The Following is an excerpt an op ed by Associate Professor of Law Jeffrey Fisher printed in The New York Times on Dec 2, 2011 ON Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois, the latest in a string of cases addressing whether the Sixth Amendment’s confrontation clause — which gives the accused in a criminal case the right “to be confronted with the witnesses against him” — applies to forensic analysts who produce reports for law enforcement. In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report?
A logical application of the law produces an easy answer: Yes. The court has defined a “witness against” a defendant as a person who provides information to law enforcement to aid a criminal investigation. That is exactly what forensic analysts do.
Subjecting forensic analysts to cross-examination is also good policy. According to a recent National Academy of Sciences study, forensic science is not nearly as reliable as it is perceived to be. DNA specimens, for instance, are sometimes contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol analyses depend on human interpretation and thus are subject to error. Worse, investigations over the past decade have revealed outright incompetence and fraud in many crime labs. So it makes sense to subject the authors of lab reports to cross-examination — a procedure the court has called “the greatest legal engine ever invented for the discovery of truth.”
Despite all this, the Supreme Court has been sharply divided on the issue. In similar cases in 2009 and earlier this year, in which I represented the defendants, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. accepted claims by state governments that, simply put, confrontation in this context costs too much. It is far more efficient, these justices contend, to let analysts simply mail their reports to court. Having to appear at trials pulls them away from their labs, and only occasionally proves more revealing than their written testimony. Hence, these justices maintain, “scarce state resources” are better committed elsewhere.
Given that several states have long required forensic analysts to come to court, one might think that this financial argument would not have gained much traction. Justice Antonin Scalia, in fact, called the argument a “bogeyman.” But the four dissenting justices not only accepted it but deemed it powerful enough to trump the commands of constitutional text and precedent. To read the full piece, go to http://www.nytimes.com/2011/12/02/opinion/forensic-analysts-should-defend-reports-in-court.html?ref=opinion