About kevinburkeaja

Judge Burke is a District Court Judge in Minnesota. In September this year he will become a senior judge. He is a past president of the American Judges Association and currently the AJA treasurer.

The Pandemic Takes A Toll On State Courts

From The Brennan Center:

While almost all state courts closed their doors to the public in March when Covid-19 began to spread across the country, several jurisdictions resumed some in-person proceedings over the summer with certain safety precautions. However, due to the recent spike in Covid-19 cases, some state courts are closing their doors again for the time being.
At least eight states, including TexasIndiana, and New Jersey, are opting to suspend their in-person jury trials until early next year, and at least seven states and Washington D.C. have suspended jury trials indefinitely. For example, in Utah, the state halted a pilot program to hold in person jury trials until 2021. Unlike the beginning of the pandemic, most states have not issued statewide orders regarding court operations, leaving those decisions to local jurisdictions.
Court administrators expect a massive backlog of cases when they eventually resume full in-person operations. For example, Texas would typically hold 186 trials a week prior to the pandemic, but there were only 50 trials held between March and September of 2020. The backlog leaves many defendants awaiting criminal trials to linger in prison, where a person is twice as likely to die from Covid-19 as compared to the general population.

Yes, Courts Can Be NonPartisan

From the Brennan Center:

On December 10, the U.S. Supreme Court rejected a constitutional challenge to Delaware’s partisan balance requirements for its judiciary, holding the lawyer who brought the challenge lacked standing.
The case, Carney v. Adams, involved a challenge to provisions of Delaware’s constitution requiring that no more than a “bare majority” of judges on certain courts belong to the same political party, and for the state’s highest courts, that all judges not in the majority be a member of the other “major party.” The Third Circuit Court of Appeals struck down both requirements last year, finding that the “major party” requirement violated the First Amendment.
Writing for the majority, Justice Breyer said the Court did not consider the constitutionality of Delaware’s partisan balance requirements because the lawyer who brought the challenge was not “able and ready” to apply for the judgeships he claimed he was excluded from. Justice Sotomayor, however, filed a concurrence suggesting the “major party” requirement may be unconstitutional, noting it “arguably impose[s] a greater burden on First Amendment associational rights.”

Avoiding The Collateral Consequences of Incarceration

Jackie Fielding has posted ‘Wreaking Extraordinary Destruction’ : Defendant’s Irreplaceability as Presumptively Reasonable Grounds for Downward Departure in Sentencing (Minnesota Law Review, Vol. 104, No. 5, 2020) on SSRN. Here is the abstract: Despite the media attention afforded to the recent family separation crisis at the southern border of the United States, there is a much more prevalent and common form of family separation: parental incarceration. The United States is the largest incarcerator worldwide, and the surge in the incarceration of women has meant a dramatic increase in the incarceration of parents who are primary caregivers. United States federal sentencing law allows for consideration of family support and caregiving, but such consideration is limited in scope and usage. In the U.S. Federal Sentencing Guidelines, which are not binding but are advisory for federal judges, Section 5H1.6 states that a defendant’s “family ties and responsibilities are not ordinarily relevant” to a downward departure analysis. The current federal sentencing structure in 18 U.S.C. § 3553(a) allows for some consideration of a defendant’s history and characteristics, but judges often employ an analysis similar to the “not ordinarily relevant” inquiry. Unclear parameters for evaluating a defendant’s role as a family supporter and caregiver under these statutes, and inconsistent applications of the “not ordinarily relevant” test, have resulted in disparate outcomes across the country. While numerous solutions have been offered to create better policies, more uniform application, and less unnecessary incarceration of parents, many require too much work for implementation on a mass scale.

This Note advocates for a pattern already employed by several federal courts, in which a defendant’s irreplaceability as a caretaker or provider is the primary factor in a family ties and responsibilities downward departure analysis.By solidifying a presumption that a defendant’s status as an irreplaceable caretaker of dependent(s) is reasonable grounds for downward departure, courts can continue following a path of precedent that works to ensure parents will not be unnecessarily incarcerated, and their children and dependents will not be needlessly separated from their loved ones.

Bail Reform Is Not For The Light Hearted

California Defeated the Bail Ballot, Unsure of What’s Next

The group behind the “no” vote on Proposition 25 wasn’t against it because they like the state’s cash bail system. They just wanted to enact reform from the ground up. But now there’s uncertainty about what happens next.

