The confrontation clause does not prohibit disclosure of nontestimonial, out-of-court statements in a DNA laboratory report through testimony by an expert who did not prepare the report. In petitioner’s bench trial for rape and other offenses, an expert testified over a confrontation clause objection, based on a DNA profile that had been produced by an outside laboratory (Cellmark), that petitioner’s DNA contained in a computer data bank matched the DNA profile found in semen samples taken from the victim. In a fractured decision (four-one-four), the U.S. Supreme Court held that the disclosure of Cellmark’s out-of-court statements through expert testimony did not violate the confrontation clause. A majority (J. Thomas and the plurality) concluded that the statements in the Cellmark report were nontestimonial but for different reasons. Justice Thomas concluded that Cellmark’s report was nontestimonial because it lacked the solemnity of an affidavit or deposition. According to the plurality, the clause prohibits use of out-of-court statements that have the primary purpose of accusing a targeted individual of a criminal offense. Such statements are generally formalized in some manner (i.e., depositions, affidavits, confessions). Here, the primary purpose of the Cellmark report was to assist police in apprehending a rapist; it was not created to accuse petitioner or to create evidence for use at trial. The dissent disagreed, concluding that the analyst who generated Cellmark’s report became a witness whom the petitioner had a right to confront when the state introduced the substance of the report into evidence through an expert witness. [Editor’s note: Footnote 5 of Justice Thomas’ decision states that the confrontation clause also reaches the use of technically informal-statements when used to evade the formalized process.]

Out-of-court statements in a DNA laboratory report that are introduced to explain the basis of an expert’s opinion are introduced for their truth. A majority of the court (J. Thomas and the dissent) held that expert basis testimony is admitted for its truth and may implicate the confrontation clause. Both Justice Thomas and the dissent concluded that there is no meaningful distinction between disclosing an out-of-court statement so the fact finder may evaluate an expert’s opinion and disclosing the statement for its truth. To determine the validity of the expert’s opinion, the fact finder must assess the truth of the out-of-court statements on which it relies. Here, the expert’s opinion that petitioner’s DNA profile matched the DNA profile derived from the victim’s vaginal swabs relied on Cellmark’s out-of-court statements that the profile it reported was in fact derived from the victim’s swabs and not another source. The validity of the expert’s opinion ultimately turned on the truth of Cellmark’s statements. The plurality disagreed, concluding that statements from the Cellmark report were not admitted for their truth. The plurality did acknowledge, however, that the dissent’s argument would have force if the petitioner had a jury trial instead of a bench trial. Had this been a jury trial, the portion of the expert’s testimony that identified the DNA profile as having been found in semen from the victim’s vaginal swabs would have been objectionable because a jury could have viewed this testimony as proof that the DNA profile was derived from a sample taken from the victim.