Abstract

http://ssrn.com/abstract=1980318
 


 



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


Paul F. Rothstein


Georgetown University Law Center

Ronald J. Coleman


Georgetown University Law Center

2011

Nebraska Law Review, Vol. 90, p. 502, 2011
Georgetown Public Law Research Paper No. 12-001

Abstract:     
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.

Number of Pages in PDF File: 59

Keywords: Confrontation Clause, confrontation rights, forensic evidence, forensic reports, analyst testimony, surrogate witness, criminal trials, Supreme Court, Constitutional law, criminal law, jurisprudence

JEL Classification: K14, K40, K00, K10

Accepted Paper Series


Download This Paper

Date posted: January 6, 2012  

Suggested Citation

Rothstein, Paul F. and Coleman, Ronald J., 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 (2011). Nebraska Law Review, Vol. 90, p. 502, 2011; Georgetown Public Law Research Paper No. 12-001. Available at SSRN: http://ssrn.com/abstract=1980318

Contact Information

Paul F. Rothstein (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
Ronald J. Coleman
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
Feedback to SSRN


Paper statistics
Abstract Views: 549
Downloads: 99
Download Rank: 157,682

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.359 seconds