For Third Time Recently, Supreme Court Revisits Confrontation Clause


The issue of how prosecutors may use crime lab reports at a trial made its third appearance at the Supreme Court yesterday since a 5-4 ruling in 2009 said such reports may not be used in criminal trials unless the analysts responsible for creating them provide live testimony, reports the New York Times. In June, also by a 5-to-4 vote, the court said that only the analyst who did the work, rather than a colleague or supervisor, would do.

The new question for the justices is whether expert witnesses could offer opinions linking defendants to crimes based on lab reports that had not been admitted into evidence. Justice Antonin Scalia, leading a movement to breathe new life into the Sixth Amendment’s confrontagtion clause, said that expert testimony may not be used to smuggle evidence into a criminal trial without testimony from those who created it. The clause gives a criminal defendant the right “to be confronted with the witnesses against him.” Justice Stephen Breyer said yesterday there were good reasons to make an exception to the usual rules for reports from accredited, independent crime labs. The alternative, he said, was “a sea change in normal criminal law practices” that could require testimony from 10 analysts in a single case, pushing “the system in the direction of relying on less reliable eyewitness testimony rather than more reliable technical laboratory DNA-type evidence.”

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