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In the pilot episode of the hit television show CSI, Grissom says to Warrick: "Concentrate on what cannot lie. The evidence." Although Grissom is a beloved figure in U.S. popular culture, the U.S. is currently unwilling to accept that evidence never lies. In stark contrast to Grissom's statement, the common law has a long history of allowing criminal defendants to cross-examine and question witnesses providing evidence against them. The right to confront an accusatory witness is reflected in the historical legal documents of Great Britain, in Shakespearean writing, and even in the Bible. In the United States, the right to confront was enshrined in the Sixth Amendment to the Federal Constitution which provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . . ." The right to confront applies at both the federal level and at the state level (through the Fourteenth Amendment).

Although there is some consensus that the Constitution grants criminal defendants some right to confront their accuser, there is much less agreement on exactly who must be confronted and for what kinds of accusations or statements. Particularly controversial is whether the Confrontation Clause requires a scientific analyst to testify in criminal cases where such an analyst conducts a test, perhaps using a machine or other apparatus, and then prepares a report communicating the results of that test, and that report (or evidence of it) is offered at trial against an accused.

The purpose of this Article is to highlight the issues raised by, and potential consequences of, the applicability (or inapplicability) of the Confrontation Clause to forensic scientists creating purportedly objective reports, in various situations. Part I introduces the Article. 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 v. New Mexico. 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.

Publication Citation

90 Neb. L. Rev. 502-558 (2011)