Breaking the Promise of Confrontation in Stuart v. Alabama

Denials of cert usually are not worth mentioning, but the one in Stuart v. Alabama is notable. In that case, Alabama courts relied on a surrogate-witness theory to admit into evidence two laboratory reports of high blood-alcohol concentration without any testimony from the technician who wrote the reports or from anyone else involved in their preparation -- even though in Bullcoming v. New Mexico the Supreme Court rejected this theory as a justification for not affording a defendant the opportunity to confront the author of the report.

In response to a petition for a writ of certiorari, the state contended that the Bullcoming violation did not matter because the numbers in the reports were only the basis for an expert's extrapolation to the concentration at the time of the accident that gave rise to the negligent homicide and drunken driving prosecution. Stuart described this representation of the record as "not candid," but the state insisted that the admission of the reports could be upheld by piecing together votes from Williams v. Illinois. It dismissed the fact that, unlike Williams, the reports were introduced into evidence (and the reported concentrations described as a far in excess of the legal limit) as a mere technicality.

The Supreme Court denied the petition. The state's tortured argument about Williams provoked Justice Gorsuch, together with Justice Sotomayor, to file a dissenting opinion maintaining that cross-examination is needed to expose bias and error in forensic science reports and expressing strong disagreement with the plurality and Justice Thomas's opinions in Williams v. Illinois. More details follow.

At around 11:00 p.m., April 1, 2015, police found Vanessa Stuart's vehicle off the steep shoulder of the road. Inside, Stuart was talking on the telephone. Another vehicle sat at the edge of the woods with Tiffany Howell's dead body inside. A traffic-homicide investigator determined that Stuart’s vehicle, traveling at 90 to 100 miles per hour, had struck Howell’s from behind, spinning it and causing it to roll several times before striking a tree.

At the hospital, Stuart refused a blood-alcohol test and tried to leave. Police arrested her and took her to jail. After acquiring a search warrant for her blood, they took her back to the hospital to secure vials of her blood. By that time, four hours had passed. A second sample was taken half an hour later. The vials went to the Alabama Department of Forensic Sciences, where Belicia Sutton wrote reports about the alcohol levels in the samples from "the suspect."

At Stuart's trial for negligent homicide and driving under the influence, the state did not call Sutton to the witness stand. Instead, it offered the reports themselves into evidence and then had Dr. James Hudson, the laboratory's toxicology section chief, extrapolate backwards from the already high level of 0.174 recorded in the first report to conclude that Stuart’s blood-alcohol level at the time of the wreck was a whopping 0.234.

Stuart appealed her resulting convictions, arguing in part that the state deprived her of her Sixth Amendment right to confront the witnesses against her. Dr. Hudson, she pointed out, was not involved in the testing and did not even work for the state at the time of the accident. In an unpublished opinion, the Alabama Court of Criminal Appeals rejected the argument on the theory that Hudson could stand in as a surrogate for Sutton. It wrote that:

Dr. Hudson gave extensive testimony regarding the policies and procedures of the DFS’s toxicology laboratory. This included controls in the analysis and the laboratory’s standard practice of having the results of the analysis independently reviewed. Dr. Hudson testified that "as the [toxicology] section chief, I’m fundamentally the toxicology supervisor so I’m responsible for the day-to-day workflow in the laboratory, testing assignments for cases, as well as personnel management.” (R. 630.) “This testimony provided [Stuart] with ample opportunity to cross-examine [Dr. Hudson] regarding the [blood]-analysis report.” Taylor v. State [Ms. CR-15-0354, Sept. 9, 2016] __ So. 3d __, __ (Ala. Crim. App. 2016). This Court holds that Stuart’s right to confront the witnesses against her was not violated by the circuit court’s allowing Dr. Hudson to testify to the results of her blood analysis. As such, this issue does not entitle Stuart to any relief.

