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Barack Obama, Sir Walter Raleigh and Forensics (or The 2008 Election and the Future of the Right of Confrontation)
Jules Epstein Report.

Jules Epstein, Professor

In 2004, the United States Supreme Court invoked the trial of Sir Walter Raleigh in its redefining of the right of confrontation as applied to using hearsay in criminal trials. Raleigh was convicted by hearsay statements from a witness he could not confront, and the Court lamented this as “notorious.” For the Court in Crawford v. Washington1, the historic roots of the right of Confrontation were a rejection of such procedures, and a mandate that “testimonial” hearsay be inadmissible unless the original declarant was now in court or was now unavailable to testify and there had been the opportunity for cross-examination when the statement was made.

The relevance of Crawford (and Raleigh’s travails) to forensics can be found in the 2009 Melendez-Diaz2 decision, where the Court applied the Crawford test for admitting hearsay in criminal trials and barred use of affidavits reporting lab results. In so ruling, the Court emphasized two aspects of the lab reports - they were sworn affidavits, a quintessential form of giving testimony deemed to be at the core of the Confrontation guarantee; and their content was “the precise testimony the analysts would be expected to provide if called at trial.”3

Melendez-Diaz may have far-reaching consequences. First, the Court’s slim majority declined to accept all lab reports as infallible, or even base line reliable. “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.”4 Whether this observation will inform other decisions can only be guessed. Second, although addressing specifically a sworn affidavit, Melendez-Diaz has been viewed nationally as applying to a variety of unsworn lab reports.5

Finally, the Court did approve “notice and demand statutes [which] require the prosecution to provide notice to the defendant of its intent to use an analyst's report as evidence at trial, after which the defendant is given a period of time in which he may object to the admission of the evidence absent the analyst's appearance live at trial.”6

The Melendez-Diaz fall-out is even more complicated, as it fails to resolve questions typical in forensic evidence cases:

  • May a lab supervisor with some oversight responsibilities testify to the test results?7
  • May an expert who did not conduct the analysis rely on the analyst’s findings to generate an opinion?8
  • What is the process where multiple analysts contribute to an examination?
  • Where one analyst performs the examination but a second verifies it, may the examining analyst testify that “my results were verified by someone else in the lab?”
And what do all of this, and Sir Walter Raleigh, have to do with Barack Obama? What seemed to be an initial consensus within the Court as to the ‘new’ meaning of the Confrontation guarantee may be splintering. Crawford itself commanded seven votes, and the first post-Crawford decisions, Davis9 and Hammon10, had eight. But in a subsequent Crawford decision, Giles v. California11 , the vote was six to three; and in Melendez-Diaz, four justices dissented.

That slim majority is, colloquially speaking, up for grabs. One of its members was Justice Souter, now replaced by Justice Sotomayor; and another member, Justice Stevens, is elderly. The Court returns to the meaning and impact of Crawford this term in another lab reports case, Cypress v. Virginia12, which will be argued in January and decided by June (and in which an amicus brief filed by 26 states and Washington, D.C., urge that Melendez-Diaz be overruled). Judicial selections by President Obama, either the one already made or any in the future, may confirm or reconfigure the Court’s treatment of forensic reports and testimony.

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2 Id.
3 Id.