Williams v. Illinois, JUN12, USSC No. 10-8505: (1) FOUR JUSTICES ONLY: At least in bench trials, inadmissible out of court statements (DNA analysis) which an expert talks about in explaining the basis for his opinion are not offered for their truth and therefore are not subject to the confrontation clause. NOTE: This relies strongly on Federal Rule 703 which does not track with Virginia Rule 2:703(b). (2) FOUR JUSTICES ONLY: Statements which fall under the confrontation clause have two characteristics. (a) They involve out of court statements having a primary purpose of accusing a defendant of a crime. (b) They involve formalized statements such as affidavits, prior testimony, or confessions. (3)(a) A DNA report from before the offender is identified is non-testimonial because its primary purpose was not to obtain evidence for the trial of the offender, but to catch an offender. (b) DNA evidence is not inherently inculpatory; it exculpates everyone but the offender. (c) Requiring the technicians who worked on preparing a profile to testify is economically expensive and would discourage the use of DNA in favor of less reliable evidence. (d) The defendant is not prejudiced because he can subpoena the technicians who prepared the profile. (4) JUSTICE THOMAS ONLY, rejecting both above but concurring: (a) A rule of evidence does not trump the right to confront, especially one that was created contrary to the common law rule it replaced. (b) The confrontation clause regulates only those statements with indicia of solemnity so that they are formalized testimonial materials, including depositions, affidavits, prior testimony, or statements from formalized dialogue such as custodial interrogation.

(b) Criminal cases. In criminal cases, the opinion of an expert is generally admissible if it is based upon facts personally known or observed by the expert, or based upon facts in evidence.

Rule of the case:  A non-formalized statement which has as its primary purpose the catching of an offender who has not been specifically identified when the testing is done can be admitted at trial.