Dispatches from the Creation Wars

The Supreme Court ruled 5-4 that the Sixth Amendment’s Confrontation Clause includes the right to cross examine forensic experts when they testify in a trial. It’s the makeup of the two sides that is really interesting. The majority opinion was written by Justice Scalia and joined by Thomas, Ginsburg, Souter and Stevens. The minority was Kennedy, Breyer, Alito and Roberts. Full ruling here (PDF).

In the case, the prosecution used results from a state crime lab that did tests concluding that a substance in the case was cocaine. Under Massachusetts law, such test results are testified to in front of a notary public and then admitted to court as prima facie evidence, but the defense argued that they should have access to those who performed the test to cross examine them. Scalia wrote:

The admission of the certificates violated petitioner’s SixthAmendment right to confront the witnesses against him.

(a) Under Crawford, a witness’s testimony against a defendant isinadmissible unless the witness appears at trial or, if the witness isunavailable, the defendant had a prior opportunity for cross-examination. The certificates here are affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause, id., at 51. They asserted that the sub-stance found in petitioner’s possession was, as the prosecution claimed, cocaine of a certain weight–the precise testimony the analysts would be expected to provide if called at trial. Not only were the certificates made, as Crawford required for testimonial statements,”under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial,” but under the relevant Massachusetts law their sole purpose was to provide prima facie evidence of the substance’s composition, quality, and net weight. Petitioner was entitled to “be confronted with” the persons giving this testimony at trial.

The arguments advanced to avoid this rather straightforward application of Crawford are rejected. Respondent’s claim that the analysts are not subject to confrontation because they are not “accusatory” witnesses finds no support in the Sixth Amendment’s text or in this Court’s case law. The affiants’ testimonial statements were not “nearly contemporaneous” with their observations, nor, if they had been, would that fact alter the statements’ testimonial character. There is no support for the proposition that witnesses who testify regarding facts other than those observed at the crime scene are exempt from confrontation. The absence of interrogation is irrelevant; a witness who volunteers his testimony is no less a witness for Sixth Amendment purposes. The affidavits do not qualify as traditional of-ficial or business records. The argument that the analysts should not be subject to confrontation because their statements result from neu-tral scientific testing is little more than an invitation to return to the since-overruled decision in Ohio v. Roberts, which held that evidence with “particularized guarantees of trustworthiness” was admissible without confrontation. Petitioner’s power to subpoena the analysts is no substitute for the right of confrontation.Finally, the requirements of the Confrontation Clause may not be relaxed because they make the prosecution’s task burdensome. In any event, the practice in many States already accords with today’s decision, and the serious disruption predicted by respondent and the dissent has not materialized.

Scalia’s opinion does note recent studies that show a disturbingly high level of error and fraud occurring in many crime labs and how allowing cross examination can help reveal those things to the court:

Respondent and the dissent may be right that there are other ways–and in some cases better ways–to challenge or verify the results of a forensic test. But the Constitution guarantees one way: confrontation. We do not have license to suspend the Confrontation Clause when a preferable trial strategy is available.

Nor is it evident that what respondent calls “neutral scientific testing” is as neutral or as reliable as respondent suggests. Forensic evidence is not uniquely immune from the risk of manipulation. According to a recent study conducted under the auspices of the National Academy of Sciences, “[t]he majority of [laboratories producing forensic evidence] are administered by law enforcement agencies, such as police departments, where the laboratory administrator reports to the head of the agency.” National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward 6-1. And “[b]ecause forensic scientists often are driven in their work by a need to answer a particular question related to the issues of a particular case, they sometimes face pressure to sacrifice appropriate methodology for the sake of expediency.” A forensic analyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution.

Confrontation is one means of assuring accurate forensic analysis. While it is true, as the dissent notes, that an honest analyst will not alter his testimony when forced toconfront the defendant, the same cannot be said of the fraudulent analyst. Like the eyewitness who has fabricated his account to the police, the analyst who provides false results may, under oath in open court, reconsider his false testimony. And, of course, the prospect of confrontation will deter fraudulent analysis in the first place.

Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials. One commentator asserts that “[t]he legal community now concedes, with varying degrees of urgency, that our system produces erroneous convictions based on discredited forensics.” One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.

But in a rhetorical flourish typical for Scalia — one reason why he is always the most interesting and entertaining writer on the court — the majority opinion says that the result would be the same even “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”

An excellent and important ruling by the court.


  1. #1 Rieux
    June 29, 2009

    Ed, quoting Scalia:

    “if all analysts possessed the scientific acumen of Mme. Curie and the veracity of Mother Theresa.”

    In light of the fact that Teresa (did Scalia really misspell her name? Several sources seem to indicate he did) spent her entire career preaching the glory of God but then turned out to have been a tormented doubter the entire time, perhaps “veracity” is not the virtue that is best ascribed to her.

    (Of course, many have questioned whether Teresa was particularly virtuous at all, but then this is Nino Scalia–not exactly your average iconoclastic atheist–we’re talking about here.)

New comments have been disabled.