Lauren McLane (University of Wyoming College of Law) has posted Confronting the Twenty-First-Century Marian Examination (82 Albany Law Review 949 (2019)) on SSRN. Here is the abstract:
Today, forensic evidence has increasingly become a key and powerful witness against the accused in criminal trials. In the Sixth Amendment Confrontation Clause, our Framers meant to create a safeguard that would forever test the reliability of evidence introduced against a defendant. As Justice Scalia reminded us, in Crawford v. Washington, “To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Nonetheless, courts across our nation routinely reject such reliability testing in denying confrontation challenges related to forensic evidence, particularly in multi-analyst forensic disciplines, such as alcohol breath testing, toxicology, and DNA testing. In large part, this is because our lower courts, after the United States Supreme Court’s fractured opinion in Williams v. Illinois, were left to their own devices in application of confrontation clause jurisprudence to forensic evidence.
Although our criminal justice system has evolved into a system that encompasses not only “conventional witnesses,” but also science and its process as an important witness, confrontation clause analysis has remained relatively stagnant. The application of the “conventional witness” confrontation rules — first borne out of Crawford v. Washington and Davis v. Washington, and then later refined in Michigan v. Bryant and Ohio v. Clark — by lower courts in the forensic evidence context has been unpredictable and, often, arbitrary. Courts have condoned the insulation of forensic evidence by denying the right to cross-examine the analyst who performed the scientific testing, hailing science as inherently reliable. In this way, our courts have returned confrontation clause analysis to the Sixteenth-Century-Marian Examination, such as the process relied upon to convict Sir Walter Raleigh in 1603; this historical disastrous result served as the primary impetus for our Framers’ adoption of the clause.
The Confrontation Clause and its guarantee of cross-examination of witnesses against the accused serves as a primary shield against unreliable and flawed forensic evidence. And the history of forensics in the courtroom undeniably supports that science is far from infallible. Without an entity such as the National Commission on Forensic Science, decommissioned by former Attorney General Jeff Sessions in 2017, an accused’s right to confrontation remains an indispensable check on the reliability of forensic evidence during a criminal trial.
In the Twenty-First Century, as the use of scientific evidence rapidly grows in criminal trials, courts and practitioners are in need of a new confrontation clause approach for such evidence. At first blush, Justice Thomas’s “formality and solemnity” requirement for confrontation clause applicability appears too narrow; however, a modification of this approach as applied to forensic evidence should be adopted by the United States Supreme Court. Justice Thomas’s approach needlessly over-emphasizes the form of evidence, such as whether it is an affidavit or declaration, in deciding the reach of the Confrontation Clause. A closer look at history demonstrates that our Framers were far more concerned with a process that insulated evidence from reliability testing than the mere form of evidence. Indeed, it was not the mere form of Sir Walter Raleigh’s accuser’s examinations or letters used against Raleigh at trial that were egregious as much as it was the process accepted and condoned by the court and its officials during the trial.
Science and its process is nothing if not both formal and solemn. Science is directed and governed by numerous standards, protocols, and procedures. Under a modified version of Justice Thomas’s “formality and solemnity” approach, where process over mere form is emphasized, forensic evidence is formal and solemn, and within the reach of the Confrontation Clause. Therefore, the performing analyst or an observer to the scientific testing must be confronted. Our Supreme Court should adopt this modified approach in the forensic evidence context, providing decisive and predictable guidance to our lower courts, at its earliest opportunity.