I recently read Laird Kirkpatrick’s The Admissibility of Forensic Reports in the Post-Justice Scalia Supreme Court.
It’s a short paper about recent U.S. jurisprudence on requiring forensic examiners to come into court and be examined on their written reports (i.e., the scope of the Confrontation Clause). I knew, from reading Cheng and Nunn’s recent piece, that this was a controversial area right now, but I didn’t realize how much it was and how much Scalia’s absence would impact the future jurisprudence. I also tend to agree with Cheng and Nunn that I am not sure how much a live witness really adds to such matters, and that I think transparency and openness of the process is more important. Still, this area of law may help determine the admissibility of pre-recorded expert evidence, an area I am very interested in.
It might be useful for me to just summarize the cases reviewed in Kirkpatrick’s article.
Melendez-Diaz v Massachusetts, 557 US 305 (2009): This was a 5-4 decision concerning the constitutionality of a MA law allowing forensic reports to be tendered without calling the analyst who made the report. The instant report was about whether a certain substance was cocaine.
The majority decision, written by Justice Scalia, said that this was a testimonial statement and so it triggered the confrontation clause.
The dissent seemed to be all over the place, saying that maker of the report wasn’t a conventional “accusatory” witness. They also discussed some policy reasons militating in favour of exempting forensic reports, like it not being clear which analyst should appear, logistical difficulties, and the fact that it wouldn’t be hard fro the accused to just subpoena the analyst.
The majority judgment noted previous problems with the state’s forensic scientific evidence, a point I’m glad they drew attention to.
Williams v Illinois, 567 US 50 (2012): This case is even more confusing. It concerned the report from a private DNA testing service (Cellmark) that created a latent DNA profile based on semen found on the complainant. The Cellmark analyst was not called to testify, which drew Confrontation Clause concerns.
A four justice plurality allowed the evidence because it was not being offered for the truth of its contents and because it was not accusatorial. Justice Thomas concurred but rejected the plurality’s reasons, rather saying the report was not testimonial for lack of formality - it was not certified (I don’t have sufficient background in US evidence law to follow this, but it seems rather technical).
The dissent would have held that the Confrontation Clause was violated. In particular, there was no chance to examine the Cellmark analyst on his or her proficiency.
Stuart v Alabama, 139 S Ct 36 (2018): The Supreme Court recently denied cert in this case, but the two dissenting judgments are very interesting.
Justice Gorsuch (joined by Justice Sotomayor) discussed the problems with forensic science and the importance of testing it in court. He said this was clearly admitted for the truth of its contents (unlike the plurality in Williams) and I agree . He also did not agree with Justice Thomas’s concurrence about certification.
As a result of this cert decision, it seems like application of the confrontation clause to forensic reports is in considerable doubt with Gorusch perhaps taking up Scalia’s mantle
I’d like to see a future decision take a careful look at exactly what adversarial testing might really reveal about a forensic report. And can some sort of controlled transparency reveal the same information more efficiently, much the way the open science movement is working to revealing the uncertainties in the scientific process?