depend on factual premises unsupported by other

evidence in the record—not to prove the truth of the un-

derlying facts.

Perhaps because it cannot seriously dispute the legit-

imate nonhearsay purpose of illuminating the expert’s

thought process, the dissent resorts to the last-ditch ar-

gument that, after all, it really does not matter whether

Lambatos’ statement regarding the source of the Cellmark

report was admitted for its truth. The dissent concedes

that “the trial judge might have ignored Lambatos’s

statement about the Cellmark report,” but nonetheless

maintains that “the admission of that statement violated

the Confrontation Clause even if the judge ultimately put

it aside.” Post, at 15, n. 2. But in a bench trial, it is not

necessary for the judge to stop and make a formal state-

ment on the record regarding the limited reason for which

the testimony is admitted. If the judge does not consider

the testimony for its truth, the effect is precisely the same.

Thus, if the trial judge in this case did not rely on the

statement in question for its truth, there is simply no way

around the proviso in Crawford that the Confrontation

Clause applies only to out-of-court statements that are

“use[d]” to “establis[h] the truth of the matter asserted.”

541 U. S., at 59–60, n. 9 (citing Street, 471 U. S. 409).

For all these reasons, we conclude that petitioner’s Sixth

Amendment confrontation right was not violated.

D

This conclusion is entirely consistent with Bullcoming

and Melendez-Diaz. In those cases, the forensic reports

were introduced into evidence, and there is no question that

this was done for the purpose of proving the truth of what

they asserted: in Bullcoming that the defendant’s blood

alcohol level exceeded the legal limit and in Melendez-

Diaz that the substance in question contained cocaine.

Nothing comparable happened here. In this case, the

26 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

Cellmark report was not introduced into evidence. An

expert witness referred to the report not to prove the truth

of the matter asserted in the report, i.e., that the report

contained an accurate profile of the perpetrator’s DNA,

but only to establish that the report contained a DNA

profile that matched the DNA profile deduced from peti-

tioner’s blood. Thus, just as in Street, the report was not to

be considered for its truth but only for the “distinctive and

limited purpose” of seeing whether it matched something

else. 471 U. S., at 417. The relevance of the match was

then established by independent circumstantial evidence

showing that the Cellmark report was based on a forensic

sample taken from the scene of the crime.

Our conclusion will not open the door for the kind of

abuses suggested by some of petitioner’s amici and the

dissent. See post, at 10–11; Brief for Richard D. Friedman

as Amicus Curiae 20–21. In the hypothetical situations

posited, an expert expresses an opinion based on factual

premises not supported by any admissible evidence, and

may also reveal the out-of-court statements on which the

expert relied.11 There are at least four safeguards to

——————

11 Both JUSTICE THOMAS and JUSTICE KAGAN quote statements in D.

Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence

§4.10.1, pp. 196–197 (2d ed. 2011) (hereinafter New Wigmore), that are

critical of the theory that an expert, without violating the Confronta-

tion Clause, may express an opinion that is based on testimonial

hearsay and may, in some circumstances, disclose that testimonial

hearsay to the trier of fact. The principal basis for this criticism seems

to be the fear that juries, even if given limiting instructions, will view

the disclosed hearsay as evidence of the truth of the matter asserted.

See id., at 196, n. 36 (referring reader to the more detailed discussion in

Mnookin, Expert Evidence and the Confrontation Clause After Craw-

ford v. Washington, 15 J. L. & Pol’y 791 (2007)); New Wigmore 197,

and n. 39 (citing jury cases); Mnookin, supra, at 802–804, 811–813.

This argument plainly has no application in a case like this one, in

which a judge sits as the trier of fact. In the 2012 Supplement of The

New Wigmore, the authors discuss the present case and criticize the

reasoning of the Illinois courts as follows:

Cite as: 567 U. S. ____ (2012) 27

Opinion of ALITO, J.

prevent such abuses. First, trial courts can screen out

experts who would act as mere conduits for hearsay by

strictly enforcing the requirement that experts display

some genuine “scientific, technical, or other specialized

knowledge [that] will help the trier of fact to understand

the evidence or to determine a fact in issue.” Fed. Rule

Evid. 702(a). Second, experts are generally precluded

from disclosing inadmissible evidence to a jury. See Fed.

Rule Evid. 703; People v. Pasch, 152 Ill. 2d 133, 175–176,

604 N. E. 2d 294, 310–311 (1992). Third, if such evidence

is disclosed, the trial judges may and, under most circum-

stances, must, instruct the jury that out-of-court state-

ments cannot be accepted for their truth, and that an

expert’s opinion is only as good as the independent evi-

dence that establishes its underlying premises. See Fed.

Rules Evid. 105, 703; People v. Scott, 148 Ill. 2d 479, 527–

528, 594 N. E. 2d 217, 236–237 (1992). And fourth, if the

prosecution cannot muster any independent admissible

evidence to prove the foundational facts that are essential

to the relevance of the expert’s testimony, then the ex-

pert’s testimony cannot be given any weight by the trier of

fact.12

——————

“The problem with [the not-for-the-truth-of-the-matter argument

accepted by the Illinois courts] is that Lambatos had to rely on the

truth of the statements in the Cellmark report to reach her own con-

clusion. The claim that evidence that the jury must credit in order to

credit the conclusion of the expert is introduced for something other

than its truth is sheer fiction.” New Wigmore §4.11.6, at 24 (2012

Supp.) (emphasis added).

This discussion is flawed. It overlooks the fact that there was no jury

in this case, and as we have explained, the trier of fact did not have to

rely on any testimonial hearsay in order to find that Lambatos’ testi-

mony about the DNA match was supported by adequate foundational

evidence and was thus probative.

12 Our discussion of the first ground for our decision cannot conclude

without commenting on the Kocak case, which dramatically appears at

the beginning of the dissent. In that case, a Cellmark lab analyst

28 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

IV

A

Even if the Cellmark report had been introduced for its

truth, we would nevertheless conclude that there was no

Confrontation Clause violation. The Confrontation Clause

refers to testimony by “witnesses against” an accused.

Both the noted evidence scholar James Henry Wigmore

and Justice Harlan interpreted the Clause in a strictly

literal sense as referring solely to persons who testify in

court, but we have not adopted this narrow view. It has

been said that “[t]he difficulty with the Wigmore-Harlan

view in its purest form is its tension with much of the

apparent history surrounding the evolution of the right of

confrontation at common law.” White v. Illinois, 502 U. S.

346, 360 (1992) (THOMAS, J., concurring). “[T]he principal

evil at which the Confrontation Clause was directed,” the

Court concluded in Crawford, “was the civil-law mode of

criminal procedure, and particularly its use of ex parte

examinations as evidence against the accused.” 541 U. S.,

at 50. “[I]n England, pretrial examinations of suspects

——————

realized while testifying at a pretrial hearing that there was an error in

the lab’s report and that the DNA profile attributed to the accused was

actually that of the victim. The lesson of this cautionary tale is nothing

more than the truism that it is possible for an apparently incriminating

DNA profile to be mistakenly attributed to an accused. But requiring

that the lab analyst or analysts who produced the DNA profile be called

as prosecution witnesses is neither sufficient nor necessary to prevent

such errors. Since samples may be mixed up or contaminated at many

points along the way from a crime scene to the lab, calling one or more

lab analysts will not necessarily catch all such mistakes. For example,

a mistake might be made by a clerical employee responsible for receiv-

ing shipments of samples and then providing them to the lab’s techni-

cians. What is needed is for the trier of fact to make sure that the

evidence, whether direct or circumstantial, rules out the possibility of

such mistakes at every step along the way. And in the usual course of

authentication, defense counsel will have access to sufficient infor-

mation to inquire into, question, or challenge the procedures used by a

laboratory if this seems to be a prudent and productive strategy.

Cite as: 567 U. S. ____ (2012) 29

Opinion of ALITO, J.

and witnesses by government officials ‘were sometimes

read in court in lieu of live testimony.’ ” Bryant, 562 U. S.,

at ___ (slip op., at 6) (quoting Crawford, supra, at 43). The

Court has thus interpreted the Confrontation Clause as

prohibiting modern-day practices that are tantamount to

the abuses that gave rise to the recognition of the confron-

tation right. But any further expansion would strain the

constitutional text.

The abuses that the Court has identified as prompting

the adoption of the Confrontation Clause shared the fol-

lowing two characteristics: (a) they involved out-of-court

statements having the primary purpose of accusing a

targeted individual of engaging in criminal conduct and

(b) they involved formalized statements such as affidavits,

depositions, prior testimony, or confessions. In all but

one of the post-Crawford cases13 in which a Confrontation

Clause violation has been found, both of these characteris-

tics were present. See Bullcoming, 564 U. S., at 308 (slip

op., at 3–4) (certified lab report having purpose of showing

that defendant’s blood-alcohol level exceeded legal limit);

Melendez-Diaz, 557 U. S., at 308 (certified lab report

having purpose of showing that substance connected to

defendant contained cocaine); Crawford, supra, at 38

(custodial statement made after Miranda warnings that

shifted blame from declarant to accused).14 The one excep-

tion occurred in Hammon v. Indiana, 547 U. S. 813, 829–

832 (2006), which was decided together with Davis v.

Washington, but in Hammon and every other post-

Crawford case in which the Court has found a violation of

——————

13 Experience might yet show that the holdings in those cases should

be reconsidered for the reasons, among others, expressed in the dis-

sents the decisions produced. Those decisions are not challenged in this

case and are to be deemed binding precedents, but they can and should

be distinguished on the facts here.

14 With respect to Crawford, see Davis, 547 U. S., at 840 (THOMAS, J.,

concurring in judgment in part and dissenting in part).

30 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

the confrontation right, the statement at issue had the

primary purpose of accusing a targeted individual.

