A Game of \u3cem\u3eKatso\u3c/em\u3e and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions

Confronting Memory Loss

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can afford a criminal defendant her right to confront. Would, for instance, it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen the crime or identified the defendant as the perpetrator? Should the right to confront simply imply the ability to look one’s accuser in the eye at trial or should it necessitate some degree of opportunity for substantive cross-examination? Two petitions denied certiorari by the Supreme Court in December 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rights in memory loss cases. The purpose of this Article is to identify and discuss eight key issues arising in connection with memory impairment in Confrontation Clause witnesses. Although the Court chose not to put these issues to bed in the context of White or Tapia, these are the issues we anticipate federal and state courts will be called upon to answer in the coming years, and we suspect the Supreme Court will eventually need to answer them

Confrontation\u27s Multi-Analyst Problem

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce each and every analyst involved in handling the sample, participating in the testing process, or making any type of even minor representation contained in the report? Although the Supreme Court has had several occasions to opine on the application of the Confrontation Clause to forensic reports, and although such precedent suggests criminal defendants enjoy at least some right to confront a forensic analyst, a great deal of uncertainty persists as to which analyst or analysts must be produced in cases involving multiple analysts. A certiorari petition considered by the Supreme Court in March 2021—Chavis v. Delaware—could have permitted the Court to address this multi-analyst problem. Even though the Court determined Chavis was not the appropriate vehicle for resolving the multi-analyst problem, this is an extremely important issue for labs, local stakeholders, and lower courts, and Justice Gorsuch even dissented from the Court’s denial of certiorari. The purpose of this Article is to identify and discuss six plausible approaches the Supreme Court could consider in resolving the multi-analyst problem

Grabbing the Bullcoming by the Horns: How the Supreme Court Could Have Used Bullcoming v. New Mexico to Clarify Confrontation Clause Requirements for CSI-type Reports

Just this last term, the Supreme Court was presented with the opportunity to tackle one of these issues in a case styled Bullcoming v. New Mexico. In Bullcoming the Court was specifically asked to determine: “Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.” Melendez-Diaz left that issue untouched, since no attempt was made by the prosecution to use an in-court substitute witness for the analyst. The evidence at issue in Melendez-Diaz was an affidavit or report of the testing analyst. Only this somewhat narrow question was presented to the Supreme Court in Bullcoming. But the opportunity was there to address many of the other nine issues we have identified. Although prosecutors, crime labs, law enforcement officials, defense lawyers, judges, and Evidence and Confrontation Clause scholars would have dearly loved—indeed, needed—to see the Court tackle all of these broader issues, there is an argument of judicial restraint that counsels against a court taking on issues unnecessary to the particular decision— issues that are not specifically raised, briefed, and argued in the case before it—on the grounds that such excursions are likely to be poorly thought out. It is not the purpose of this Article to weigh in on whether the Bullcoming Court should have tackled these broader issues. There are benefits to both views. Rather, our purpose is to set out the nine issues regarding Confrontation law as applied to scientific reports that arise after Melendez-Diaz, and examine what, if anything, the Court said or implied about such issues in Bullcoming. We will also venture some tentative thoughts of our own on each of these issues, and some consequences of the various possible views. Part II provides some case law history of Confrontation Clause jurisprudence so that the issues may be placed in their historical and analytical context. Part III sets forth the facts, the lower court proceedings, and the Supreme Court decision, in Bullcoming. Part IV identifies the nine important issues that arose prior to Bullcoming and discusses where they stand after that decision. Also considered in that Part are some consequences to law enforcement policy. Finally, Part V presents our conclusions. Even though the Supreme Court in Bullcoming chose to refrain from laying to rest most of the issues we identify, we hope that this paper will, at least, add to the ongoing dialogue on forensics and confrontation rights, and encourage more work in this important and developing area of law

Confrontation, the Legacy of Crawford, and Important Unanswered Questions

This is a short piece for the University of Michigan Journal of Law Reform as part of its 2024 Symposium on “Crawford at 20: Reforming the Confrontation Clause.” The piece\u27s purpose is to highlight certain important questions left unanswered by Crawford v. Washington and subsequent confrontation cases

