Confrontation's Multi-Analyst Problem

Texas A&M Law Review, Vol. 9, p. 165, 2021

43 Pages Posted: 5 Apr 2021 Last revised: 22 Nov 2021

See all articles by Paul F. Rothstein

Paul F. Rothstein

Georgetown University Law Center

Ronald J. Coleman

Georgetown University Law Center

Date Written: March 25, 2021

Abstract

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce each and every analyst involved in handling the sample, participating in the testing process, or making any type of even minor representation contained in the report? Although the Supreme Court has had several occasions to opine on the application of the Confrontation Clause to forensic reports, and although such precedent suggests criminal defendants enjoy at least some right to confront a forensic analyst, a great deal of uncertainty persists as to which analyst or analysts must be produced in cases involving multiple analysts. A certiorari petition considered by the Supreme Court in March 2021—Chavis v. Delaware—could have permitted the Court to address this multi-analyst problem. Even though the Court determined Chavis was not the appropriate vehicle for resolving the multi-analyst problem, this is an extremely important issue for labs, local stakeholders, and lower courts, and Justice Gorsuch even dissented from the Court’s denial of certiorari. The purpose of this Article is to identify and discuss six plausible approaches the Supreme Court could consider in resolving the multi-analyst problem.

Keywords: Confrontation Clause, criminal procedure, evidence, CSI, DNA, forensic analysis, forensic reports, Sixth Amendment, constitutional, Supreme Court

Suggested Citation

Rothstein, Paul F. and Coleman, Ronald J., Confrontation's Multi-Analyst Problem (March 25, 2021). Texas A&M Law Review, Vol. 9, p. 165, 2021, Available at SSRN: https://ssrn.com/abstract=3815870

Paul F. Rothstein

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Ronald J. Coleman (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
33
Abstract Views
177
PlumX Metrics