B

In Hammon, the one case in which an informal state-

ment was held to violate the Confrontation Clause, we

considered statements elicited in the course of police in-

terrogation. We held that a statement does not fall

within the ambit of the Clause when it is made “under

circumstances objectively indicating that the primary

purpose of the interrogation is to enable police assistance

to meet an ongoing emergency.” 547 U. S., at 822. In

Bryant, another police-interrogation case, we explained

that a person who makes a statement to resolve an ongo-

ing emergency is not acting like a trial witness because

the declarant’s purpose is not to provide a solemn declara-

tion for use at trial, but to bring an end to an ongoing

threat. See 562 U. S., at ___, ___ (slip op., at 11, 14). We

noted that “the prospect of fabrication . . . is presumably

significantly diminished” when a statement is made under

such circumstances, id., at ___ (slip op., at 14) and that

reliability is a salient characteristic of a statement that

falls outside the reach of the Confrontation Clause, id., at

___–___ (slip op., at 14–15). We emphasized that if a

statement is not made for “the primary purpose of creating

an out-of-court substitute for trial testimony,” its admissi-

bility “is the concern of state and federal rules of evidence,

not the Confrontation Clause.” Id., at ___–___ (slip op., at

11–12).

In Melendez-Diaz and Bullcoming, the Court held that

the particular forensic reports at issue qualified as testi-

monial statements, but the Court did not hold that all

forensic reports fall into the same category. Introduction

of the reports in those cases ran afoul of the Confrontation

Clause because they were the equivalent of affidavits

made for the purpose of proving the guilt of a particular

Cite as: 567 U. S. ____ (2012) 31

Opinion of ALITO, J.

criminal defendant at trial. There was nothing resembling

an ongoing emergency, as the suspects in both cases had

already been captured, and the tests in question were

relatively simple and can generally be performed by a

single analyst. In addition, the technicians who prepared

the reports must have realized that their contents (which

reported an elevated blood-alcohol level and the presence

of an illegal drug) would be incriminating.

C

The Cellmark report is very different. It plainly was not

prepared for the primary purpose of accusing a targeted

individual. In identifying the primary purpose of an out-

of-court statement, we apply an objective test. Bryant, 562

U. S., at ___ (slip op., at 13). We look for the primary

purpose that a reasonable person would have ascribed to

the statement, taking into account all of the surrounding

circumstances. Ibid.

Here, the primary purpose of the Cellmark report,

viewed objectively, was not to accuse petitioner or to cre-

ate evidence for use at trial. When the ISP lab sent the

sample to Cellmark, its primary purpose was to catch a

dangerous rapist who was still at large, not to obtain

evidence for use against petitioner, who was neither in

custody nor under suspicion at that time. Similarly, no

one at Cellmark could have possibly known that the

profile that it produced would turn out to inculpate

petitioner—or for that matter, anyone else whose DNA

profile was in a law enforcement database. Under these

circumstances, there was no “prospect of fabrication” and

no incentive to produce anything other than a scientifi-

cally sound and reliable profile. Id., at ___ (slip op., at 14).

The situation in which the Cellmark technicians found

themselves was by no means unique. When lab techni-

cians are asked to work on the production of a DNA pro-

file, they often have no idea what the consequences of

32 WILLIAMS v. ILLINOIS

Opinion of ALITO, J.

their work will be. In some cases, a DNA profile may

provide powerful incriminating evidence against a person

who is identified either before or after the profile is com-

pleted. But in others, the primary effect of the profile is

to exonerate a suspect who has been charged or is under

investigation. The technicians who prepare a DNA profile

generally have no way of knowing whether it will turn out

to be incriminating or exonerating—or both.

It is also significant that in many labs, numerous tech-

nicians work on each DNA profile. See Brief for New York

County District Attorney’s Office et al. as Amici Curiae 6

(New York lab uses at least 12 technicians for each case);

People v. Johnson, 389 Ill. App. 3d 618, 627, 906 N. E. 2d

70, 79 (2009) (“[A]pproximately 10 Cellmark analysts were

involved in the laboratory work in this case”). When the

work of a lab is divided up in such a way, it is likely that

the sole purpose of each technician is simply to perform

his or her task in accordance with accepted procedures.

Finally, the knowledge that defects in a DNA profile

may often be detected from the profile itself provides a

further safeguard. In this case, for example, Lambatos

testified that she would have been able to tell from the

profile if the sample used by Cellmark had been degraded

prior to testing. As noted above, moreover, there is no real

chance that “sample contamination, sample switching,

mislabeling, [or] fraud” could have led Cellmark to pro-

duce a DNA profile that falsely matched petitioner. Post,

at 21 (KAGAN, J., dissenting). At the time of the testing,

petitioner had not yet been identified as a suspect, and

there is no suggestion that anyone at Cellmark had a

sample of his DNA to swap in by malice or mistake. And

given the complexity of the DNA molecule, it is inconceiv-

able that shoddy lab work would somehow produce a DNA

profile that just so happened to have the precise genetic

makeup of petitioner, who just so happened to be picked

out of a lineup by the victim. The prospect is beyond

Cite as: 567 U. S. ____ (2012) 33

Opinion of ALITO, J.

fanciful.

In short, the use at trial of a DNA report prepared by a

modern, accredited laboratory “bears little if any resem-

blance to the historical practices that the Confrontation

Clause aimed to eliminate.” Bryant, supra, at ___ (slip op.,

at 2) (THOMAS, J., concurring).

* * *

For the two independent reasons explained above, we

conclude that there was no Confrontation Clause violation

in this case. Accordingly, the judgment of the Supreme

Court of Illinois is

Affirmed.

Cite as: 567 U. S. ____ (2012) 1

BREYER, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–8505

_________________

SANDY WILLIAMS, PETITIONER v. ILLINOIS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

ILLINOIS

[June 18, 2012]

JUSTICE BREYER, concurring.

This case raises a question that I believe neither the

plurality nor the dissent answers adequately: How does

the Confrontation Clause apply to the panoply of crime

laboratory reports and underlying technical statements

written by (or otherwise made by) laboratory technicians?

In this context, what, if any, are the outer limits of the

“testimonial statements” rule set forth in Crawford v.

Washington, 541 U. S. 36 (2004)? Because I believe the

question difficult, important, and not squarely addressed

either today or in our earlier opinions, and because I

believe additional briefing would help us find a proper,

generally applicable answer, I would set this case for

reargument. In the absence of doing so, I adhere to the

dissenting views set forth in Melendez-Diaz v. Massachu-

setts, 557 U. S. 305 (2009), and Bullcoming v. New Mexico,

564 U. S. ___ (2011). I also join the plurality’s opinion.

I

A

This case is another in our series involving the inter-

section of the Confrontation Clause and expert testimony.

Before trial, the prosecution’s expert, Sandra Lambatos,

received a copy of a report prepared by Cellmark Diagnos-

tics Laboratory. That report reflected the fact that

Cellmark technicians had received material from a vaginal

2 WILLIAMS v. ILLINOIS

BREYER, J., concurring

swab taken from the crime victim, had identified semen in

that material, and had derived a profile of the male DNA

that the semen contained. Lambatos then entered that

profile into an Illinois State Police Crime Laboratory

computerized database, which contained, among many

other DNA profiles, a profile derived by the crime labora-

tory from Williams’ blood (taken at an earlier time). The

computer she was using showed that the two profiles

matched. Lambatos then confirmed the match.

Later, Lambatos testified at trial, where the prosecutor

asked her three relevant questions. First, the prosecutor

asked whether there was “a computer match generated of

the male DNA profile [derived by Cellmark] found in [the]

semen from the vaginal swabs . . . to [the] male DNA

profile [found in the database] that had been identified as

having originated from Sandy Williams”? App. 56. Since

the computer had shown such a match, Lambatos an-

swered affirmatively. Ibid.

Second, the prosecutor asked whether Lambatos had in-

dependently “compare[d the DNA profile that Cellmark

had derived from] the semen that had been identified . . .

from the vaginal swabs of [the victim] to the male DNA

profile [found in the database] that had been [derived] . . .

from the blood of Sandy Williams.” Ibid. Lambatos again

answered affirmatively. Ibid.

Third, the prosecutor asked whether, in Lambatos’ ex-

pert opinion, the DNA profile derived from the semen

identified in the vaginal swabs of the victim was “a match

to Sandy Williams.” Id., at 58. Lambatos again answered

affirmatively. Ibid.

The Confrontation Clause problem lies in the fact that

Lambatos did not have personal knowledge that the male

DNA profile that Cellmark said was derived from the

crime victim’s vaginal swab sample was in fact correctly

derived from that sample. And no Cellmark expert testi-

fied that it was true. Rather, she simply relied for her

Cite as: 567 U. S. ____ (2012) 3

BREYER, J., concurring

knowledge of the fact upon Cellmark’s report. And the

defendant Williams had no opportunity to cross-examine

the individual or individuals who produced that report.

In its first conclusion, the plurality explains why it finds

that admission of Lambatos’ testimony nonetheless did not

violate the Confrontation Clause. That Clause concerns

out-of-court statements admitted for their truth. Ante,

at 15–16. Lambatos’ testimony did not introduce the

Cellmark report (which other circumstantial evidence

supported) for its truth. Ante, at 16–21. Rather, Lam-

batos used the Cellmark report only to indicate the under-

lying factual information upon which she based her

independent expert opinion. Ibid. Under well-established

principles of evidence, experts may rely on otherwise

inadmissible out-of-court statements as a basis for forming

an expert opinion if they are of a kind that experts in the

field normally rely upon. See Fed. Rule Evid. 703; Ill.

Rule Evid. 703. Nor need the prosecution enter those out-

of-court statements into evidence for their truth. That,

the Illinois courts held, is just what took place here. Ante,

at 9–10.

The dissent would abandon this well-established rule.

