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Law School Symposium, U.S. Supreme Court, and “Confronting” Forensic Evidence

(Boston, Revised 05/07/10) New England Law | Boston: The Sixth Amendment’s Confrontation Clause establishes a criminal defendant’s right to confront an accuser, but what happens when the accusation comes in the form of a shoe impression or a tooth mark?
Common wisdom holds that “facts don’t lie,” although in criminal court their use is not so clear-cut.  Whether facts can speak for themselves or if the Constitution requires the opportunity to cross-examine forensic experts has been the focus recently of two U.S. Supreme Court cases, Melendez-Diaz v. Massachusetts and Briscoe v. Virginia, and a major New England Law | Boston symposium on forensic evidence.

NEJCCC Panel 1
“The Admissibility of Forensic Evidence” panelists with journal staff.

In its June 2009 Melendez-Diaz decision, the Supreme Court required prosecutors to have experts submit to cross-examination regarding the substance of forensic reports.  Justice Antonin Scalia elaborated on his 5-4 majority opinion: “The prosecution has to bring in the witness.  That has been what the Confrontation Clause has meant.”

The justice’s confidence, however, did not comfort critics who envisioned significant disruptions in lab operations if technicians are constantly on call.  Twenty-six states and the District of Columbia sought to confine the impact of Melendez-Diaz.  The issue returned to the High Court in the form of Briscoe, which was argued on January 11.

On January 25, 2010, the Supreme Court issued a one-sentence per curiam opinion that vacated the judgment of the Supreme Court of Virginia.  The case was remanded for further proceedings “not inconsistent with the opinion in Melendez-Diaz v. Massachusetts.

Melendez-Diaz and its potential courtroom impact received major coverage in regional media, including the Boston Globe and the Massachusetts Lawyers Weekly.  New England Law | Boston’s New England Journal on Civil and Criminal Confinement (NEJCCC) recognized the importance of this issue and made Melendez-Diaz and Briscoe the focus of its annual symposium.

NEJCCC Panel 2
Morgan Laurie ’10

Morgan Laurie ’10 is the journal’s managing business editor and symposium organizer.  She said, “We believed that scheduling the symposium after the Melendez-Diaz decision was reached and before Briscoe was argued would prove valuable to both practitioners and scholars.”  The November 2009 conference featured attorneys who argued in the two cases, Confrontation Clause scholars, and national experts in forensic science.

The symposium’s panelists included University of Michigan Law School Professor Richard Friedman; Friedman is counsel of record for the Briscoe petitioners, who aim to uphold the Melendez-Diaz standard, and he drew on the symposium proceedings in his brief.  (See remarks on p. 27 of Professor Friedman’s brief.)

The journal’s faculty advisor, Professor Louis Schulze, noted, “Forensic science is playing an increasingly larger role in the criminal justice system.  Courts are struggling with the serious constitutional implications of this development.  The symposium was obviously very timely, and we’re pleased that the Supreme Court had the benefit of the panelists’ presentations to aid in the determination of the Briscoe case.” 

NEJCCC Panel 2
“Fostering Effective Forensic Analysis” panelists.

The symposium has contributed to the national discussion of these cases, as evidenced by reference to it in a January, 19, 2010, New York Times article, "Justices Better at Precedent Than Prescience," and an April 19, 2010, online article in the Harvard Law and Policy Review.

New England Law’s three scholarly journals have made many similar contributions over the years, with nearly 100 citations to briefs submitted to the U.S. Supreme Court.

The New England Journal on Criminal and Civil Confinement is one of the nation’s top criminal law journals and the only specialty journal that specifically addresses civil confinement law.  This year’s annual symposium, which attracted more than 225 attorneys, judges, academics, and law students from throughout the regional legal community, was co-sponsored by the Flaschner Judicial Institute.

Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence. – John Adams


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