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Confronting Science: Expert Evidence and the Confrontation Clause


Jennifer Mnookin


University of California, Los Angeles (UCLA) - School of Law

David H. Kaye


The Pennsylvania State University Dickinson School of Law

February 23, 2013

Supreme Court Review 2012, pp. 99-160, 2013
Penn State Law Research Paper No. 11-2013
UCLA School of Law Research Paper No. 13-08

Abstract:     
In Crawford v Washington, the Supreme Court substantially changed its understanding of how the Confrontation Clause applies to hearsay evidence. Since then, the Court has issued three bitterly contested expert-evidence-related Confrontation Clause decisions, and each one has generated at least as many questions as answers. This article analyzes this trilogy of cases, especially the most recent, Williams v Illinois.

In Williams, the Court issued a bewildering array of opinions in which majority support for admitting the opinion of a DNA analyst about tests that she did not perform was awkwardly knitted together out of several incompatible doctrinal bases. The most prominent and fully developed argument for admission was that the references to the work of the analysts who actually did the testing but who never testified were admitted for a purpose other than their truth. Although we maintain that this argument is, on the facts of Williams, implausible, we also recognize that in other, relatively limited instances, expert basis evidence might legitimately be introduced for a purpose other than its truth.

After striving for precision on this doctrinal point, we step back and suggest that the ongoing anxiety about how to think about expert evidence and the Confrontation Clause exists in large part because the Court has yet to face directly a set of larger, background concerns. There is significant uncertainty about how, and to what extent, scientific evidence should be treated as special or distinct from other kinds of evidence for confrontation purposes. We suggest that scientific and expert evidence might warrant some limited special treatment, based on what we see as one of the most critical dimensions of scientific knowledge production — that it is a collective, rather than an individual enterprise. Recognizing that scientists inevitably rely and build on facts, data, opinions, and test results of others, we suggest that courts should engage in a modest form of scientific exceptionalism within Confrontation Clause jurisprudence, through efforts to create procedures that respect the fundamental values of the Confrontation Clause, but also adapt when necessary, to the epistemic structures and processes of science.

Number of Pages in PDF File: 42

Keywords: Sixth Amendment, Confrontation Clause, Willliams, Melendez-Diaz, Bullcoming, Rule 703, laboratory reports, scientific evidence, DNA evidence

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Date posted: March 24, 2013 ; Last revised: May 17, 2014

Suggested Citation

Mnookin, Jennifer and Kaye, David H., Confronting Science: Expert Evidence and the Confrontation Clause (February 23, 2013). Supreme Court Review 2012, pp. 99-160, 2013; Penn State Law Research Paper No. 11-2013; UCLA School of Law Research Paper No. 13-08. Available at SSRN: http://ssrn.com/abstract=2238269

Contact Information

Jennifer L. Mnookin
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
David H. Kaye (Contact Author)
The Pennsylvania State University Dickinson School of Law ( email )
Lewis Katz Building
University Park, PA 16802
United States
814 865-8974 (Phone)
HOME PAGE: http://law.psu.edu/faculty/resident_faculty/kaye
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