The US Supreme Court is currently taking merits briefs in Williams v. Illinois, the most recent in a series of modern high court cases seeking to re-establish the vitality of the Confrontation Clause. Prior to 2004, a court’s hearsay-exception analysis turned on the question of trustworthiness, asking if the circumstances of the proffered out-of-court statement bore “adequate indicia of reliability” to overcome a criminal defendant’s right to confront the declarant in court. Under this test, the rules of evidence offered various routes around the basic principle excluding hearsay. An evidence professor once told me that if you can’t get an apparently honest out-of-court statement into the record, you’re not trying hard enough.

Then, in Crawford v. Washington, the Court shed the old subjective standard in favor a new test: is the statement testimonial? If so, said the Court, the Confrontation Clause of the United States Constitution guarantees a criminal defendant the opportunity to cross examine the declarant. The Court has since held that a testimonial statement is a declaration made with the primary purpose of establishing facts relevant to a future prosecution. Later cases–Davis v. Washington (2006), Melendez-Diaz v. Massachusetts (2009), and Bullcoming v. New Mexico (2011)–applied the Crawford standard to various prosecutorial settings.

In Williams, the Court will presumably deploy its new analytical framework to consider whether a prosecution’s expert witness may offer in-court opinion testimony based on out-of-court declarations. In this sexual assault case, a forensic biologist testified that the defendant’s DNA profile matched the DNA collected from the victim. The defense objected to this opinion testimony because the prosecution did not offer a witness to describe the testing of the collected sample.  The Illinois Supreme Court–hearing the case after the Crawford decision–deemed the DNA test results to be non-hearsay because they were not offered to prove the truth of the matter asserted. Their reasoning seems to consist of a repeated assertion that the test results were not offered to prove the matter asserted, interspersed with citations to pre-Crawford cases that reached the same conclusion in similar circumstances. The opinion did not clear up my impression that the matter asserted was that the sample collected from the victim presented a specific DNA profile, and that the prosecution relied on the test results to prove that assertion. Without that fact, the expert’s opinion is without foundation, and the case should have been dismissed.

The criticism of Crawford and its progeny has focused on systemic difficulties. Various state attorneys general filed an amicus brief in Bullcoming arguing that the new testimony requirements will “pull valuable analysts away from their under-resourced laboratories and into courthouses.” Domestic violence prosecutions have been impacted, now that a victim’s early statements to the police are less likely to find a hearsay exception in the abuser’s trial. And this latest case provides an interesting real-world rebuttal of the Court’s abandonment of the “indicia of reliability” approach. The defendant’s sample and the rape kit specimen were taken at different times and tested at different facilities, so a matching DNA result could not have happened by a mistake in testing; only a vast conspiracy would provide an explanation other than the defendant’s guilt.

But the Court’s new approach seems to follow the philosophy that a government should never find it easy to imprison its citizens. Prosecutions should be expensive, troublesome, and meticulous about the details. Efficient criminal justice systems are the hallmark of totalitarian regimes, not vibrant democracies.