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The Case of the Unexamined Examiner

Yesterday the California Supreme Court decided a trio of cases trying to make sense out of last term's splintered U.S. Supreme Court decision in Williams v. Illinois.  That case and yesterday's trio involve testimony of a forensic expert relying on lab work done by someone else, and the someone else does not testify and cannot be cross-examined.  In Williams, the high court split 4-1-4, with the plurality and Justice Thomas agreeing there was no violation but for different reasons.

The California decisions are People v. Lopez, S177046, People v. Dungo, S176886, and People v. Rutterschmidt, S176213.

When the high court is split, a precedent is established according to the narrower of the rules set out in opinions concurring in the result.  This is the Marks rule.  However, when neither is identifiably narrower than the other, but rather they come to the same conclusion by entirely different paths, that rule is not particularly useful.

Justice Chin, in his concurring opinion in Dungo, sets out an approach I think is correct.  A precedent is set by the outcome of the case on the basis of its material facts.  If the case now before the court meets the criteria that resulted in the precedent being decided the way it was, then the precedent controls.  In this case, if the evidence has both the qualities that caused the Williams plurality to find it admissible and the qualities that caused Justice Thomas to find it admissible, then it is admissible under the Williams precedent.  Justice Liu, in his dissent in the Lopez case, does not agree with this approach.

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