The right to confront

Last week, the South Carolina Supreme Court overruled one of its long-standing precedents regarding the admissibility of expert reports when the expert who prepared the report does not testify at trial. State v. English, Op. No. 28206 (S.C. Sup. Ct. Filed June 5, 2024) (Howard Adv. Sh. No. 21 at 10). In doing so, the Court elected to continue following the lead set by the U.S. Supreme Court in analyzing these kinds of issues. The case involves the intersection of several moving targets in the evidentiary world of criminal cases – hearsay, the Confrontation Clause, and expert opinion testimony.

Hearsay, the confrontation clause, and the problem with experts

Hearsay may be the most universally known legal objection by the general public. It’s also probably the most universally misunderstood. In fairness, the rule is not simple. Many lawyers don’t even grasp the basic rule, let alone its complex intricacies. Treatises could be written about hearsay and its innumerous exceptions and applications but suffice it to say here that, generally speaking, a witness in court cannot testify as to what they heard another person say. This includes written statements.

In addition to the general rule against hearsay, the Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” South Carolina has a very similar provision in its constitution as well in article 1, section 14. This is commonly referred to as the Confrontation Clause. While hearsay and the Confrontation Clause have some overlap, they are distinct rules that serve different purposes. For example, hearsay applies in all types of cases but the Confrontation Clause applies only in criminal cases. And the Confrontation Clause does not include a litany of exceptions like the rule against hearsay.

Expert witnesses also occupy a unique space under both federal and state evidentiary rules. Experts are permitted to offer opinion testimony which is frequently not allowed for other witnesses. And Rule 703, of both the South Carolina and Federal Rules of Evidence allows experts to rely on inadmissible hearsay in testifying to their opinions. This creates the potential for massive Confrontation Clause violations where experts may be allowed to backdoor damning evidence against a criminal defendant of which they have zero personal knowledge.

South Carolina’s forgotten Confrontation Clause case

In State v. James, 255 S.C. 365, 179 S.E.2d 41 (1971), a woman was convicted of poisoning her husband at their family Christmas dinner by putting arsenic in his food. After the victim was allegedly poisoned, he was treated at a hospital in Greenville. Doctors there took a urine sample and sent it to California for chemical analysis. This analysis showed arsenic in his urine. The defendant objected to the Greenville doctors testifying about the results of the test on hearsay grounds because the doctors testifying were not the doctors who conducted the analysis. The trial judge allowed the results in over the defendant’s objection.

The South Carolina Supreme Court held that the results of the urine test were not admissible because they were not substantiated by the person who conducted the test. The Court reasoned that “the effect of their admission would be to allow a witness to testify without being subject to cross examination, and thus deprive the accused of his constitutional right to be confronted with and to cross examine the witness against him.” 

The rule in James was a sensible one. A witness – including an expert witness – should not be allowed to testify in a criminal case about a report that includes opinions or conclusions drawn by another person because the person who created the report should be subjected to cross examination at trial. This is a quintessential constitutional right of a defendant in a criminal case and should not be thwarted by the rules of evidence.

SCOTUS' Confrontation Clause jurisprudence

The Supreme Court of the United States, beginning with the landmark decision of Crawford v. Washington, made up a new concept when analyzing the Confrontation Clause where they evaluate whether the out-of-court statements made by a non-testifying witness are “testimonial” or “nontestimonial.” Now even the most elementary reader will immediately recognize that all statements made out of court are nontestimonial because, you know, they aren’t in court. But of course, that is not the line the Supreme Court drew.

The Supreme Court, with all due respect to them, went off the rails two years after Crawford when it attempted to explain the difference between testimonial and nontestimonial hearsay in Davis v. Washington. In Davis, SCOTUS came up with this utterly nonsensical explanation:

“Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

Davis, 547 U.S. at 822.

Three years after Davis, the Supreme Court slightly redeemed itself by holding in Melendez-Diaz v. Massachusetts that the results of a drug test are not admissible unless the person who actually performed the analysis testified in court and is subject to cross examination. Ahh. This makes good sense. In Melendez-Diaz, the government had to prove that the white powder found in the defendant’s possession was cocaine. But whether a white powder is cocaine or not is a matter of expert opinion. And the defendant has an absolute right under the Confrontation Clause to cross examine the expert who analyzed the substance and opined that the substance was in fact cocaine.

But in several more subsequent decisions SCOTUS continued to muddy things up in expounding on its “primary purpose” framework for determining what should have been an irrelevant question anyway – whether the out-of-court statement is “testimonial.” South Carolina has continuously followed this framework in many of its Confrontation Clause cases and has largely ignored its previous decision in State v. James.

State v. English

This was a horrible case of child sexual abuse. The minor victim was abused when she was only six years old by both her father (English) and her mother’s boyfriend (Stroman). After the victim told her mom she was being sexually abused by English, her mom took her to a hospital where she tested positive for gonorrhea. After the victim tested positive for gonorrhea, Stroman and English both voluntarily went and got tested for STDs. Stroman tested negative and English tested positive.

At trial, the State sought to introduce the results of all three STD tests pursuant to Rule 803 (6) of the South Carolina Rules of Evidence, which is the business records exception to the rule against hearsay. The defense objected under State v. James. The trial court allowed the tests to come into evidence under the business records exception.

The South Carolina Supreme Court seized on the opportunity and overruled James deciding that it had been abrogated by the U.S. Supreme Court’s opinions that created the testimonial v. nontestimonial framework. And in applying this framework to the case before it, the Court framed the question as whether or not a reasonable person preparing the report – the results of the STD tests – would have believed that the report would be used in a criminal prosecution. And while this framing might be consistent with the U.S. Supreme Court’s line of Confrontation Clause cases, it is a dangerous road to go down.

The Court in English decided that a reasonable person preparing the reports of the STD tests of English and Stroman would not have believed they would be used for anything other than medical diagnosis which made them nontestimonial and therefore admissible. With all due respect to the medical profession, the reports that are generated for purposes of medical diagnosis are frequently flawed and incorrect. If these reports are considered nontestimonial and not subject to the Confrontation Clause, many criminal defendants will be robbed of their constitutional right to confront and cross examine the witnesses with the most damning evidence against them.

Conclusion

The judicial system should not blindly accept reports of non-testifying witnesses simply because they were made for the purposes of medical diagnosis. But in finding such a report is nontestimonial under Crawford and its progeny, the likely effect of the Court’s decision in English will be that medical reports will be admitted in blatant violation of the confrontation clause under the fiction that such reports are nontestimonial because they were prepared for medical and not legal purposes.

adam@ruffinappeals.com

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