Confrontation Clause

  • June 19, 2012
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law. Garrett’s book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, is coming out in paperback later this summer, and updates are at the book’s Facebook page here.

    Yesterday the Supreme Court Justices splintered over the meaning of the Confrontation Clause in cases involving forensic DNA testing – making a muddle of an important problem and with few discernible arguments that hold much water. The case involved a sexual assault, but the Illinois State Police did not test crime scene evidence – they tested a sample of blood from the suspect and obtained his DNA profile. The evidence from the rape kit was DNA tested by an outside lab, Cellmark. The prosecutor did not call the Cellmark technician at trial, the one who did the most important DNA testing in the case, the testing that identified the DNA profile from the semen of the assailant. Instead, the prosecutor called the crime lab technician who described the defendant’s profile – and sneaking the match in through the back door, by having that technician say how it matched the profile identified in the Cellmark report. The DNA was central evidence at trial, although the victim also identified the defendant in a line-up. The defense had no opportunity to cross-examine the Cellmark analyst who did the crucial DNA work.

    The case called for a straightforward application of the Court’s recent precedents in the Confrontation Clause area. Just last year, the Court held in Bullcoming v. New Mexico, a case where DUI test results were not presented by the technician who did the tests, that this was a Confrontation Clause problem. The defense must have an opportunity to cross-examine the person who did the relevant work. That decision reinforced the Court’s 2009 decision Melendez-Diaz v. Massachusetts, stating that the Confrontation Clause requires live testimony, not merely introduction of a certificate stating the conclusion of a forensic test used to identify drugs. 

    The new answer to the question of whether a forensic DNA analyst must testify is “maybe.” 

  • December 6, 2011
    by Jonathan Arogeti
    The Supreme Court heard oral arguments earlier today on a case that could have a “major effect” on criminal proceedings, says Erwin Chemerinsky, the dean at the University of California, Irvine School of Law in an article for ABA Journal.
    Commentators say that in Williams v. Illinois, the Court will for at least the fourth time in the last decade seek to balance the constitutional principle for an accused “to be confronted with the witness against him” and the statutory principle on expert testimony.
    During the ACS Supreme Court Preview, Professor Cynthia Jones of American University Washington College of Law highlighted the case, saying, “The Confrontation Clause and the rules on expert testimony clash in … Williams v. Illinois. That gives the Supreme Court an opportunity to tweak the Confrontation Clause analysis in light of its rules on expert evidence under rule 703.”
    In a preview for SCOTUSblog, Supreme Court litigator Tom Goldstein gives context for the case, writing, “An expert testified about the results of a DNA test conducted by an analyst, but the DNA test was not admitted.  The Supreme Court of Illinois held that there was no constitutional violation. The U.S. Supreme Court granted certiorari to resolve a conflict in the lower courts over the Confrontation Clause’s application in these circumstances.”
    The Court held in Crawford v. Washington that testimonial statement cannot come from unavailable witnesses. In subsequent cases --  Melendez-Diaz v. Massachusetts and Bullcoming v. New Mexico -- the Court followed the precedent set in Crawford and sided with the respective petitioners to strike down the lower court decisions because the expert did not testify.
    But what if the expert was unavailable to testify?
  • June 24, 2011
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law. You can follow updates related to Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” at the book’s Facebook page here.

    Yesterday, the U.S. Supreme Court in Bullcoming v. New Mexico ruled that it violates the Confrontation Clause of the Sixth Amendment to permit a forensic report to be introduced at trial by putting on the stand a crime lab analyst who did not do the actual work in the case. The Court, in a majority opinion authored by Justice Ginsburg, reinforced the Court’s 2009 decision in Melendez-Diaz v. Massachusetts, by ruling that putting on such “surrogate testimony” denies the defense an opportunity for cross-examination. Some labs have long put on the stand forensic analysts who were not involved in the particular work done in a person’s case. Perhaps the analyst who actually did the work had left the office. Perhaps that analyst was overworked.  Or perhaps one analyst in the lab was especially effective in front of a jury.

    Donald Bullcoming was arrested for driving while intoxicated, after rear-ending another pick-up truck. The central evidence against him at trial was a lab report, a “Certificate of Analyst,” stating that his blood alcohol level was well above the legal limit. The prosecution did not call the analyst who actually tested Bullcoming’s blood sample – he had been placed on unpaid leave for some undisclosed reason. (This could raise a red flag – though perhaps the reason for the unpaid leave was entirely unremarkable.) The State instead called someone else from the lab who was familiar with their testing procedures.