Confronting Memory Loss

The Confrontation Clause of the Sixth Amendment grants“the accused” in “all criminal prosecutions” a right “to beconfronted with the witnesses against him.” A particularproblem occurs when there is a gap in time between thetestimony that is offered and the cross-examination of it, aswhere—pursuant to a hearsay exception or exemption—evidence of a current witness’s prior statement is offered and,for some intervening reason, her current memory is impaired.Does this fatally affect the opportunity to “confront” thewitness? The U.S. Supreme Court has, to date, left unclear theextent to which a memory-impaired witness can afford acriminal defendant her right to confront. Would, for instance,it be of any value to permit a defendant the opportunity to cross-examine a witness claiming no recollection of having seen thecrime or having identified the defendant as the perpetrator?Should the right to confront simply imply the ability to lookone’s accuser in the eye at trial, or should it necessitate somedegree of opportunity for substantive cross-examination? Twopetitions for certiorari that the U.S. Supreme Court denied inDecember 2019—White v. Louisiana and Tapia v. New York—could have permitted the Court to clarify confrontation rightsin memory loss cases. This Article identifies and discusses eightkey issues arising under the Confrontation Clause inconnection with memory impairment in witnesses. Althoughthe Court chose not to put these issues to rest in the context ofWhite or Tapia, we anticipate federal and state courts will becalled upon to answer these issues in the coming years, and wesuspect the Court will eventually need to answer them

Confrontation’s Multi-Analyst Problem

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce each and every analyst involved in handling the sample, participating in the testing process, or making any type of even minor representation contained in the report? Although the Supreme Court has had several occasions to opine on the application of the Confrontation Clause to forensic reports, and although such precedent suggests criminal defendants enjoy at least some right to confront a forensic analyst, a great deal of uncertainty persists as to which analyst or analysts must be produced in cases involving multiple analysts. A certiorari petition considered by the Supreme Court in March 2021—Chavis v. Delaware—could have permitted the Court to address this multi-analyst problem. Even though the Court determined Chavis was not the appropriate vehicle for resolving the multi-analyst problem, this is an extremely important issue for labs, local stakeholders, and lower courts, and Justice Gorsuch even dissented from the Court’s denial of certiorari. The purpose of this Article is to identify and discuss six plausible approaches the Supreme Court could consider in resolving the multi-analyst problem

Differentiating Strict Products Liability’s Cost-Benefit Analysis from Negligence

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility[.]” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of negligence enough to protect the public or is a strict liability system preferable? If a strict liability system is preferred, what system should be adopted and how can standards be set that are stricter than negligence but not overly draconian? The current strict products liability paradigm is predicated upon—at least in many courts and for certain categories of product defects—a “risk-utility” or “cost-benefit” analysis conducted by the fact-finder. While such cost-benefit form of strict liability offers flexibility, many have charged that it is really no different from ordinary negligence, which itself contemplates very similar balancing. We disagree. In this Article, we isolate a discrete decisional framework within which strict liability balancing can be situated, and we then identify and discuss five plausible standards that preserve a cost-benefit balancing, are stricter than negligence, and do not constitute absolute or excessively strict liability

Integrated control of vector-borne diseases of livestock--pyrethroids: panacea or poison?

Tick- and tsetse-borne diseases cost Africa approximately US$4-5 billion per year in livestock production-associated losses. The use of pyrethroid-treated cattle to control ticks and tsetse promises to be an increasingly important tool to counter this loss. However, uncontrolled use of this technology might lead to environmental damage, acaricide resistance in tick populations and a possible exacerbation of tick-borne diseases. Recent research to identify, quantify and to develop strategies to avoid these effects are highlighted

OTVE turbopump condition monitoring, task E.5

Recent work has been carried out on development of isotope wear analysis and optical and eddy current technologies to provide bearing wear measurements and real time monitoring of shaft speed, shaft axial displacement and shaft orbit of the Orbit Transfer Vehicle hydrostatic bearing tester. Results show shaft axial displacement can be optically measured (at the same time as shaft orbital motion and speed) to within 0.3 mils by two fiberoptic deflectometers. Evaluation of eddy current probes showed that, in addition to measuring shaft orbital motion, they can be used to measure shaft speed without having to machine grooves on the shaft surface as is the usual practice for turbomachinery. The interim results of this condition monitoring effort are presented