The Alabama Supreme Court declined to review the case, and Stuart petitioned the U.S. Supreme Court for a writ of certiorari on the ground that Sutton's reports were received as evidence of Stuart's blood-alcohol level through Hudson's testimony in stark violation of the Confrontation Clause as applied in Bullcoming v. New Mexico, 564 U.S. 647 (2011).

She had a point. Bullcoming was another DUI case in which a suspect's blood was taken at a hospital and sent to the state forensic laboratory for analysis. As in Stuart, "the State called another analyst who was familiar with the laboratory's testing procedures, but had neither participated in nor observed the test on [the] blood sample." In an opinion joined in relevant part by four members of the Court, Justice Ginsburg rejected the surrogate theory in sweeping terms:

The question presented is whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification — made for the purpose of proving a particular fact — through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification. We hold that surrogate testimony of that order does not meet the constitutional requirement. The accused's right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.

Id. at 652. Justice Sotomayor concurred, highlighting the circumstances that made the surrogate witness's testimony an unacceptable substitute: "the person testifying [was not] a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue" and "an expert witness was [not] asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence."

In response to the Bullcoming argument, the state abandoned the surrogacy theory of its trial and appellate courts. It argued that Hudson's testimony about the reports was not subject to the confrontation requirement because the blood-alcohol level of 0.174 (and a slightly lower reading from the later sample) were not introduced to prove that Stuart was driving with a blood-alcohol concentration above the legal limit, but rather was a hypothetical assumption made solely to arrive at the extrapolated figure of 0.234. So characterized, Hudson's testimony did not offend the Confrontation Clause because "[t]he Clause ... does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted," Crawford v. Washington, 541 U.S. 36, 53 n.4 (2004), and the state was not trying to prove that Stuart's blood alcohol concentration was 0.174 hours after the accident. At least, that is what the state claimed. .

That a majority of the Justices of the Supreme Court rejected just such an argument (in separate opinions that conflicted in another respect) in Williams v. Illinois, 567 U.S. 50 (2012), did not faze Alabama's Attorney General. His brief contended that because four Justices propounded the hypothetical-assumption argument in Williams, and because one of the Justices who rejected it also maintained that most laboratory reports lack the formality necessary to be statements that trigger a right to confront their authors, Hudson's testimony was constitutionally admitted into evidence.

Aside from its inherent artificiality, this reasoning overlooks the fact that, as in Bullcoming (but not Williams), the laboratory reports were explicitly admitted into evidence. Their admission and publication to the jury without an opportunity to cross-examine their author violated the Confrontation Clause even if Hudson's reiteration of their content was permissible under the plurality's opinion in Williams. Apparently, the jury was not instructed that they were not to rely the numbers in the reports as true, but only to use Dr. Hudson's opinion -- that is, his extrapolation from them -- as evidence against the accused. Indeed, the state had Dr. Hudson testify that the laboratory's findings of 0.174 and 0.158 greatly exceeded the legal limit of 0.08 (prompting Stuart to describe Alabama's argument as "not candid"). In contrast, the Williams plurality noted that the trier of fact there was a learned judge who could be expected (somehow) not to rely on the laboratory report for its truth but to consider it only as an explanation of how the testifying expert reached her "independent" conclusion). Alabama dismissed these differences as mere technicalities.

The Supreme Court denied the petition in Stuart. Of course, in itself a denial of such a petition has no precedential effect and is not even an expression of views on the merits of the case. The Court grants cert for but a small fraction of the many petitions it receives, rarely giving a reason for denying the petitions.

Nevertheless, the inaction in Stuart may seem disappointing. With its four inconclusive and conflicting opinions, Williams has licensed chaos in the lower courts. But Stuart may not have been a suitable vehicle for re-examining the not-for-the-truth reasoning of the Williams plurality. Had it granted certiorari, the Court might have written a two-sentence opinion remanding the case for a determination of whether the violation of Bullcoming was harmless error. (Well, maybe more than two, just to point out that the not-for-the truth reasoning, already rejected by a majority of the Court in Williams, cannot possibly be extended to cases in which laboratory reports are admitted into evidence without limitation.) Or, the Court could have used Stuart to overrule the 5-4 decision in Bullcoming in order to affirm. But the case was not ideally suited to cleaning up the mess left by Williams.