Jason Pohl, The Sacramento Bee   |   November 6, 2020   |  Analysis

(TNS) — Lex Steppling and his team of criminal justice activists knew they wanted to undo California’s law abolishing cash bail. They said it would merely replace one oppressive system with another, worsen racial inequities and give too much power to algorithms and judges.

They were convinced they were right. But he didn’t think they’d actually defeat Proposition 25 — especially not by a nearly 11-point margin.

“We didn’t expect to win, let alone win by so much,” Steppling said in an interview. “I’m still wrapping my head around that part.”

The victory marked a surprising end to an unlikely marriage between an extreme “abolitionist” wing of the criminal justice reform movement and California’s billion-dollar bail bond industry. Traditionally enemies, together they undid a years-long effort from the California Legislature that could have created one of the most significant justice system changes in a decade.

The longstanding system of cash bail will remain in place indefinitely. As Steppling and others say they plan to push for county-by-county changes, the type of top-down change that would have followed Proposition 25 is on hold as uncertainty sweeps through the now-fractured criminal justice reform movement.

Advocates said Wednesday they were “poised to build our system anew.” But those advocates are facing severe criticism, including from more moderate justice reformers. They’re also feeling the pressure of a familiar problem: Once something is repealed, what exactly do you replace it with — and how?

Steppling is the co-chair of the No on Proposition 25 campaign and an advocate with Dignity and Power Now, a Los Angeles nonprofit that has sued the sheriff’s office over jail conditions, rallied against new jail construction, and pushed for taking funding away from police departments. They want to see radical, grassroots improvements to the justice system.

“Our fixation is not simply on bail,” Steppling said, criticizing the existing power that judges and police have. “We want to make a transformative change that disables the drivers of pretrial incarceration.”

Proposition 25 — and SB 10, the legislation it was a referendum on — came after years of work in the California Legislature to make that change. Besides doing away with cash bail, it would have brought mandatory audits to measure racial biases. The changes, which lawmakers could adjust as needed, could have opened a window into an often opaque system of justice where little information about cash bail bonds is ever made public.

By Thursday evening, roughly 55.6 percent of the counted vote was in support of keeping the current cash bail system indefinitely. No county south of Santa Cruz in the Bay Area supported Proposition 25. It was a resounding defeat and in sharp contrast to two other justice system measures that passed — one expanding voting rights to people on parole and another blocking tough-on-crime proponents’ plan to make stiffer penalties for low-level offenses.

“It was a case of the kind of far left and far right converging and not a lot of space left in the middle to get rid of cash bail,” said Keramet Reite, a criminologist at UC Irvine.

Proposition 25’s failure will likely cast a long shadow on justice reform in California. Lawmakers are barred from taking another crack at cash bail that is similar to the one voted down Tuesday. They might also be hesitant to take it up again, saying the voters have already spoken.

That has longtime advocates on edge.

“You fear what you think you can’t change,” said Sam Lewis, head of the Anti-Recidivism Coalition, among the most active criminal justice reform organizations in California. Lewis, who was released in prison in 2012 after serving 24 years, was among the fiercest supporters of Proposition 25. He said he thought the killing of George Floyd would have made people want to dismantle the system now more than ever.

“Instead,” Lewis said, “we kept a system that’s steeped in racism and criminalizes poor, black and brown people because we were afraid.”

What Happens Next?

Steppling’s organization says it has a plan to improve the jail system from the ground up. It’s unclear how exactly that plan would roll out and how much it could be deployed in counties across the state.

The replacement, he said, “does not begin and end in Sacramento.”

“If we let our sense of possibility be mediated by electeds, we would never get anywhere,” Steppling said. “We have to create a roadmap to something different, and then actually organize and do that work and build community pressure.”

Steppling said his group will work to replicate programs in other places like the one they helped push in Los Angeles County calling for jail diversion programs.

County-by-county, they plan to push a plan called Preserving the Presumption of Innocence. The plan calls for non-law-enforcement groups to evaluate people’s risk, counties to collect better data, and law enforcement to only detain people accused of serious or violent felonies. It is modeled, in part, from the bail reform law voters shot down Tuesday.

Sen. Robert Hertzberg, D- Los Angeles, who wrote SB 10 and has championed bail reform, was unconvinced that Steppling’s work would be successful. He said his yearslong effort that culminated with Proposition 25 was, in fact, a grassroots effort with people across the state. It prompted new county-level public safety assessment programs and was the type of sweeping change to state law that is needed for a broken system.

“The only way to solve this is at a statewide level,” he said. “You can’t fix the bail system on a county by county basis. It just doesn’t work. It has no legal authority.”

