In September 2009 we reported that the U.S. Supreme Court held in the Melendez-Diaz case that expert testimony falls under the 6th Amendment that gives the right of the defendant the right to face adverse witnesses and to cross examine them. Since that time, new cases have come forward. In June 2011, the U.S. Supreme Court Case, Bullcoming v. New Mexico, ruled as follows:
The Sixth Amendment’s Confrontation Clause gives the accused “[i]n all criminal prosecutions, . . . the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington, 541 U. S. 36, 59, this Court held that the Clause permits admission of “[t]estimonial statements of witnesses absent from trial . . . only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” Later, in Melendez-Diaz v. Massachusetts, the Court declined to create a “forensic evidence” exception to Crawford, holding that a forensic laboratory report, created specifically to serve as evidence in a criminal proceeding, ranked as “testimonial” for Confrontation Clause purposes. Absent stipulation, the Court ruled, the prosecution may not introduce such a report without offering a live witness competent to testify to the truth of the report’s statements.
The court expressly barred the use of proxy experts, i.e. using an experienced expert from a crime lab to testify from the principal examiner’s written report.
This decision will have some interesting ramifications. Consider a cold case brought to trial years after the case was first investigated: What happens if the original experts are deceased or no longer available? The court has some additional work before the initial decision works in the “real world.”
How might this problem be dealt with in a way to grant the defendant’s the 6th Amendment rights while not frustrating the prosecution’s ability to proffer physical evidence in cases?