Earlier this summer, I wrote about the North Carolina Supreme Court‘s handling of the doctrinal mess made by the U.S. Supreme Court‘s fractured opinions in Williams v. Illinois. Well, on September 12, the D.C. Court of Appeals announced its latest solution to this problem, in Jenkins v. United States — and it turns out the approaches of NC and DC are basically polar opposites.
In my earlier post, I reviewed the Supreme Court’s 4-1-4 breakdown in Williams and concluded that the North Carolina court had followed the spirit of four Justices, and as a result, probably stretched the law to allow testimony about drug analysis that five Justices would have forbidden.
On the other hand, the new D.C. opinion starts with a case that is, in many important ways, just like Williams: the evidence included DNA profiles that were produced before police had identified the defendant as a suspect. (The twist is that the police did have a suspect at the time — not the defendant, but another guy whom the DNA exonerated.) It’s almost certain from Williams that five Justices would say that this important out-of-court evidence is fair game, if they were faced with the question. But the defendant argued this evidence should not be admitted, Williams notwithstanding, and the D.C. court had to decide what effect the Supreme Court’s fractured opinion in Williams had on existing law.
The answer in D.C. turns out to be, none at all (unless you have a case almost identical to Williams.) When dealing with non-majority opinions, the practice is to try to identify a rule that gives the result on the narrowest possible grounds identified by the concurrence. In other words, how do the plurality and concurring opinions overlap?
Reading the plurality and concurrence in Williams, the D.C. court (through Judge Oberly) decided they don’t overlap at all. Williams, then, did not change existing law. As a result, the court announced it would mostly stick with the bright-line rule that existed pre-Williams (essentially the approach of the Williams dissent.) If the government wants to introduce scientific evidence, call the analyst who performed the test.
This drew a dissent (on many grounds) from Judge Thompson. In important part, she wrote that the D.C. court’s previous post-Williams decision (Young) did not forbid out-of-court testimony in circumstances like this. (The majority described Young as stating a rule that gave a “sufficient” condition for what counts as “testimonial,” but not a “necessary” one.) And she pointed out that five Justices of the Supreme Court would undoubtedly allow this testimony, albeit for various reasons. But in the end, it was the “various reasons” that troubled the majority. If there’s no single reason, then there’s no rule for the lower courts to apply.
Paradoxically, though DC and NC have reached totally different results, both of their approaches also seem to violate the rule of “counting to five.” (Not a real “rule” — as this case shows, the courts are not actually supposed to speculate on what five Justices would rule, but rather are supposed to follow existing rules as best they can.) And this paradox perfectly illustrates the importance of the Supreme Court providing clear guidance (or at least, majority opinions) on important questions. Without this guidance, results are unpredictable — and the meaning of the United States Constitution depends on what state or territory or circuit you live in.