State-level bail fights aren’t over. The California Supreme Court has a case pending that would force judges to consider a defendant’s ability to pay bail before setting it. The Humphrey case could force a reckoning about how high bail is set, eroding some of the industry’s profits. It’s why Hertzberg said that, despite Proposition 25 failing, the bail industry “is on life support and the oxygen is running out of their tank.”

Any grassroots successes would also be scattered, said Jonathan Simon, a professor at UC Berkeley who studies law enforcement and was against Proposition 25. A so-called progressive prosecutor movement, like in San Francisco and Los Angeles along with other local reforms in the years since public safety realignment could prompt the kind of change Steppling described.

San Francisco District Attorney Chesa Boudin has committed to new policies targeting racial disparities in the justice system that include ending gang enhancement charges and charges where police find contraband through “pretextual” traffic stops. And in Los Angeles, George Gascón is leading in the race to head the largest district attorney’s office in the country on a progressive platform that includes eliminating cash bail.

“There’s plenty of opportunity for bail reform at the local level,” Simon said. “Counties can decide to adopt some level of this.”

It also means that conservative counties, such as Kern in Southern California or those in the north state — can ignore the changes altogether, indefinitely.

“That’s going to mean that some counties have some really regressive arrest and bail policies,” Simon said.

A Long Fight to Tuesday

For decades, California lawmakers have mulled ways to dismantle the cash bail industry, which is seen widely as unfairly harming lower-income families and people of color.

Judges generally follow what’s called a bail schedule, a preset grid that has dollar amounts attached to specific crimes. Those who do not have the money to post bond wait in jail for their case to end, whereas those with resources can get released.

Bail bond companies fill the gap in the middle for people who don’t have thousands of dollars on hand to pay to get out. Bond companies charge a fee — typically 10 percent — and arrange with the courts to have the defendant released from jail. The money is nonrefundable.

“We do not want bail being used as a form of punishment,” said Topo Padilla, president of the Golden State Bail Agents Association who has long said the problem is not with his industry but with local justice systems. “We do not want bail to be used to keep people in jail longer.”

Research has found minority communities and even families of domestic violence survivors can end up bearing disproportionate costs of cash bail. A Sacramento Bee investigation last month found that domestic violence survivors are paying cash to get their family members released from jail — a cruel twist in a pandemic that has devastated local economies.

Former Gov. Jerry Brown signed a bill into law in August 2018 that would have brought a sledgehammer to the system. To address concerns from groups like Steppling’s about racial bias in the risk assessments, lawmakers passed SB 36. They vowed to keep chipping away at the system to make things just and fairer.

Hertzberg wrote the 2018 law and last year’s addition aimed at repairing a broken system that benefits the bail industry.

“It may not be perfect, but we have the ability to come in and fix it. Let’s just get rid of the bail industry,” Hertzberg said in an interview Wednesday. “As much as they wanted to say they were for justice, they were for greenbacks, they were for money. That’s all they cared about. And that’s their business, I understand it, but it doesn’t make it right.”

That system fought back. Faced with the prospect of being outlawed, the state’s 3,200 licensed bail bondsmen and 7,000 employees gathered signatures for a referendum. With ample support from other groups, they collected enough signatures to put the future of the law up to the voters.

Soon came the unlikely marriage.

“Proposition 25 was not going to help get people out of jail, it was going to keep people in jail,” Steppling said. “And in some cases, many cases, thousands of cases, keep people in jail with no way out.”

“It was truly an honor to fight shoulder to shoulder with civil rights groups and law enforcement against this misguided legislation,” Jeffrey J. Clayton, Executive Director of the American Bail Coalition.

Reliable research about the effects of bail reform is hard to come by, in part because getting access to data is so fragmented.

But Heather Harris, a researcher at the nonpartisan Public Policy Institute of California who has extensively studied bail said roughly 11 percent of Latinos and 2 percent of African Americans would have likely been released sooner than they currently are.

While some people might have been detained slightly longer, the vast majority of suspects would have been released faster — risk assessments could propagate existing inequities, but those could be mitigated with other policies.

“Although our research does not address the question of whether risk assessment would have led to racially biased pretrial release decisions,” Harris reiterated Wednesday, “it does indicate that replacing money bail with a structured release process, would have mitigated some racial disparity in pre-arraignment release.”

‘It’s Just Easier to Say No’

As summer turned to fall this year, doubts were cropping up inside the Proposition 25 camp about whether California voters would stand against a well-heeled cash bail industry. They were getting increasingly worried that Steppling’s coalition of far-left activists would sow confusion about the existing problems with cash bail and the way to fix it.