It would not permit Lambatos to offer an expert opinion

in reliance on the Cellmark report unless the prosecution

also produces one or more experts who wrote or otherwise

produced the report. I am willing to accept the dissent’s

characterization of the present rule as artificial, see post,

at 15–17 (opinion of KAGAN, J.), but I am not certain that

the dissent has produced a workable alternative, see

Bullcoming, supra, at ___ (KENNEDY, J., dissenting) (slip

op., at 7) (expressing similar view).

Once one abandons the traditional rule, there would

seem often to be no logical stopping place between requir-

ing the prosecution to call as a witness one of the labora-

tory experts who worked on the matter and requiring the

prosecution to call all of the laboratory experts who did so.

4 WILLIAMS v. ILLINOIS

BREYER, J., concurring

Experts—especially laboratory experts—regularly rely on

the technical statements and results of other experts to

form their own opinions. The reality of the matter is that

the introduction of a laboratory report involves layer upon

layer of technical statements (express or implied) made by

one expert and relied upon by another. Hence my general

question: How does the Confrontation Clause apply to

crime laboratory reports and underlying technical state-

ments made by laboratory technicians?

B

The general question is not easy to answer. The Cali-

fornia case described at the outset of the dissenting opin-

ion helps to illustrate the difficulty. In that example,

Cellmark, the very laboratory involved in this case, tested

a DNA sample taken from the crime scene. A laboratory

analyst, relying upon a report the laboratory had prepared,

initially stated (at a pretrial hearing about admissibil-

ity) that the laboratory had found that the crime-scene

DNA sample matched a sample of the defendant’s DNA.

But during the hearing and after reviewing the labor-

atory’s notes, the laboratory analyst realized that the

written report was mistaken. In fact, the testing showed

only that the crime-scene DNA matched a sample of the

victim’s DNA, not the defendant’s DNA. At some point

during the writing of the report, someone, perhaps the

testifying analyst herself, must have misread the proper

original sample labeling. Upon discovering the error, the

analyst corrected her testimony.

The example is useful, not simply because as adapted

it might show the importance of cross-examination (an

importance no one doubts), but also because it can reveal

the nature of the more general question before us. When

the laboratory in the example received the DNA samples,

it labeled them properly. The laboratory’s final report

mixed up the labels. Any one of many different techni-

Cite as: 567 U. S. ____ (2012) 5

BREYER, J., concurring

cians could be responsible for an error like that. And the

testifying analyst might not have reviewed the underlying

notes and caught the error during direct examination (or

for that matter, during cross-examination).

Adapting the example slightly, assume that the admis-

sibility of the initial laboratory report into trial had been

directly at issue. Who should the prosecution have had to

call to testify? Only the analyst who signed the report

noting the match? What if the analyst who made the

match knew nothing about either the laboratory’s underly-

ing procedures or the specific tests run in the particular

case? Should the prosecution then have had to call all

potentially involved laboratory technicians to testify? Six

to twelve or more technicians could have been involved.

(See Appendix, infra, which lists typically relevant labora-

tory procedures.) Some or all of the words spoken or

written by each technician out of court might well have

constituted relevant statements offered for their truth and

reasonably relied on by a supervisor or analyst writing

the laboratory report. Indeed, petitioner’s amici argue

that the technicians at each stage of the process should

be subject to cross-examination. See Brief for Innocence

Network as Amicus Curiae 13–23 (hereinafter Innocence

Network Brief).

And as is true of many hearsay statements that fall

within any of the 20 or more hearsay exceptions, cross-

examination could sometimes significantly help to elicit

the truth. See Fed. Rule Evid. 803 (listing 24 hearsay

exceptions). The Confrontation Clause as interpreted in

Crawford recognizes, as a limitation upon a pure “testi-

monial statement” requirement, circumstances where the

defendant had an adequate “prior opportunity to cross-

examine.” 541 U. S., at 59. To what extent might the

“testimonial statements” requirement embody one or more

(or modified versions) of these traditional hearsay excep-

tions as well?

6 WILLIAMS v. ILLINOIS

BREYER, J., concurring

Lower courts and treatise writers have recognized the

problem. And they have come up with a variety of solu-

tions. The New Wigmore, for example, lists several non-

exclusive approaches to when testifying experts may rely

on testing results or reports by nontestifying experts (i.e.,

DNA technicians or analysts), including: (1) “the dominant

approach,” which is simply to determine the need to testify

by looking “the quality of the nontestifying expert’s report,

the testifying expert’s involvement in the process, and the

consequent ability of the testifying expert to use inde-

pendent judgment and interpretive skill”; (2) permitting “a

substitute expert to testify about forensic science results

only when the first expert is unavailable” (irrespective of

the lack of opportunity to cross-examine the first expert,

cf. Crawford, supra, at 59); (3) permitting “a substitute

expert” to testify if “the original test was documented in a

thorough way that permits the substitute expert to evalu-

ate, assess, and interpret it”; (4) permitting a DNA analyst

to introduce DNA test results at trial without having

“personally perform[ed] every specific aspect of each DNA

test in question, provided the analyst was present during

the critical stages of the test, is familiar with the process

and the laboratory protocol involved, reviews the results

in proximity to the test, and either initials or signs the

final report outlining the results”; (5) permitting the in-

troduction of a crime laboratory DNA report without the

testimony of a technician where the “testing in its pre-

liminary stages” only “requires the technician simply to

perform largely mechanical or ministerial tasks . . . absent

some reason to believe there was error or falsification”;

and (6) permitting introduction of the report without

requiring the technicians to testify where there is a show-

ing of “genuine unavailability.” See D. Kaye, D. Bern-

stein, & J. Mnookin, The New Wigmore: Expert Evidence,

§§4.10.2, 4.10.3, pp. 202, 204, 206 (2d ed. 2010) (internal

quotation marks and footnote omitted); id., §4.11.6, at 24

Cite as: 567 U. S. ____ (2012) 7

BREYER, J., concurring

(Supp. 2012).

Some of these approaches seem more readily compatible

with Crawford than others. Some seem more easily con-

sidered by a rules committee (or by state courts) than by

this Court. Nonetheless, all assume some kind of Craw-

ford boundary—some kind of limitation upon the scope of

its application—though they reflect different views as to

just how and when that might be done.

Answering the underlying general question just dis-

cussed, and doing so soon, is important. Trial judges in

both federal and state courts apply and interpret hearsay

rules as part of their daily trial work. The trial of criminal

cases makes up a large portion of that work. And labora-

tory reports frequently constitute a portion of the evidence

in ordinary criminal trials. Obviously, judges, prosecu-

tors, and defense lawyers have to know, in as definitive a

form as possible, what the Constitution requires so that

they can try their cases accordingly.

The several different opinions filed today embody sev-

eral serious, but different, approaches to the difficult gen-

eral question. Yet none fully deals with the underlying

question as to how, after Crawford, Confrontation Clause

“testimonial statement” requirements apply to crime lab-

oratory reports. Nor can I find a general answer in

Melendez-Diaz or Bullcoming. While, as a matter of pure

logic, one might use those cases to answer a narrowed

version of the question presented here, see post, at 7–8

(KAGAN, J., dissenting), those cases do not fully con-

sider the broader evidentiary problem presented. I conse-

quently find the dissent’s response, “Been there, done

that,” unsatisfactory. See post, at 21.

Under these circumstances, I would have this case re-

argued. I would request the parties and amici to focus

specifically upon the broader “limits” question. And I

would permit them to discuss, not only the possible impli-

cations of our earlier post-Crawford opinions, but also any

8 WILLIAMS v. ILLINOIS

BREYER, J., concurring

necessary modifications of statements made in the opin-

ions of those earlier cases.

II

In the absence of reargument, I adhere to the dissenting

view set forth in Melendez-Diaz and Bullcoming, under

which the Cellmark report would not be considered “tes-

timonial” and barred by the Confrontation Clause. See

also ante, at 28–33 (setting forth similar conclusion). That

view understands the Confrontation Clause as interpreted

in Crawford to bar the admission of “[t]estimonial” state-

ments made out of court unless the declarant is unavail-

able and the defendant had a prior opportunity to cross-

examine. 541 U. S., at 59 (emphasis added). It also

understands the word “testimonial” as having outer limits

and Crawford as describing a constitutional heartland.

And that view would leave the States with constitutional

leeway to maintain traditional expert testimony rules as

well as hearsay exceptions where there are strong reasons

for doing so and Crawford’s basic rationale does not apply.

In particular, the States could create an exception that

presumptively would allow introduction of DNA reports

from accredited crime laboratories. The defendant would

remain free to call laboratory technicians as witnesses.

Were there significant reason to question a laboratory’s

technical competence or its neutrality, the presumptive

exception would disappear, thereby requiring the prosecu-

tion to produce any relevant technical witnesses. Such

an exception would lie outside Crawford’s constitutional

limits.

Consider the report before us. Cellmark’s DNA report

embodies technical or professional data, observations, and

judgments; the employees who contributed to the report’s

findings were professional analysts working on technical

matters at a certified laboratory; and the employees oper-

ated behind a veil of ignorance that likely prevented them

Cite as: 567 U. S. ____ (2012) 9

BREYER, J., concurring

from knowing the identity of the defendant in this case.

Statements of this kind fall within a hearsay exception

that has constituted an important part of the law of evi-

dence for decades. See Fed. Rule Evid. 803(6) (“Records of

Regularly Conducted Activity”); 2 J. Wigmore, Evidence

§§1517–1533, pp. 1878–1899 (1904) (“Regular Entries”).

And for somewhat similar reasons, I believe that such

statements also presumptively fall outside the category of

“testimonial” statements that the Confrontation Clause

makes inadmissible.

