A Game of Katso and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause

Abstract

The Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions.

Keywords: Confrontation Clause, Evidence, Forensic Analysis