Polling from the UC Berkeley Institute of Governmental Studies found that 39 percent of likely voters would keep the new law in place while 32 percent would vote to maintain cash bail, the LA Times reported Oct. 1. Nearly three-in-10 people were undecided.

Confusing wording and the potential for ballot fatigue heightened the anxiety for supporters.

“No question. It was a tough fight for us going in,” Hertzberg said. “I think it was a lot of confusion. You get a lot of drop off when you get to the end of the ballot. And it’s just easier to say no.”

Meanwhile, Steppling’s coalition of nonprofits grew and the bail industry watched the division grow. The ACLU of Southern California said it was opposed, as did Human Rights Watch, the California Black Chamber of Commerce, and the California NAACP State Conference.

The ruckus did more than simply split voters — it fractured the criminal justice reform movement, said Lewis, with the Anti-Recidivism Coalition. That tension might not disappear any time soon, even while all activists agree on the need to get rid of cash bail somehow.

“We don’t try to take over the leadership and try to say we know what’s best,” said Lewis with the Anti-Recidivism Coalition. “There’s segments that caused this split. … Was it a perfect bill? No. But it was the first step at really ending cash bail.

(c)2020 The Sacramento Bee (Sacramento, Calif.). Distributed by Tribune Content Agency, LLC.More From THE FUTURE OF What’s NextGov No Matter Who Wins the Election, Social Media Will Lose

The only certainty for many people ahead of today’s election is that social media will be blamed, whether for spreading misinformation or unyielding censorship. But this also means that change is likely to follow.

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New Mexico Adopts New Standards for Eyewitness Identification

By Evidence ProfBlogger 

In federal court and most state courts, Manson v. Brathwaite, 432 U.S. 98 (1977), sets the standard for the admissibility of eyewitness identification evidence.

Under Manson, courts apply a two-part test to determine the admissibility of eyewitness identification evidence, addressing first whether police identification procedures were “unnecessarily suggestive” and, if so, weighing specified factors in deciding the “linchpin” issue of whether the eyewitness identification was nonetheless sufficiently reliable to satisfy federal due process requirements….Although the Manson reliability test has been widely adopted among state courts,…it has come to face ever-increasing criticism from legal scholars as a result of major advances in scientific knowledge of eyewitness memory, perception, and recall, knowledge that contradicts many of the analytical assumptions underlying the rule.

Based on these concerns, the Supreme Court of New Mexico adopted new standards for the admission of eyewitness identification evidence.Specifically, in State v. Martinez, 2020 WL 6791529 (N.M. 2020), the Supreme Court of New Mexico held that Article II, Section 18 of the New Mexico Constitution affords broader due process protection than the United States Constitution in the context of admission of eyewitness identification evidence. In conducting eyewitness identification procedures, law enforcement agencies are required to adopt and follow scientifically supported protocols and practices to minimize mistaken identification. In addition, our holding in this case implicates three aspects of eyewitness identification law in New Mexico.First, we adopt a new standard for determining whether eyewitness identification evidence is admissible at trial. Under the new standard, if a witness makes an identification of a defendant as a result of a police identification procedure that is unnecessarily suggestive and conducive to misidentification, the identification and any subsequent identification by the same witness must be suppressed. The question of whether the identification is “unnecessarily suggestive” focuses not only on the identification procedure itself but also on whether the police have a “good reason” to use a suggestive identification procedure in the first place. Second, we abandon as legally and practically unsound the independent source doctrine, which has been applied in New Mexico…to permit the admission of an in-court eyewitness identification if its source is ostensibly independent of an inadmissible out-of-court identification.Third, when a defendant files a pretrial motion to suppress eyewitness identification evidence, the initial burden is on the defendant to show some indication of suggestiveness in law enforcement’s administration of the eyewitness identification procedure. Upon making this showing, the burden shifts to the state to prove by clear and convincing evidence that either (1) the procedure employed was not so suggestive as to materially taint the identification made by the eyewitness, which is to say that any departure from proper procedure could not have increased the risk of misidentification, or (2) good reason existed for the police to employ the suggestive procedure in the first instance. If the state fails to carry its responsive burden, the identification and any subsequent identification by the same witness must be suppressed.

These are terrific reforms in light of the fact that “[m]istaken eyewitness identifications contributed to approximately 69% of the more than 375 wrongful convictions in the United States overturned by post-conviction DNA evidence.”Hopefully, other states will soon follow suit in adopting more stringent standards as well.