As the plurality points out, ante, at 28–33, the introduc-

tion of statements of this kind does not risk creating

the “principal evil at which the Confrontation Clause was

directed.” Crawford, 541 U. S., at 50. That evil consists of

the pre-Constitution practice of using “ex parte examina-

tions as evidence against the accused.” Ibid. Sir Walter

Raleigh’s case illustrates the point. State authorities

questioned Lord Cobham, the key witness against Raleigh,

outside his presence. They then used those testimonial

statements in court against Raleigh. And when Raleigh

asked to face and to challenge his accuser, he was denied

that opportunity. See id., at 44.

The Confrontation Clause prohibits the use of this kind

of evidence because allowing it would deprive a defendant

of the ability to cross-examine the witness. Id., at 61–62;

Mattox v. United States, 156 U. S. 237, 242–243 (1895).

That deprivation would prevent a defendant from con-

fronting the witness. And it would thereby prevent a

defendant from probing the witness’ perception, memory,

narration, and sincerity. See, e.g., 2 K. Broun et al.,

McCormick on Evidence §245, p. 125 (6th ed. 2006);

E. Morgan, Some Problems of Proof Under the Anglo-

American System of Litigation 119–127 (1956); 30 C.

Wright & K. Graham, Federal Practice and Procedure

§6324, pp. 44–49 (1997); see also M. Hale, History of the

Common Law of England 258 (1713) (explaining virtues of

10 WILLIAMS v. ILLINOIS

BREYER, J., concurring

confronting witness); 3 W. Blackstone, Commentaries on

the Laws of England 373 (1768) (same). But the need for

cross-examination is considerably diminished when the

out-of-court statement was made by an accredited labora-

tory employee operating at a remove from the investiga-

tion in the ordinary course of professional work.

For one thing, as the hearsay exception itself reflects,

alternative features of such situations help to guarantee

its accuracy. An accredited laboratory must satisfy well-

established professional guidelines that seek to ensure the

scientific reliability of the laboratory’s results. App. 59–

60, 74, 86–87; see Brief for National District Attorneys

Assn. et al. as Amici Curiae 25, n. 5 (hereinafter NDAA

Brief) (noting that the standards date back 30 years);

Giannelli, Regulating Crime Laboratories: The Impact of

DNA Evidence, 15 J. L. & Pol’y 59, 72–76 (2007). For

example, forensic DNA testing laboratories permitted to

access the FBI’s Combined DNA Index System must

adhere to standards governing, among other things, the

organization and management of the laboratory; educa-

tion, training, and experience requirements for laboratory

personnel; the laboratory’s physical facilities and security

measures; control of physical evidence; validation of test-

ing methodologies; procedures for analyzing samples,

including the reagents and controls that are used in the

testing process; equipment calibration and maintenance;

documentation of the process used to test each sample

handled by the laboratory; technical and administrative

review of every case file; proficiency testing of laboratory;

personnel; corrective action that addresses any discrepan-

cies in proficiency tests and casework analysis; internal

and external audits of the laboratory; environmental

health and safety; and outsourcing of testing to vendor

laboratories. See Brief for New York County District

Attorney’s Office et al. as Amici Curiae 4, n. 4 (hereinafter

NY County DAO Brief); see also App. to NY County DAO

Cite as: 567 U. S. ____ (2012) 11

BREYER, J., concurring

Brief A22–A49.

These standards are not foolproof. Nor are they always

properly applied. It is not difficult to find instances in

which laboratory procedures have been abused. See, e.g.,

Innocence Network Brief 6–11; App. to Brief for Public

Defender Service for the District of Columbia et al. as

Amici Curiae 1a–12a; cf. Giannelli, The Abuse of Scientific

Evidence in Criminal Cases: The Need for Independent

Crime Laboratories, 4 Va. J. Soc. Pol’y & L. 439 (1997).

Moreover, DNA testing itself has exonerated some defend-

ants who previously had been convicted in part upon the

basis of testimony by laboratory experts. See Melendez-

Diaz v. Massachusetts, 557 U. S., at 319 (citing Garrett &

Neufeld, Invalid Forensic Science Testimony and Wrong-

ful Convictions, 95 Va. L. Rev. 1 (2009)).

But if accreditation did not prevent admission of faulty

evidence in some of those cases, neither did cross-

examination. In the wrongful-conviction cases to which

this Court has previously referred, the forensic experts all

testified in court and were available for cross-examination.

Sklansky, Hearsay’s Last Hurrah, 2009 S. Ct. Rev. 1, 72–

73 (cited study “did not identify any cases in which hear-

say from forensic analysts contributed to the conviction of

innocent defendants”); see Garrett & Neufeld, supra, at

10–12, 84, 89 (noting that cross-examination was rarely

effective); see also Murphy, The New Forensics: Criminal

Justice, False Certainty, and the Second Generation of

Scientific Evidence, 95 Cal. L. Rev. 721, 785–786 (2007)

(suggesting need for greater reliance upon accreditation

and oversight of accredited laboratories); Sklansky, supra,

at 74 (same). Similarly, the role of cross-examination is

ambiguous in the laboratory example that the dissent

describes. See post, at 1–2. (Apparently, the report’s error

came to light and was corrected after cross-examination

had concluded, see Thompson, Taroni, & Aitken, Author’s

Response, 49 J. Forensic Sci. 1202 (2003), and in any

12 WILLIAMS v. ILLINOIS

BREYER, J., concurring

event all parties had received the correctly labeled under-

lying laboratory data, see Clarke, Commentary, id., at

1201).

For another thing, the fact that the laboratory testing

takes place behind a veil of ignorance makes it unlikely

that a particular researcher has a defendant-related mo-

tive to behave dishonestly, say, to misrepresent a step in

an analysis or otherwise to misreport testing results. Cf.

Michigan v. Bryant, 562 U. S. ___, ___ (2011) (slip op., at

14) (discussing the “prospect of fabrication” as a factor in

whether the Confrontation Clause requires statements

“to be subject to the crucible of cross-examination”). The

laboratory here, for example, did not know whether its

test results might help to incriminate a particular defend-

ant. Ante, at 32–33; cf. Melendez-Diaz, supra, at 310–311;

Bullcoming, 564 U. S., at ___ (slip op., at 14).

Further, the statements at issue, like those of many

laboratory analysts, do not easily fit within the linguistic

scope of the term “testimonial statement” as we have used

that term in our earlier cases. As the plurality notes, in

every post-Crawford case in which the Court has found a

Confrontation Clause violation, the statement at issue had

the primary purpose of accusing a targeted individual.

Ante, at 29–31; see, e.g., Davis v. Washington, 547 U. S.

813, 822 (2006) (“primary purpose . . . is to establish or

prove past events potentially relevant to later criminal

prosecution”); Bryant, supra, at ___–___ (slip op., at 11–12)

(“primary purpose of creating an out-of-court substitute

for trial testimony”). The declarant was essentially an

adverse witness making an accusatory, testimonial state-

ment—implicating the core concerns of the Lord Cobham-

type affidavits. But here the DNA report sought, not to

accuse petitioner, but instead to generate objectively a

profile of a then-unknown suspect’s DNA from the semen

he left in committing the crime. See ante, at 31–33.

Finally, to bar admission of the out-of-court records at

Cite as: 567 U. S. ____ (2012) 13

BREYER, J., concurring

issue here could undermine, not fortify, the accuracy of

factfinding at a criminal trial. Such a precedent could

bar the admission of other reliable case-specific technical

information such as, say, autopsy reports. Autopsies, like

the DNA report in this case, are often conducted when it is

not yet clear whether there is a particular suspect or

whether the facts found in the autopsy will ultimately

prove relevant in a criminal trial. Autopsies are typically

conducted soon after death. And when, say, a victim’s

body has decomposed, repetition of the autopsy may not be

possible. What is to happen if the medical examiner dies

before trial? E.g., State v. Lackey, 280 Kan. 190, 195–196,

120 P. 3d 332, 341 (2005); see also People v. Geier, 41 Cal.

4th 555, 601–602, 161 P. 3d 104, 136–137 (2007). Is the

Confrontation Clause “ ‘effectively’ ” to function “ ‘as a

statute of limitations for murder’ ”? Melendez-Diaz, supra,

at 335 (KENNEDY, J., dissenting) (quoting Comment, To-

ward a Definition of “Testimonial”: How Autopsy Reports

Do Not Embody the Qualities of a Testimonial Statement,

96 Cal. L. Rev. 1093, 1115 (2008)).

In general, such a holding could also increase the risk of

convicting the innocent. The New York County District

Attorney’s Office and the New York City Office of the

Chief Medical Examiner tell us that the additional cost

and complexity involved in requiring live testimony from

perhaps dozens of ordinary laboratory technicians who

participate in the preparation of a DNA profile may well

force a laboratory “to reduce the amount of DNA testing it

conducts, and force prosecutors to forgo forensic DNA

analysis in cases where it might be highly probative. In

the absence of DNA testing, defendants might well be

prosecuted solely on the basis of eyewitness testimony, the

reliability of which is often questioned.” NY County DAO

Brief 10 (citing United States v. Wade, 388 U. S. 218, 229

(1967)); see also NDAA Brief 26 (such a holding “will also

impact the innocent who may wait to be cleared from

14 WILLIAMS v. ILLINOIS

BREYER, J., concurring

suspicion or exonerated from mistaken conviction”). I find

this plausible. But cf. Innocence Network Brief 3. An

interpretation of the Clause that risks greater prosecution

reliance upon less reliable evidence cannot be sound. Cf.

Maryland v. Craig, 497 U. S. 836, 845 (1990) (“The central

concern of the Confrontation Clause is to ensure the reli-

ability of the evidence against a criminal defendant”).

Consequently, I would consider reports such as the DNA

report before us presumptively to lie outside the perimeter

of the Clause as established by the Court’s precedents.

Such a holding leaves the defendant free to call the labora-

tory employee as a witness if the employee is available.

