The Court today (4-1-4) (Justices Alito, Roberts, Kennedy, and Breyer), in Williams v. Illinois, No. 10-8505, upheld an Illinois state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, though defendant had no opportunity to confront the actual analysts, where the statements are related by the testifying expert for the purpose of explaining the assumptions on which the expert’s opinion rests. The Court held such statements (test results) are not offered for their truth and fall outside the scope of the Confrontation Clause. Moreover, the report was not the type of statement (such as affidavits, depositions, prior testimony, and confessions), that the Confrontation Clause was originally understood to reach. The fifth vote, Justice Thomas, found that the reports had been admitted for their truth, but were not "testimonial" for purposes of the Confrontation Clause.
Justice Kagan’s dissent (joined by Justices Scalia, Ginsburg and Sotomayor) points out that there is no majority holding on why, contrary to Melendez-Diaz and Bullcoming, such a report should be admissible. The Court, she concludes, has approved introduction of testimony clearly prohibited by the Confrontation Clause and "left significant confusion in their wake."