'Bull' Coming from the States: Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming’s Confrontation Clause Loopholes
56 Pages Posted: 9 Mar 2012
Date Written: March 8, 2012
Numerous juries have convicted defendants based on second-hand (or hearsay) expert witness testimony about laboratory reports performed and certified by other analysts who never appeared at trial.
On June 23, 2011, however, the Supreme Court put this practice to a stop in Bullcoming v. New Mexico. Or did it? In perhaps the closest majority in recent Confrontation Clause history, the Supreme Court affirmed that the protections of the Sixth Amendment extend to the admission of scientific evidence against a defendant, so long as the evidence consists of a written report admitted at trial.
Despite the sound foundations of the majority’s reasoning, however, the Court failed to create a clear rule in Bullcoming, giving states multiple loopholes to use to avoid implicating Confrontation Clause requirements. The Court may move to close one of these four loopholes relatively quickly: the Court granted certiorari in Williams v. Illinois five days after deciding Bullcoming, ensuring we have not heard the Court’s “last word” on the Confrontation Clause as it applies to the admission of scientific evidence against defendants.
This Note examines the modern history of the Confrontation Clause, beginning with the Court’s decision to overturn more than two decades of Confrontation Clause jurisprudence in Crawford v. Washington and continuing with Melendez-Diaz v. Massachusetts’ requirements for the admission of testimonial scientific evidence. Second, this Note examines the Court’s recent decision in Bullcoming, particularly Justice Sotomayor’s concurrence. This Note argues that Justice Sotomayor’s four limitations on Bullcoming’s holding provide lower courts with a series of loopholes they may continue to use to avoid Confrontation Clause requirements, at least until the Court directly addresses each of the loopholes. Finally, this Note urges the Court to close one of Justice Sotomayor’s Bullcoming loopholes by reversing the Illinois Supreme Court’s decision in People v. Williams. The Supreme Court should not tolerate prosecutors’ attempts to avoid Confrontation Clause requirements by introducing otherwise testimonial evidence through surrogate witnesses under the guise of Federal Rule of Evidence 703.
Keywords: Confrontation Clause, Federal Rules of Evidence, analyst, Bullcoming, Melendez-Diaz, Williams v. Illinois, Crawford
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