Moreover, should the defendant provide good reason to

doubt the laboratory’s competence or the validity of its

accreditation, then the alternative safeguard of reliability

would no longer exist and the Constitution would entitle

defendant to Confrontation Clause protection. Similarly,

should the defendant demonstrate the existence of a mo-

tive to falsify, then the alternative safeguard of honesty

would no longer exist and the Constitution would entitle

the defendant to Confrontation Clause protection. Cf. 2

Wigmore, Evidence §1527, at 1892 (in respect to the busi-

ness records exception, “there must have been no motive

to misrepresent”). Thus, the defendant would remain free

to show the absence or inadequacy of the alternative

reliability/honesty safeguards, thereby rebutting the pre-

sumption and making the Confrontation Clause applicable.

No one has suggested any such problem in respect to

the Cellmark Report at issue here.

Because the plurality’s opinion is basically consistent

with the views set forth here, I join that opinion in full.

Cite as: 567 U. S. ____ (2012) 15

BREYER, J., concurring

Appendix to opinion of BREYER, J.

APPENDIX

This appendix outlines the way that a typical modern fo-

rensic laboratory conducts DNA analysis. See NY County

DAO Brief 7–8; NDAA Brief 22–23; Innocence Network

Brief 13–23; see also Dept. of Justice, Office of the Inspec-

tor General, The FBI DNA Laboratory: A Review of Proto-

col and Practice Vulnerabilities 6–14 (May 2004), online at

http://www.justice.gov/oig/special/0405/final.pdf (as visited

June 14, 2012, and available in Clerk of Court’s case file).

The DNA analysis takes place in three parts, through

three different sets of laboratory experts: (1) a DNA pro-

file is derived from the suspect’s DNA sample, (2) a DNA

profile is derived from the crime-scene DNA sample, and

(3) an analyst compares the two profiles and makes a

conclusion.

As many as six technicians may be involved in deriving

the profile from the suspect’s sample; as many as six more

technicians may be involved in deriving the profile from

the crime-scene sample; and an additional expert may

then be required for the comparative analysis, for a total

of about a dozen different laboratory experts. Each expert

may make technical statements (express or implied) dur-

ing the DNA analysis process that are in turn relied upon

by other experts. The amici dispute how many of these

experts the Confrontation Clause requires to be subject to

cross-examination. Compare Innocence Network Brief 13–

23 with NY County DAO Brief 7–8 and NDAA Brief 22–

23. In charting the three-step process, the appendix first

summarizes the laboratory procedures used to derive a

DNA profile and then illustrates potential statements that

technicians may make to explain their analysis.

16 WILLIAMS v. ILLINOIS

BREYER, J., concurring

Appendix to opinion of BREYER, J.

A. Profile of Suspect’s Sample (Summary of Lab Process)

1. Technician #1: 2. Technician #2:

Evidence Examination Extraction

Forensics lab receives Tech #2 extracts DNA

crime-scene evidence. from cuttings or swab-

Tech #1 examines the bings, i.e., adds chemi-

evidence for biological cal reagents to the

fluids/materials and tests sample that break open

whether the results reveal the cells and free up the

the presence of a biological DNA so that it is acces-

sample. If present, Tech sible for testing.

#1 takes cuttings or

swabbings from evidence

for DNA extraction.

3. Technician #3:

Quantification

4. Technician #4: Tech #3 measures the

Amplification amount of DNA that is

Tech #4 amplifies (copies) present in the sample to

the extracted DNA using ensure that there is

polymerase chain reaction enough DNA for testing.

(PCR), i.e., uses a highly

automated process to tar-

get, tag, and copy specific 6. Technicians

locations (loci), raising #5 and #6: Report

them to a detectable level. Techs #5 and #6 use

software to determine

allele calls (i.e.,

length) and produce a

5. Technicians #5 and #6: report. The software

Electrophoresis measures the length

of the DNA fragments

produced by electro-

phoresis, determines

the alleles that corre-

spond to the frag-

ments, and compiles a

DNA profile for the

sample. The Techs

record what the allele

values are at each loci

analyzed, which, once

compiled, constitute a

DNA profile.

Cite as: 567 U. S. ____ (2012)

17

BREYER, J., concurring

Appendix to opinion of BREYER, J.

B. Profile of Crime-Scene Sample (Examples of Statements)

7. Technician #7: 8. Technician #8:

Evidence Examination Extraction

“The crime-scene evidence “I used the proper

was submitted in a proper- procedures and added

ly sealed packaged, and I the proper chemical

unpackaged it using the reagents to the sample

proper precautions to to break open the cells

ensure contamination did to free up the DNA so

not occur. Using the that it became accessi-

proper tests, I determined ble for further testing. I

that DNA suitable for followed the proper

testing was present in the precautions to ensure

evidence. I used the proper contamination did not

procedures to take cuttings occur. The procedures I

or swabbings from the followed are generally

evidence and to preserve accepted in the scien-

them for further testing. tific community.”

The procedures I followed

are generally accepted in

the scientific community.”

9. Technician #9:

Quantification

10. Technician #10: “I conducted a proper

Amplification PCR process, placing

“Using the proper proce- the sample in the prop-

dures, I used the proper er equipment, running

chemicals to measure the the proper number of

amount of DNA in the cycles, and using the

sample accurately and to proper chemical rea-

normalize the sample to the gents to trigger the

proper concentration. The reactions that copy the

procedures I followed are DNA. I followed the

generally accepted in the proper precautions to

scientific community.” guard against contami-

nation. The procedures

I followed are generally

accepted in the scientific

(Continued)

community.”

18 WILLIAMS v. ILLINOIS

BREYER, J., concurring

Appendix to opinion of BREYER, J.

(Continued)

12. Technicians

Electrophoresis #11 and #12: Report

“We conducted a proper “Using the proper

electrophoresis, using the computer software, we

proper procedures to place properly transcribed

the DNA in the properly the data produced by

calibrated equipment run in the electropherogram

the proper conditions. We into a report. We

followed the proper precau- applied the proper

tions to avoid cross-sample criteria to review the

contamination. The proce- computer determina-

dures we followed used are tions of what the allele

generally accepted in the values are at each of

scientific community.” the chromosomal

locations analyzed.

We properly docu-

mented those allele

values to produce the

DNA profile. The

procedures we fol-

lowed are generally

accepted in the scien-

tific community.”

C. Comparison Between the Two DNA Profiles

13. Analyst

Analyst (who eventually testifies in court) compares the two

electropherograms and reports, i.e., compares the elec-

tropherograms and profiles from the crime-scene DNA to the

defendant’s DNA. Analyst then prepares her own report

setting forth her conclusions about the DNA match.

Cite as: 567 U. S. ____ (2012) 1

THOMAS, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–8505

_________________

SANDY WILLIAMS, PETITIONER v. ILLINOIS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

ILLINOIS

[June 18, 2012]

JUSTICE THOMAS, concurring in the judgment.

I agree with the plurality that the disclosure of

Cellmark’s out-of-court statements through the expert

testimony of Sandra Lambatos did not violate the Con-

frontation Clause. I reach this conclusion, however, solely

because Cellmark’s statements lacked the requisite “for-

mality and solemnity” to be considered “ ‘testimonial’ ” for

purposes of the Confrontation Clause. See Michigan v.

Bryant, 562 U. S. ___, ___ (2011) (THOMAS, J., concurring

in judgment) (slip op., at 1). As I explain below, I share

the dissent’s view of the plurality’s flawed analysis.

I

The threshold question in this case is whether Cell-

mark’s statements were hearsay at all. As the Court

has explained, “[t]he [Confrontation] Clause . . . does not

bar the use of testimonial statements for purposes other

than establishing the truth of the matter asserted.” See

Crawford v. Washington, 541 U. S. 36, 60, n. 9 (2004)

(citing Tennessee v. Street, 471 U. S. 409, 414 (1985)).

Here, the State of Illinois contends that Cellmark’s state-

ments—that it successfully derived a male DNA profile

and that the profile came from L. J.’s swabs—were intro-

duced only to show the basis of Lambatos’ opinion, and not

for their truth. In my view, however, there was no plau-

sible reason for the introduction of Cellmark’s statements

2 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

other than to establish their truth.

A

Illinois Rule of Evidence 703 (2011) and its federal

counterpart permit an expert to base his opinion on facts

about which he lacks personal knowledge and to disclose

those facts to the trier of fact. Relying on these Rules, the

State contends that the facts on which an expert’s opinion

relies are not to be considered for their truth, but only to

explain the basis of his opinion. See People v. Pasch, 152

Ill. 2d 133, 176, 604 N. E. 2d 294, 311 (1992) (“By allowing

an expert to reveal the information for this purpose alone,

it will undoubtedly aid the jury in assessing the value of

his opinion”); see also Advisory Committee’s Notes on Fed.

Rule Evid. 703, 28 U. S. C. App., p. 361 (stating that ex-

pert basis testimony is admissible “only for the purpose

of assisting the jury in evaluating an expert’s opinion”).

Accordingly, in the State’s view, the disclosure of expert

“basis testimony” does not implicate the Confrontation

Clause.

I do not think that rules of evidence should so easily

trump a defendant’s confrontation right. To be sure, we

should not “lightly swee[p] away an accepted rule” of

federal or state evidence law, ante, at 2 (internal quotation

marks omitted), when applying the Confrontation Clause.

“Rules of limited admissibility are commonplace in evi-

dence law.” Mnookin, Expert Evidence and the Confronta-

tion Clause after Crawford v. Washington, 15 J. L. & Pol’y

791, 812 (2007). And, we often presume that courts and

juries follow limiting instructions. See, e.g., Street, supra,

at 415, n. 6. But we have recognized that concepts central

to the application of the Confrontation Clause are ulti-

mately matters of federal constitutional law that are not

dictated by state or federal evidentiary rules. See Barber

v. Page, 390 U. S. 719, 724–725 (1968) (defining a consti-

tutional standard for whether a witness is “unavailable”

Cite as: 567 U. S. ____ (2012) 3

THOMAS, J., concurring in judgment

for purposes of the Confrontation Clause); see also Ohio v.