Even so, two Justices dissented from the denial of certiorari and issued a substantial opinion on the merits -- an unusual action. Justice Gorsuch, who was not on the Court for its trilogy of opinions on the Confrontation Clause and laboratory reports (Melendez-Diaz, Bullcoming, and Williams), wrote this dissenting opinion. Justice Sotomayor joined it. The opinion begins with a paean to cross-examination:

More and more, forensic evidence plays a decisive role in criminal trials today. But it is hardly “immune from the risk of manipulation.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 318 (2009). A forensic analyst “may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.” Ibid. Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process. ... To guard against such mischief and mistake and the risk of false convictions they invite, our criminal justice system depends on adversarial testing and cross-examination. Because cross-examination may be “the greatest legal engine ever invented for the discovery of truth,” ... the Constitution promises every person accused of a crime the right to confront his accusers. ... [¶] That promise was broken here.

Whether cross-examination is generally effective at exposing inadequate training, contamination, or error is open to question, but it certainly can complement the scientific engine for discovering truths about alcohol levels, trace evidence, and the like.

With this introduction in place, Justice Gorsuch observed that "the State of Alabama introduced in evidence the results of a blood-alcohol test conducted hours after [Stuart's] arrest [but] refused to bring to the stand the analyst who performed the test." But the opinion does not note that the state was seeking to extend the plurality's rule in Williams to a laboratory report actually admitted into evidence and presented to the jury as proof of what it asserts. Rather, Justice Gorsuch simply endorsed the position taken in Williams by the five dissenting Justices and Justice Thomas. They maintained that the not-for-the-truth theory is untenable because the testifying expert's opinion cannot be credited unless the missing witness's report is true. As Justice Gorsuch put it,

The whole point of the exercise was to establish—because of the report’s truth—a basis for the jury to credit the testifying expert’s estimation of Ms. Stuart’s blood-alcohol level hours earlier. As the four dissenting Justices in Williams explained, “when a witness . . . repeats an out-of-court statement as the basis for a conclusion, . . . the statement’s utility is then dependent on its truth.” 567 U. S., at 126 (opinion of KAGAN, J.). With this JUSTICE THOMAS fully agreed, observing that “[t]here is no meaningful distinction between disclosing an out-of-court statement so that the factfinder may evaluate the [testifying] expert’s opinion and disclosing that statement for its truth.”  Id., at 106 (opinion concurring in judgment).

Although this is the better understanding of the situation even when, as in Williams, the report is not introduced into evidence, in Stuart, the Williams plurality could adhere to their more contrived analysis while agreeing with Justice Gorsuch that no "prosecutor [would] bother to offer in evidence the nontestifying analyst’s report in this case except to prove the truth of its assertions about the level of alcohol in Ms. Stuart’s blood at the time of the test" (emphasis added).

The opinion concludes with a short analysis of Alabama's additional claim that the laboratory report was not "testimonial" because it lacked the formality of depositions, affidavits, certificates, or similar instruments. Here Justice Gorsuch joins the ranks of nearly every other Justice. Only Justice Thomas contends that police laboratory reports prepared for criminal investigations and possible prosecutions are not sufficiently formal to be testimonial unless they are sworn certificates.

The Stuart dissent is a clear and well warranted plea for a clarification of the Williams decision. Significantly, it places Justice Gorsuch on the side of those who oppose insulating the authors of a laboratory report from cross-examination simply by presenting those reports as the basis for some other expert's opinion. Laboratory reports raise special issues for Confrontation Clause jurisprudence, but they should be faced more directly. See Jennifer L. Mnookin & David H. Kaye, Confronting Science: Expert Evidence and the Confrontation Clause, 2012 Sup. Ct. Rev. 99 (2013).