Federal Corner: What Does ‘Williams’ Tell Us? – By F. R. Buck Files Jr.


On occasion, the Supreme Court will tease us by handing down a three-line opinion that does not give us guidance but only raises questions. That is what occurred on October 1, 2012, when the Court wrote, “The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of Williams v. Illinois, 132 S.Ct. 2221 (2012). Shanton v. United States, __S.Ct.__, 2012 WL 1985502 (2012).

Because the Court cited Williams, we know that Shanton involves a confrontation issue that is found in an unpublished per curium opinion of the Fourth Circuit. [Panel: Circuit Judges Wilkinson, King, and Senior Circuit Judge Hamilton]. United States v. Shanton, __ F.3d __, 2012 WL 1985502 (2012). The opinion reads, in part, as follows:

[The Fourth Circuit’s Overview of the Case]

After a jury trial, David Wilbert Shanton, Sr., was convicted of two counts of armed bank robbery and related firearm offenses. On appeal, Shanton argues that (1) the district Court erred admitting testimony of a DNA expert without requiring the testimony of those persons involved in conducting that DNA testing, and (2) the Court erred by ordering that he serve a consecutive ten year sentence for the first of his two 18 U.S.C. § 924(c) (2006) convictions. Finding no error, we affirm.

[The Confrontation Issue]

At trial, Jennifer Luttman, a forensic examiner for the FBI, and an expert in the area of forensic DNA analysis, testified that, in her opinion, the results of DNA testing performed by her staff on a piece of gum found at one of the crime scenes showed the presence of DNA belonging to Shanton. Shanton argues that because Luttman was relying upon data generated by members of her staff, and that the data was testimonial, it was incumbent upon the Government to present as witnesses those persons who conducted the tests, citing Melendez–Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

      We remember that Williams was decided only five months ago. The Court held that an expert’s testimony referring to a DNA profile having been produced from semen found on the victim did not violate the Confrontation Clause. Williams is another one of those “gloriously divided Court” cases. Justice Alito authored the opinion in which he was joined by Chief Justice Roberts and Justices Kennedy and Breyer. Justice Breyer filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment. Justice Kagan filed a dissenting opinion in which she was joined by Justices Scalia, Ginsburg and Sotomayor. Justice Alito’s opinion reads, in part, as follows:

[The Supreme Court’s Overview of the Case]

In this case, we decide whether Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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 reliance on older, less reliable forms of proof.

[The Confrontation Issue]

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 petitioner’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 admitted 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 identifying 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 testimony violated the Confrontation Clause as interpreted in Crawford.

[The Petitioner’s Argument]

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, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). For more than 200 years, the law of evidence has permitted the sort of testimony that was given by the expert 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 answer 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 evidence.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, 330, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009) (Kennedy, J., dissenting).

[The Issue Before the Supreme Court]

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.

 [The Supreme Court’s Conclusion]

We now conclude that this form of expert testimony does not violate the Confrontation Clause because that provision 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 assumptions 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 conclude that the expert’s testimony did not violate the Sixth Amendment.

[A Second Basis for the
Supreme Court’s Conclusion]

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 confessions, 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 evidence 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 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. ____, 132 S.Ct. 716, 181 L.Ed.2d 694 (2012). The Confrontation Clause does not mandate such an undesirable development. This conclusion will not prejudice any defendant 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.

My Thoughts

  • So what do we conclude after looking at Shanton and Williams? It appears that the distinction between Shanton and Williams is that Sandy Williams was convicted after a bench trial was held in the Circuit Court of Cook County, Illinois. David Wilbert Shanton was convicted after a jury trial in the United States District Court for the District of Maryland.
  • In Williams, Judge Alito noted,

    Under both the Illinois 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. 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, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) (per curiam). U.S. v. Williams, 132 S.Ct. 2221, 2235-2236 (2012).

  • Is it possible that we are going to have one confrontation rule for defendants in bench trials and another for defendants in jury trials? I suppose that we’ll find out later this year.
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a charter member and former director of the Texas Criminal Defense Lawyers Association. He is a member of TDCLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TDCLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. He practices in Tyler with the law firm of Files Harrison, P.C., and can be reached at or (903) 595-3573.

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