Roberts, 448 U. S. 56, 76 (1980) (recognizing that Barber

“explored the issue of constitutional unavailability” (em-

phasis added)). Likewise, we have held that limiting in-

structions may be insufficient in some circumstances to

protect against violations of the Confrontation Clause.

See Bruton v. United States, 391 U. S. 123 (1968).

Of particular importance here, we have made sure that

an out-of-court statement was introduced for a “legitimate,

nonhearsay purpose” before relying on the not-for-its-truth

rationale to dismiss the application of the Confrontation

Clause. See Street, 471 U. S., at 417 (emphasis added). In

Street, the defendant testified that he gave a false confes-

sion because police coerced him into parroting his accom-

plice’s confession. Id., at 411. On rebuttal, the prosecu-

tion introduced the accomplice’s confession to demonstrate

to the jury the ways in which the two confessions differed.

Id., at 411–412. Finding no Confrontation Clause prob-

lem, this Court held that the accomplice’s out-of-court

confession was not introduced for its truth, but only to

impeach the defendant’s version of events. Id., at 413–

414. Although the Court noted that the confession was

not hearsay “under traditional rules of evidence,” id., at

413, the Court did not accept that nonhearsay label at face

value. Instead, the Court thoroughly examined the use of

the out-of-court confession and the efficacy of a limiting

instruction before concluding that the Confrontation

Clause was satisfied “[i]n this context.” Id., at 417.

Unlike the confession in Street, statements introduced

to explain the basis of an expert’s opinion are not intro-

duced for a plausible nonhearsay purpose. There is no

meaningful distinction between disclosing an out-of-court

statement so that the factfinder may evaluate the expert’s

opinion and disclosing that statement for its truth. “To

use the inadmissible information in evaluating the ex-

pert’s testimony, the jury must make a preliminary judg-

4 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

ment about whether this information is true.” D. Kaye, D.

Bernstein, & J. Mnookin, The New Wigmore: A Treatise

on Evidence: Expert Evidence §4.10.1, p. 196 (2d ed. 2011)

(hereinafter Kaye). “If the jury believes that the basis

evidence is true, it will likely also believe that the expert’s

reliance is justified; inversely, if the jury doubts the accu-

racy or validity of the basis evidence, it will be skeptical of

the expert’s conclusions.” Ibid.1

Contrary to the plurality’s suggestion, this common-

sense conclusion is not undermined by any longstand-

ing historical practice exempting expert basis testimony

from the rigors of the Confrontation Clause. Prior to the

adoption of the Federal Rules of Evidence in 1975, an

expert could render an opinion based only on facts that the

expert had personally perceived or facts that the expert

learned at trial, either by listening to the testimony of

other witnesses or through a hypothetical question based

on facts in evidence. See Advisory Committee’s Notes on

Fed. Rule Evid. 703, 28 U. S. C. App., p. 361; 29 C. Wright

& V. Gold, Federal Practice and Procedure §6271,

pp. 300–301 (1997) (hereinafter Wright); 1 K. Broun et al.,

McCormick on Evidence §14, p. 86 (6th ed. 2006) (herein-

after Broun); Kaye §4.6, at 156–157. In those situations,

there was little danger that the expert would rely on

testimonial hearsay that was not subject to confrontation

because the expert and the witnesses on whom he relied

were present at trial. It was not until 1975 that the uni-

——————

1 The plurality relies heavily on the fact that this case involved a

bench trial, emphasizing that a judge sitting as factfinder is pre-

sumed—more so than a jury—to “understand the limited reason for the

disclosure” of basis testimony and to “not rely on that information for

any improper purpose.” Ante, at 15. Even accepting that presumption,

the point is not that the factfinder is unable to understand the restricted

purpose for basis testimony. Instead, the point is that the purport-

edly “limited reason” for such testimony—to aid the factfinder in

evaluating the expert’s opinion—necessarily entails an evaluation of

whether the basis testimony is true.

Cite as: 567 U. S. ____ (2012) 5

THOMAS, J., concurring in judgment

verse of facts upon which an expert could rely was ex-

panded to include facts of the case that the expert learned

out of court by means other than his own perception. 1

Broun §14, at 87; Kaye §4.6, at 157. It is the expert’s

disclosure of those facts that raises Confrontation Clause

concerns.2

B

Those concerns are fully applicable in this case. Lamba-

tos opined that petitioner’s DNA profile matched the male

profile derived from L. J.’s vaginal swabs. In reaching

that conclusion, Lambatos relied on Cellmark’s out-of-

court statements that the profile it reported was in fact

derived from L. J.’s swabs, rather than from some other

source. Thus, the validity of Lambatos’ opinion ultimately

turned on the truth of Cellmark’s statements. The plural-

ity’s assertion that Cellmark’s statements were merely

relayed to explain “the assumptions on which [Lambatos’]

opinion rest[ed],” ante, at 3, overlooks that the value of

Lambatos’ testimony depended on the truth of those very

assumptions.3

——————

2 In its discussion of history, the plurality relies on Beckwith v.

Sydebotham, 1 Camp. 116, 170 Eng. Rep. 897 (K. B. 1807). In that

case, experts were asked to render opinions on a ship’s seaworthiness

based on facts read into court from the sworn ex parte deposition of a

witness who purported to have seen the ship’s deficiencies. To be sure,

Beckwith involved expert reliance on testimonial hearsay. But Beck-

with was an English case decided after the ratification of the Confron-

tation Clause, and this form of expert testimony does not appear to

have been a common feature of early American evidentiary practice.

See 29 Wright §6271, at 300–301; 1 Broun §14, at 86–87; Kaye §4.6, at

156–157.

3 Cellmark’s statements were not introduced for the nonhearsay pur-

pose of showing their effect on Lambatos—i.e., to explain what prompted

her to search the DNA database for a match. See, e.g., 30B M. Graham,

Federal Practice and Procedure §7034.1, pp. 521–529 (interim ed. 2011)

(noting that out-of-court statements introduced for their effect on

listener do not implicate the Confrontation Clause). The statements

6 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

It is no answer to say that other nonhearsay evidence

established the basis of the expert’s opinion. Here, Lam-

batos disclosed Cellmark’s statements that it generated a

male DNA profile from L. J.’s swabs, but other evidence

showed that L. J.’s swabs contained semen and that the

swabs were shipped to and received from Cellmark. Ante,

at 5–6. That evidence did not render Cellmark’s state-

ments superfluous. Of course, evidence that Cellmark

received L. J.’s swabs and later produced a DNA profile is

some indication that Cellmark in fact generated the profile

from those swabs, rather than from some other source (or

from no source at all). Cf. Melendez-Diaz v. Massachu-

setts, 557 U. S. 305, 319 (2009) (citing brief that describes

“cases of documented ‘drylabbing’ where forensic analysts

report results of tests that were never performed,” includ-

ing DNA tests). But the only direct evidence to that effect

was Cellmark’s statement, which Lambatos relayed to the

factfinder. In any event, the factfinder’s ability to rely on

other evidence to evaluate an expert’s opinion does not

alter the conclusion that basis testimony is admitted for

its truth. The existence of other evidence corroborating

the basis testimony may render any Confrontation Clause

violation harmless, but it does not change the purpose of

such testimony and thereby place it outside of the reach of

the Confrontation Clause.4 I would thus conclude that

——————

that Lambatos conveyed went well beyond what was necessary to

explain why she performed the search. Lambatos did not merely

disclose that she received a DNA profile from Cellmark. Rather, she

further disclosed Cellmark’s statements that the profile was “male” and

that it was “found in semen from the vaginal swabs of [L. J.].” App. 56.

Those facts had nothing to do with her decision to conduct a search.

They were introduced for their truth.

4 The plurality concludes that the Confrontation Clause would not

be implicated here “even if the record did not contain any [other] evi-

dence that could rationally support a finding that Cellmark produced a

scientifically reliable DNA profile based on L. J.’s vaginal swab.” Ante,

at 22. But, far from establishing a “legitimate” nonhearsay purpose for

Cite as: 567 U. S. ____ (2012) 7

THOMAS, J., concurring in judgment

Cellmark’s statements were introduced for their truth.

C

The plurality’s contrary conclusion may seem of little

consequence to those who view DNA testing and other

forms of “hard science” as intrinsically reliable. But see

Melendez-Diaz, supra, at 318 (“Forensic evidence is not

uniquely immune from the risk of manipulation”). Today’s

holding, however, will reach beyond scientific evidence to

ordinary out-of-court statements. For example, it is not

uncommon for experts to rely on interviews with third

parties in forming their opinions. See, e.g., People v. Gold-

stein, 6 N. Y. 3d 119, 123–124, 843 N. E. 2d 727, 729–730

(2005) (psychiatrist disclosed statements made by the

defendant’s acquaintances as part of the basis of her opin-

ion that the defendant was motivated to kill by his feelings

of sexual frustration).

It is no answer to say that “safeguards” in the rules of

evidence will prevent the abuse of basis testimony. Ante,

at 26. To begin with, courts may be willing to conclude

that an expert is not acting as a “mere condui[t]” for hear-

say, ante, at 27, as long as he simply provides some opin-

ion based on that hearsay. See Brief for Respondent 18,

n. 4 (collecting cases). In addition, the hearsay may be the

kind of fact on which experts in a field reasonably rely.

