By now most of you have probably heard of the Supreme Court ruling in June requiring forensic analysts to be available for cross-examination each time one of their reports is submitted into evidence. The contentious 5-4 ruling in Melendez-Diaz v. Massachusetts asserts that forensic analysts must testify under the Sixth Amendment Confrontation Clause granting defendants the right to confront witnesses against them. While analysts could always be subpoenaed to court to explain their reports or methodology, it has been a rare practice.

In his decision, Justice Antonin Scalia called into question the reliability of forensic science as a whole, citing the recent National Academy of Science report. Refuting the argument that forensic reports are neutral facts rather than accusatory testimony, Justice Scalia wrote, “Forensic evidence is not uniquely immune from the risk of manipulation…Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well. Serious deficiencies have been found in the forensic evidence used in criminal trials.”

In his dissenting opinion, Justice Anthony M. Kennedy strongly opposes this interpretation of the Confrontation Clause.

“The Confrontation Clause is not designed, and does not serve, to detect errors in scientific tests. That should instead be done by conducting a new test. Or, if a new test is impossible, the defendant may call his own expert to explain to the jury the test’s flaws and the dangers of relying on it. And if, in an extraordinary case, the particular analyst’s testimony is necessary to the defense, then, of course, the defendant may subpoena the analyst.”

Whether the NAS report on the effectiveness of forensic science contributed to the Court’s findings or not, the effects of this ruling will be felt. While the full implications of the ruling are unclear (since the ruling leaves it to individual states to define how the testimonies will be handled), Virginia has already run across difficulties. A U.S. Supreme Court hearing next term will determine if a previous state court decision on forensic testimony will stand.

“There is no accepted definition of analyst, and there is no established precedent to define that term,” Justice Kennedy adds. “Consider how many people play a role in a routine test for the presence of illegal drugs. It is not at all evident which of these persons is the analyst to be confronted under the rule the Court announces today.”

“[This ruling] will have a doubly detrimental effect,” says Dean Gialamas, ASCLD President. “Crime labs are losing positions and those existing will have an increased work load.” You can’t just hire people, Gialamas adds. “It would take 12 to 24 months to hire and train a new analyst, even if money were available.”

Anthony Tambasco, Director of the Mansfield Police Laboratory, Mansfield, Ohio, believes the costs in terms of time and resources could be significant. “Attorneys may demand testimony in cases where they previously did not. This may cause an increase in travel and court time and can only increase current crime lab backlogs. It will cost more to continue to provide the current level of service as analysts will be spending time in court that they previously were not required to attend.”

Justice Scalia dismisses these financial and logistical concerns in his ruling. “The Confrontation Clause may make the prosecution of criminals more burdensome, but that is equally true of the right to trial by jury and the privilege against self-incrimination. The Confrontation Clause—like those other constitutional provisions—is binding, and we may not disregard it at our convenience.”

We in turn must wait and see how the ruling will be interpreted state by state.