Sentencing And COVID

Thanks to Judge Wayne Gorman:

In R. v. McKibbin, 2020 BCCA 337, November 18, 2020, the accused was convicted of the offence of trafficking in a controlled substance.  At his sentence hearing, evidence was presented establishing that the accused was suffering from chronic obstructive pulmonary disease (“COPD”).  

A period of six months of imprisonment was imposed.  The sentencing judge declined to impose a suspended sentence based upon the accused’s medical condition. The accused was granted bail, pending the hearing of his appeal from sentence. 

On appeal, the accused presented evidence indicating that were he “to contract COVID-19, his vulnerability would accelerate, thereby worsening his health”, possibly causing him “early death compared to other people without respiratory problems”.

The appeal was allowed and the sentence varied to a six month suspended sentence. 

The British Columbia Court of Appeal held that if “it were not for the unusual global circumstances currently existing” there would have been “no basis upon which to interfere with that sentence” (at paragraph 1).  However, the Court of Appeal concluded that made no sense “to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province” (at paragraphs 24 and 25):

The evidence before us is that not only would serving the sentence be harsher, but if he contracted COVID-19, it could well lead to an early death, which in my view does amount to circumstances justifying a suspended sentence. Normally, the prison authorities would be delegated the responsibility of managing a prisoner’s illness in the prison, and they are usually equipped to do so. However, given that Mr. McKibbin faces a significantly higher risk of death if he contracts COVID-19 because of his serious pre-existing respiratory disease, and given that he has a very short time left to serve in his sentence, it makes no sense to me to require that he be re-incarcerated, particularly when the numbers of infections are reaching an all-time high in this province. If he is at home, Mr. McKibbin can control who he has contact with, something that he cannot do in the prison setting.

This is an unusual case. The sentence imposed by the sentencing judge was without error, and but for the fresh evidence, I would not interfere with the sentence. It is also unusual in the sense that it is not just the COVID-19 pandemic that has changed the sentencing landscape, but the pandemic in the context of Mr. McKibbin’s serious respiratory illness, which makes him much more susceptible to serious COVID-19 symptoms, including death.

Do you want to improve your court?


The Arnold Ventures Philanthropic Foundation
is sponsoring a new grant program for
Advancing Pretrial Policy and Research (APPR) in Trial Courts

The Laura and John Arnold Founda􏰀on (a/k/a Arnold Ventures Philanthropic Founda􏰀on), founded in 2010, has a mission to improve lives through evidence-based solu􏰀ons in the fields of criminal jus􏰀ce, health care, educa􏰀on and public finance. One of the Founda􏰀on’s primary interests has been funding technical assistance to courts, judges, prosecutors and public defenders to imple- ment and evaluate transforma􏰀ve new prac􏰀ces to eliminate unjust pretrial deten􏰀on. In doing so, the Founda􏰀on supports a group of reputable nonprofit consultancies, researchers, policy experts and advocates known as the Na􏰀onal Partnership for Pretrial Jus􏰀ce. Partnership members include such organiza􏰀ons as the Na􏰀onal Center for State Courts, Center for Effec􏰀ve Public Policy, ABA, Center for Court Innova􏰀on, Rand Corpora􏰀on, and various universi􏰀es (i.e. Stanford, University of Notre Dame, University of California, Berkeley, etc.)

Trial court jurisdic􏰀ons interested in revamping and upgrading their pretrial services func􏰀ons through working with technical assistance (TA) providers and peer prac􏰀􏰀oners, who have success- fully implemented various pretrial jus􏰀ce reforms, are invited to apply to be “Learning Sites.” Each learning site selected will receive at no cost 16-months of TA and coaching that will examine their pretrial system, iden􏰀fy improvements, and implement the Arnold-developed Public Safety Assess- ment (PSA) tool, a pretrial risk assessment instrument for use by judicial officers that produces a score represen􏰀ng the likelihood an arrested defendant will commit a new crime or will fail to appear for a future court appearance.

The Advancing Pretrial Policy and Research (APPR) technical assistance teams began working with the first Learning Sites in July 2020. Those pilot sites included Douglas County, Nebraska (Omaha); Dade County, Florida (Miami); Williamson County, Texas (Aus􏰀n suburb); Wake County, North Carolina (Raleigh); and the City of Youngstown, Ohio.