See Fed. Rule Evid. 703; Goldstein, supra, at 125, 843

N. E. 2d, at 731 (evidence showed that reputable psychia-

trists relied upon third-party interviews in forming their

——————

Cellmark’s statements, Tennessee v. Street, 471 U. S. 409, 417 (1985), a

complete lack of other evidence tending to prove the facts conveyed by

Cellmark’s statements would completely refute the not-for-its-truth

rationale. The trial court, in announcing its verdict, expressly concluded

that petitioner’s DNA matched the “DNA . . . in the semen recovered

from the victim’s vagina.” 4 R. JJJ151. Absent other evidence, it would

have been impossible for the trial court to reach that conclusion with-

out relying on the truth of Cellmark’s statement that its test results

were based on the semen from L. J.’s swabs.

8 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

opinions). Of course, some courts may determine that

hearsay of this sort is not substantially more probative

than prejudicial and therefore should not be disclosed un-

der Rule 703. But that balancing test is no substitute

for a constitutional provision that has already struck the

balance in favor of the accused. See Crawford, 541 U. S.,

at 61 (“[The Confrontation Clause] commands, not that

evidence be reliable, but that reliability be assessed in a

particular manner: by testing in the crucible of cross-

examination”).

II

A

Having concluded that the statements at issue here

were introduced for their truth, I turn to whether they

were “testimonial” for purposes of the Confrontation

Clause. In Crawford, the Court explained that “[t]he text

of the Confrontation Clause . . . applies to ‘witnesses’

against the accused—in other words, those who ‘bear

testimony.’ ” Id., at 51 (quoting 2 N. Webster, An Ameri-

can Dictionary of the English Language (1828)). “ ‘Testi-

mony,’ ” in turn, is “ ‘[a] solemn declaration or affirmation

made for the purpose of establishing or proving some

fact.’ ” 541 U. S., at 51. In light of its text, I continue to

think that the Confrontation Clause regulates only the use

of statements bearing “indicia of solemnity.” Davis v.

Washington, 547 U. S. 813, 836–837, 840 (2006) (THOMAS,

J., concurring in judgment in part and dissenting in part).

This test comports with history because solemnity marked

the practices that the Confrontation Clause was designed

to eliminate, namely, the ex parte examination of wit-

nesses under the English bail and committal statutes passed

during the reign of Queen Mary. See id., at 835; Bryant,

562 U. S., at ___ (THOMAS, J., concurring in judgment)

(slip op., at 1); Crawford, supra, at 43–45. Accordingly, I

have concluded that the Confrontation Clause reaches

Cite as: 567 U. S. ____ (2012) 9

THOMAS, J., concurring in judgment

“ ‘formalized testimonial materials,’ ” such as depositions,

affidavits, and prior testimony, or statements resulting

from “ ‘formalized dialogue,’ ” such as custodial interroga-

tion. Bryant, supra, at ___ (slip op., at 2); see also Davis,

supra, at 836–837.5

Applying these principles, I conclude that Cellmark’s

report is not a statement by a “witnes[s]” within the mean-

ing of the Confrontation Clause. The Cellmark report

lacks the solemnity of an affidavit or deposition, for it is

neither a sworn nor a certified declaration of fact. No-

where does the report attest that its statements accurately

reflect the DNA testing processes used or the results ob-

tained. See Report of Laboratory Examination, Lodging

of Petitioner. The report is signed by two “reviewers,” but

they neither purport to have performed the DNA testing

nor certify the accuracy of those who did. See ibid. And,

although the report was produced at the request of law

enforcement, it was not the product of any sort of formal-

ized dialogue resembling custodial interrogation.

The Cellmark report is distinguishable from the labora-

tory reports that we determined were testimonial in

Melendez-Diaz, 557 U. S. 305, and in Bullcoming v. New

Mexico, 564 U. S. ___ (2011). In Melendez-Diaz, the re-

ports in question were “sworn to before a notary public

by [the] analysts” who tested a substance for cocaine. 557

U. S., at 308. In Bullcoming, the report, though unsworn,

included a “Certificate of Analyst” signed by the forensic

analyst who tested the defendant’s blood sample. 564

U. S., at ___ (slip op., at 3). The analyst “affirmed that

——————

5 In addition, I have stated that, because the Confrontation Clause

“sought to regulate prosecutorial abuse occurring through use of

ex parte statements,” it “also reaches the use of technically informal

statements when used to evade the formalized process.” Davis, 547

U. S., at 838 (opinion concurring in judgment in part and dissenting in

part). But, in this case, there is no indication that Cellmark’s state-

ments were offered “in order to evade confrontation.” Id., at 840.

10 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

‘[t]he seal of th[e] sample was received intact and broken

in the laboratory,’ that ‘the statements in [the analyst’s

block of the report] are correct,’ and that he had ‘followed

the procedures set out on the reverse of th[e] report.’ ”

Ibid.

The dissent insists that the Bullcoming report and

Cellmark’s report are equally formal, separated only by

such “minutia” as the fact that Cellmark’s report “is not

labeled a ‘certificate.’ ” Post, at 22–23 (opinion of KAGAN,

J.). To the contrary, what distinguishes the two is that

Cellmark’s report, in substance, certifies nothing. See su-

pra, at 9. That distinction is constitutionally significant

because the scope of the confrontation right is properly

limited to extrajudicial statements similar in solemnity to

the Marian examination practices that the Confrontation

Clause was designed to prevent. See Davis, supra, at 835–

836 (opinion of THOMAS, J.). By certifying the truth of the

analyst’s representations, the unsworn Bullcoming report

bore “a ‘striking resemblance,’ ” 547 U. S., at 837 (quot-

ing Crawford, 541 U. S., at 52), to the Marian practice in

which magistrates examined witnesses, typically on oath,

and “certif[ied] the results to the court.” Id., at 44. And,

in Melendez-Diaz, we observed that “ ‘certificates’ are

functionally identical to live, in-court testimony, doing

precisely what a witness does on direct examination.” 557

U. S., at 310–311. Cellmark’s report is marked by no such

indicia of solemnity.

Contrary to the dissent’s suggestion, acknowledging

that the Confrontation Clause is implicated only by for-

malized statements that are characterized by solemnity

will not result in a prosecutorial conspiracy to elude con-

frontation by using only informal extrajudicial statements

against an accused. As I have previously noted, the Con-

frontation Clause reaches bad-faith attempts to evade the

formalized process. See supra, at 9, n. 5 (quoting Davis,

547 U. S., at 838). Moreover, the prosecution’s use of

Cite as: 567 U. S. ____ (2012) 11

THOMAS, J., concurring in judgment

informal statements comes at a price. As the dissent

recognizes, such statements are “less reliable” than for-

malized statements, post, at 24, and therefore less persua-

sive to the factfinder. Cf. post, at 21–22, n. 6 (arguing that

prosecutors are unlikely to “forgo DNA evidence in favor of

less reliable eyewitness testimony” simply because the

defendant is entitled to confront the DNA analyst). But,

even assuming that the dissent accurately predicts an

upswing in the use of “less reliable” informal statements,

that result does not “turn the Confrontation Clause upside

down.” Post, at 24. The Confrontation Clause does not

require that evidence be reliable, Crawford, supra, at 61,

but that the reliability of a specific “class of testimonial

statements”—formalized statements bearing indicia of

solemnity—be assessed through cross-examination. See

Melendez-Diaz, 557 U. S., at 309–310.

B

Rather than apply the foregoing principles, the plurality

invokes its “primary purpose” test. The original formula-

tion of that test asked whether the primary purpose of an

extrajudicial statement was “to establish or prove past

events potentially relevant to later criminal prosecution.”

Davis, supra, at 822. I agree that, for a statement to be

testimonial within the meaning of the Confrontation

Clause, the declarant must primarily intend to establish

some fact with the understanding that his statement may

be used in a criminal prosecution. See Bryant, 562 U. S.,

at ___ (SCALIA, J., dissenting) (slip op., at 2–3). But this

necessary criterion is not sufficient, for it sweeps into the

ambit of the Confrontation Clause statements that lack

formality and solemnity and is thus “disconnected from

history.” Davis, supra, at 838–842 (opinion concurring in

judgment in part and dissenting in part); Bryant, supra, at

___ (opinion concurring in judgment) (slip op., at 1). In

addition, a primary purpose inquiry divorced from solem-

12 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

nity is unworkable in practice. Davis, supra, at 839; Bry-

ant, supra, at ___ (slip op., at 1). Statements to police are

often made both to resolve an ongoing emergency and to

establish facts about a crime for potential prosecution.

The primary purpose test gives courts no principled way to

assign primacy to one of those purposes. Davis, supra, at

839. The solemnity requirement is not only true to the

text and history of the Confrontation Clause, but goes a

long way toward resolving that practical difficulty. If a

statement bears the formality and solemnity necessary to

come within the scope of the Clause, it is highly unlikely

that the statement was primarily made to end an ongoing

emergency.

The shortcomings of the original primary purpose test

pale in comparison, however, to those plaguing the refor-

mulated version that the plurality suggests today. The

new primary purpose test asks whether an out-of-court

statement has “the primary purpose of accusing a targeted

individual of engaging in criminal conduct.” Ante, at 29.

That test lacks any grounding in constitutional text, in

history, or in logic.

The new test first requires that an out-of-court state-

ment be made “for the purpose of proving the guilt of

a particular criminal defendant.” Ante, at 30 (emphasis

added). Under this formulation, statements made “before

any suspect was identified” are beyond the scope of the

Confrontation Clause. See ante, at 3. There is no textual

justification, however, for limiting the confrontation right

to statements made after the accused’s identity became

known. To be sure, the Sixth Amendment right to con-

frontation attaches “[i]n . . . criminal prosecutions,” at

which time the accused has been identified and appre-

hended. But the text of the Confrontation Clause does not

constrain the time at which one becomes a “witnes[s].”

Indeed, we have previously held that a declarant may

become a “witnes[s]” before the accused’s prosecution. See

Cite as: 567 U. S. ____ (2012) 13

THOMAS, J., concurring in judgment

Crawford, 541 U. S., at 50–51 (rejecting the view that the

Confrontation Clause applies only to in-court testimony).

