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June 27, 2012

New Supreme Court Decision On The Confrontation Clause

By Michael H. Joseph

Our New York criminal defense lawyers keep up on the latest developments in the area of civil rights law and criminal law. Unfortunately the Supreme Court has now made a decision which undercuts a basic Constitutional Right. In the Crawford case, the Supreme Court previously held that scientific reports could not be used as substantive evidence against a defendant unless the analyst who prepared and certified the report was subject to confrontation. In that case, the report at issue contained a testimonial certification, made in order to prove a fact at a criminal trial. Now, in Williams v. Illinois, the Supreme Court has backed away from its prior holdings and significantly undercut the Confrontation Clause.

Inexplicably and through artificial distinctions, the Supreme Court held that a criminal defendant facing a rape charge was properly convicted where a forensic specialist testified that she matched a DNA profile produced by an outside laboratory to a profile the state lab produced using a sample of Defendant’s blood.

The Supreme Court found that the confrontation clause was not violated because the Confrontation Clause refers to testimony by “witnesses against” an accused, prohibiting modern-day practices that are tantamount to the abuses that gave rise to the confrontation right, namely, (a) out-of-court statements having the primary purpose of accusing a targeted individual of engaging in criminal conduct, and (b) formalized statements such as affidavits, depositions, prior testimony, or confessions. The Court drew an artificial distinction by finding that because the Court’s prior decision involved reports which were the equivalent of affidavits made for the purpose of proving a particular criminal defendant’s guilt, however the outside laboratory in this case’s report’s primary purpose was to catch a dangerous rapist who was still at large, not to obtain evidence for use against the defendant, who was not in custody nor under suspicion at that time. Nor could anyone at the laboratory possibly know that the profile would inculpate petitioner, thus there was thus no “prospect of fabrication” and no incentive to produce anything other than a scientifically sound and reliable profile.

Here the Court’s decision seems to be more about convicting a defendant and condoning police shortcuts, than actually interpreting the law. While the Court seemed to place emphasis on the contention that there was an absence of fabrication motive, a fabrication motive is not found in the confrontation clause. Even if there was no fabrication motive, there is still the possibility of error, contamination or junk science. The Confrontation clause is a basic Constitutional guarantee that gives a criminal defendant the right to confront those who present evidence against them and this Court has seriously eroded its protections. Unfortunately, so long as these right wing republicans are in control of the Court, I suspect that all criminal defense lawyers will have a more difficult job in defending our clients, many of whom are innocent. Simply stated, it is impossible to cross examine a piece of paper and allowing people to be convicted based upon scientific opinions which are written on a piece of papers and not by a live person in Court is offensive to the basic protections protections our citizens deserve.

 
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