Cheating the Constitution
Tulane University - Law School
Vanderbilt Law Review, October 2005
It is black letter constitutional law: To prove a criminal offense, the prosecution must prove every element of the offense, by proof beyond a reasonable doubt, and the constitution entitles a defendant to confront and cross-examine all witnesses against him. Yet, for the past thirty years, state legislatures have quietly approved laws that cheat the constitution. By that, I mean that these laws fly, undetected, beneath the constitutional radar while violating fundamental constitutional rights.
Although other constitutional cheats abound, in this article I consider one archetypical cheat: statutes that permit state prosecutors to use hearsay state crime laboratory reports, in lieu of live witness testimony, to prove essential elements of a criminal case. These statutes convert the allegations of an uncross-examined state witness into proof beyond a reasonable doubt. I call these forensic proof statutes forensic ipse dixit statutes, because "a bare assertion resting on the authority of an individual" becomes, ipse dixit, an adjudicated fact. The forensic ipse dixit statutes deprive defendants of the right to confrontation and relieve the government of its burden of proof. Along the way, these statutes discourage vigorous defense advocacy, promote carelessness and fraud in crime laboratories, and increase the likelihood of wrongful convictions and sentences.
In Section I of this article, I provide an overview of the nationwide forensic ipse dixit phenomenon. In Section II, I address the unwarranted presumption of reliability that legislatures and courts often accord to forensic reports. In Sections III and IV, respectively, I discuss how the forensic ipse dixit statutes violate the Confrontation and Due Process clauses of the United States Constitution. In Section V, I offer observations about what constitutional cheating reveals about our criminal justice system.
Keywords: Confrontation Clause, mandatory rebuttable presumption, mandatory conclusive presumption, criminalist report, forensics report, crime laboratory, scientific evidence, innocence, burden shifting, Crawford, demand-waiver, business records, public records, notice and demand, forensic ipse dixitAccepted Paper Series
Date posted: June 21, 2005
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