Historical practice confirms that a declarant could

become a “witnes[s]” before the accused’s identity was

known. As previously noted, the confrontation right was

a response to ex parte examinations of witnesses in 16th-

century England. Such examinations often occurred after

an accused was arrested or bound over for trial, but some

examinations occurred while the accused remained “un-

known or fugitive.” J. Langbein, Prosecuting Crime in the

Renaissance 90 (1974) (describing examples, including the

deposition of a victim who was swindled out of 20 shillings

by a “ ‘cunning man’ ”); see also 1 J. Stephen, A History of

the Criminal Law of England 217–218 (1883) (describ-

ing the sworn examinations of witnesses by coroners, who

were charged with investigating suspicious deaths by

asking local citizens if they knew “who [was] culpable

either of the act or of the force” (internal quotation marks

omitted)).

There is also little logical justification for the plurality’s

rule. The plurality characterizes Cellmark’s report as a

statement elicited by police and made by Cellmark not “to

accuse petitioner or to create evidence for use at trial,” but

rather to resolve the ongoing emergency posed by “a dan-

gerous rapist who was still at large.” Ante, at 31. But, as

I have explained, that distinction is unworkable in light of

the mixed purposes that often underlie statements to the

police. See supra, at 12. The difficulty is only compound-

ed by the plurality’s attempt to merge the purposes of both

the police and the declarant. See ante, at 29; Bryant,

supra, at ___–___ (majority opinion) (slip op., at 20–23).

But if one purpose must prevail, here it should surely be

the evidentiary one, whether viewed from the perspective

of the police, Cellmark, or both. The police confirmed the

presence of semen on L. J.’s vaginal swabs on February 15,

2000, placed the swabs in a freezer, and waited until

14 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

November 28, 2000, to ship them to Cellmark. App. 30–

34, 51–52. Cellmark, in turn, did not send its report to

the police until April 3, 2001, id., at 54, over a year

after L. J.’s rape. Given this timeline, it strains credulity

to assert that the police and Cellmark were primarily

concerned with the exigencies of an ongoing emergency,

rather than with producing evidence in the ordinary course.

In addition to requiring that an out-of-court statement

“targe[t]” a particular accused, the plurality’s new primary

purpose test also considers whether the statement is so

“inherently inculpatory,” ante, at 3, that the declarant

should have known that his statement would incriminate

the accused. In this case, the plurality asserts that “[t]he

technicians who prepare a DNA profile generally have no

way of knowing whether it will turn out to be incriminat-

ing or exonerating—or both,” ante, at 32, and thus “no one

at Cellmark could have possibly known that the profile

that it produced would turn out to inculpate petitioner,”

ante, at 31.

Again, there is no textual justification for this limitation

on the scope of the Confrontation Clause. In Melendez-

Diaz, we held that “[t]he text of the [Sixth] Amendment

contemplates two classes of witnesses—those against the

defendant and those in his favor.” 557 U. S., at 313–314.

We emphasized that “there is not a third category of wit-

nesses, helpful to the prosecution, but somehow immune

from confrontation.” Id., at 314. Thus, the distinction

between those who make “inherently inculpatory” state-

ments and those who make other statements that are

merely “helpful to the prosecution” has no foundation in

the text of the Amendment.

It is also contrary to history. The 16th-century Marian

statutes instructed magistrates to transcribe any infor-

mation by witnesses that “ ‘shall be material to prove the

felony.’ ” See, e.g., 1 Stephen, supra, at 219 (quoting 1 & 2

Phil. & Mary, ch. 13 (1554)). Magistrates in the 17th and

Cite as: 567 U. S. ____ (2012) 15

THOMAS, J., concurring in judgment

18th centuries were also advised by practice manuals to

take the ex parte examination of a witness even if his evi-

dence was “weak” or the witness was “unable to inform

any material thing against” an accused. J. Beattie, Crime

and the Courts in England: 1660–1800, p. 272 (1986)

(internal quotation marks omitted). Thus, neither law nor

practice limited ex parte examinations to those witnesses

who made “inherently inculpatory” statements.

This requirement also makes little sense. A statement

that is not facially inculpatory may turn out to be highly

probative of a defendant’s guilt when considered with

other evidence. Recognizing this point, we previously

rejected the view that a witness is not subject to confron-

tation if his testimony is “inculpatory only when taken

together with other evidence.” Melendez-Diaz, supra, at

313. I see no justification for reviving that discredited

approach, and the plurality offers none.6

* * *

Respondent and its amici have emphasized the econom-

ic and logistical burdens that would be visited upon States

should every analyst who reports DNA results be required

to testify at trial. See, e.g., ante, at 32 (citing brief stating

that some crime labs use up to 12 technicians when test-

ing a DNA sample). These burdens are largely the prod-

uct of a primary purpose test that reaches out-of-court

statements well beyond the historical scope of the Con-

frontation Clause and thus sweeps in a broad range of

sources on which modern experts regularly rely. The

——————

6 The plurality states that its test “will not prejudice any defendant

who really wishes to probe the reliability” of out-of-court statements

introduced in his case because the person or persons who made the

statements “may always be subpoenaed by the defense and questioned

at trial.” Ante, at 4. Melendez-Diaz rejected this reasoning as well,

holding that the defendant’s subpoena power “is no substitute for the

right of confrontation.” 557 U. S., at 324.

16 WILLIAMS v. ILLINOIS

THOMAS, J., concurring in judgment

proper solution to this problem is not to carve out a Con-

frontation Clause exception for expert testimony that is

rooted only in legal fiction. See ante, at 3. Nor is it to

create a new primary purpose test that ensures that DNA

evidence is treated differently. See ibid. Rather, the

solution is to adopt a reading of the Confrontation Clause

that respects its historically limited application to a nar-

row class of statements bearing indicia of solemnity. In

forgoing that approach, today’s decision diminishes the

Confrontation Clause’s protection in cases where experts

convey the contents of solemn, formalized statements to

explain the bases for their opinions. These are the very

cases in which the accused should “enjoy the right . . . to

be confronted with the witnesses against him.”

Cite as: 567 U. S. ____ (2012) 1

KAGAN, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–8505

_________________

SANDY WILLIAMS, PETITIONER v. ILLINOIS

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF

ILLINOIS

[June 18, 2012]

JUSTICE KAGAN, with whom JUSTICE SCALIA, JUSTICE

GINSBURG, and JUSTICE SOTOMAYOR join, dissenting.

Some years ago, the State of California prosecuted a

man named John Kocak for rape. At a preliminary hear-

ing, the State presented testimony from an analyst at the

Cellmark Diagnostics Laboratory—the same facility used

to generate DNA evidence in this case. The analyst had

extracted DNA from a bloody sweatshirt found at the

crime scene and then compared it to two control samples—

one from Kocak and one from the victim. The analyst’s

report identified a single match: As she explained on

direct examination, the DNA found on the sweatshirt

belonged to Kocak. But after undergoing cross-

examination, the analyst realized she had made a mortify-

ing error. She took the stand again, but this time to admit

that the report listed the victim’s control sample as coming

from Kocak, and Kocak’s as coming from the victim. So

the DNA on the sweatshirt matched not Kocak, but the

victim herself. See Tr. in No. SCD110465 (Super. Ct. San

Diego Cty., Cal., Nov. 17, 1995), pp. 3–4 (“I’m a little hys-

terical right now, but I think . . . the two names should be

switched”), online at http: //www.nlada.org/forensics/for_

lib/Documents/1037341561.0/JohnIvanKocak.pdf (as vis-

ited June 15, 2012, and available in Clerk of Court’s case

file). In trying Kocak, the State would have to look else-

where for its evidence.

2 WILLIAMS v. ILLINOIS

KAGAN, J., dissenting

Our Constitution contains a mechanism for catching

such errors—the Sixth Amendment’s Confrontation

Clause. That Clause, and the Court’s recent cases inter-

preting it, require that testimony against a criminal de-

fendant be subject to cross-examination. And that com-

mand applies with full force to forensic evidence of the

kind involved in both the Kocak case and this one. In two

decisions issued in the last three years, this Court held

that if a prosecutor wants to introduce the results of fo-

rensic testing into evidence, he must afford the defendant

an opportunity to cross-examine an analyst responsible for

the test. Forensic evidence is reliable only when properly

produced, and the Confrontation Clause prescribes a par-

ticular method for determining whether that has hap-

pened. The Kocak incident illustrates how the Clause is

designed to work: Once confronted, the analyst discovered

and disclosed the error she had made. That error would

probably not have come to light if the prosecutor had

merely admitted the report into evidence or asked a third

party to present its findings. 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.

Under our Confrontation Clause precedents, this is

an open-and-shut case. The State of Illinois prosecuted

Sandy Williams for rape based in part on a DNA profile

created in Cellmark’s laboratory. Yet the State did not

give Williams a chance to question the analyst who pro-

duced that evidence. Instead, the prosecution introduced

the results of Cellmark’s testing through an expert wit-

ness who had no idea how they were generated. That

approach—no less (perhaps more) than the confrontation-

free methods of presenting forensic evidence we have

formerly banned—deprived Williams of his Sixth Amend-

ment right to “confron[t] . . . the witnesses against him.”

Cite as: 567 U. S. ____ (2012) 3

KAGAN, J., dissenting

The Court today disagrees, though it cannot settle on a

reason why. JUSTICE ALITO, joined by three other Jus-

tices, advances two theories—that the expert’s summary of

the Cellmark report was not offered for its truth, and

that the report is not the kind of statement triggering the

Confrontation Clause’s protection. In the pages that

follow, I call JUSTICE ALITO’s opinion “the plurality,”

because that is the conventional term for it. But in all

except its disposition, his opinion is a dissent: Five Jus-

tices specifically reject every aspect of its reasoning

and every paragraph of its explication. See ant

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