APPR will be presen􏰀ng an informa􏰀onal, no obliga􏰀on webinar on December 15, 2020 at 3:00 PM (EST) to discuss the Learning Sites project, answer ques􏰀ons about the assistance offered, and review the process for jurisdic􏰀ons in applying to become a project site. If interested, applica- 􏰀ons must be submi􏰁ed by January 15, 2021 or February 26, 2021 to be considered for the program that will begin in early 2021. Jurisdic􏰀ons selected will work with TA providers and peer prac􏰀􏰀oners through an online workspace.

more informa􏰀on? | register for the upcoming webinar? | request an applica􏰀on?

 


Judicial Behavior

How do parties, lawyers and the public hope that judges will behave in court? How can judges sharpen their understanding of their emotional responses to their often difficult jobs and regulate those responses in a way that supports an appropriate judicial demeanor? Join Judge Jeremy Fogel, BJI’s Executive Director, and Professor Terry Maroney as they discuss Professor Maroney’s work and consider how her study and observation can help judges in the courtroom.

CLE credit offered.


The Right To Confrontation & Forensic Science

Andrew Hamm has an interesting article in the Crime Report. 

On December 3, the Maryland Court of Appeals will hear oral arguments in two cases that address when a criminal defendant has a right to cross-examine a lab technician who tested a DNA sample in his case.In State v. Leidig, a jury convicted James Leidig of burglary on the basis of a DNA profile constructed from a swab that police collected from the windowsill of the house. That DNA was the only evidence the state had to connect Leidig to the crime.DNA was also the only evidence that the state had on Matthew Miller, whom a jury convicted of rape in State v. Miller. The victim in Miller’s case did not identify him from a line-up as her assailant.At trial, both Leidig and Miller had the chance to cross-examine lab analysts, who answered questions about the procedures used in DNA testing. But neither of them got an opportunity to confront specific analysts who performed testing in their cases.Leidig never got to cross-examine the analyst who produced the DNA profile from the biological sample on the windowsill. And Miller never got to cross-examine the analyst who both produced a DNA profile after the rape and later connected that profile to one from a known sample of Miller’s.This issue matters because forensic science is far from perfect.In 2016, a landmark report by the President’s Council of Advisors on Science and Technology, “Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods,” determined that six methods of forensic analysis lacked foundational validity. Empirical studies have never shown that the procedures for techniques like hair analysis are repeatable, reproducible, or accurate.The report did find foundational validity for DNA analysis of biological samples containing the DNA of one or two persons, the technique involved in Leidig’s and Miller’s investigations.However, the report cautioned that the possibility of human error remains present.And Maryland has a troubling track record when it comes to its forensic analysis. In 2007, the Innocence Project revealed that a firearms examiner who worked for both Baltimore City Police and Maryland State Police had lied on the stand about his credentials. Maryland State Police recently launched a review of 4,041 case files involving this examiner after determining that in some reports he had forged the initials of the person who was supposed to be reviewing his work.Despite the issues presented by forensic science, courts have struggled to articulate a single test for when analysts are witnesses. Among the concerns for judges are line-drawing problems. For example, DNA testing typically requires six steps, and sometimes different analysts perform separate stages. Intuition could suggest that at least someone from the laboratory has to show up at trial for questioning, but not every single team member.That may be simple enough as a practical matter—except that if one analyst is a witness, it is not easy to decipher why the other analysts are not also witnesses whom a defendant has a constitutional right to confront.

The Issue of ‘Formality’

For Justice Clarence Thomas of the U.S. Supreme Court, the confrontation right turns on formality: Criminal defendants have a right to cross-examine the authors of “formal” statements introduced against them at trial. Explaining his views most recently in the 2012 case Williams v. Illinois, Justice Thomas wrote that the DNA report was not formal because it did not “attest that its statements accurately reflect the DNA testing processes used or the results obtained.”Before Leidig’s and Miller’s cases reached the Maryland Court of Appeals, the judges on the Maryland Court of Special Appeals had applied Justice Thomas’ formality test to the DNA reports. For the processes used, the court noted that the analysts in both cases had followed the Federal Bureau of Investigation’s Quality Assurance Standards for Forensic DNA Testing Laboratories.As for the results obtained, the court noted that the reports, using slightly different language, stated that they contained the analyst’s conclusions, interpretations and opinions.Faced with these facts, three judges from the Maryland Court of Special Appeals determined that the report in Miller’s case was formal. However, three different judges determined that the report in Leidig’s case was not formal. At a minimum, these inconsistencies demonstrate weaknesses in Justice Thomas’s formality test. for the complete article : https://thecrimereport.org/2020/11/23/can-the-sixth-amendment-protect-defendants-from-junk-science/