In the Crawford case (2004), the US Supreme Court decided that prosecutors cannot offer testimonial hearsay statements into evidence against defendants who have not had a chance to cross examine the people who made the statements. Subsequent applications of Crawford have been controversial, especially when in the Melendez-Diaz (2009) and Bullcoming (2011) cases the Court decided that reports of tests run by police crime lab analysts are testimonial and therefore inadmissible at trial unless the analysts testify personally. States feel that the decisions will severely undermine their ability to prosecute drug offenders and others whose guilt rests on the results of crime lab testing. Most crime labs are severely under-staffed, so to the extent that analysts have to wait around courthouses waiting to testify, they aren’t available to do their lab work.

The case of Williams v Illinois offers the Court another opportunity to determine the scope of the testimonial concept. In this case, a prosecution expert witness relied on a report prepared by a non-testifying laboratory analyst as a basis for the expert’s opinion that the defendant’s DNA closely matched the DNA found at the scene of a violent sexual assault. The State argues that since the report was not offered into evidence, but rather served only as a basis for the expert’s opinion, the report is not testimonial. The Court will probably decide the case in the first half of 2012. The precise outcome is probably less important than the attitudes towards the concept of testimonial hearsay that the justices express. Prosecutors and defense attorneys will parse their attitudes carefully, looking for hints about the outcomes of future cases.