Call it the CSI effect, but forensics has been in the mainstream news a lot lately, and much of the news is not good. Labs closing due to budget cuts, investigations into the quality of forensic science, and the discovery of a slew of wrongfully accused inmates.
In this issue we address a few of the concerns that have lately occupied our minds and influenced our work. In “The DNA Connection,” Chris Asplen takes a closer look at Elizabeth A. Haskell and Reginald Ento v. Edmund G. Brown Jr. et al., the case challenging California’s Proposition 69, which could have an impact on arrestee DNA sample collection and DNA databases nationwide. Paul Ferrara, Stephanie Stoiloff, and Randy Nagy, examine another hot topic in forensics, addressing the value of partnerships between private and public labs to reduce evidence backlogs in “Working Together to Solve Crime.”
What was perhaps last year’s biggest controversy—the Melendez-Diaz case ruling that lab analysts had to be available to testify if their analysis was submitted as evidence—has resurfaced as the U.S. Supreme Court consented to hear Briscoe v. Virginia.
At question in Briscoe, is whether giving the defense the opportunity to call a lab analyst for testimony complies with the obligations set out by the Confrontation Clause which requires that defendants have an opportunity to face their accuser. This case provides an opportunity for the Supreme Court to reverse or mitigate the Melendez ruling.
More significantly, since Melendez, Justice Sonia Sotomayor has replaced David Souter—part of the majority in Melendez—on the bench. As a former Manhattan prosecutor, there is speculation that Sotomayor may be more inclined to ease the prosecution’s burden of producing lab analysts for testimony.
An amicus brief from 26 states plus the District of Columbia was filed detailing the burden that the Melendez-Diaz ruling has imposed on underfunded and understaffed state labs having to call on analysts to appear in court.
As we went to press, the oral arguments had been heard, but gave little indication of Sotomayor’s position. She asked many questions of both sides appearing first to doubt the Petitioner’s claim that the prosecution had any obligation to call a witness whose statement was submitted, let alone an obligation to ask enough questions of them that the defense could substantially challenge their testimony in cross examination.
“Would swearing the witness in and saying to the witness ‘Is this your report’ and the witness saying ‘Yes,’…be unconstitutional…given our case law that says that any prior statements by a witness are admissible once the witness is on the stand?” Sotomayor asked.
When the Respondent’s case was being presented, however, Sotomayor changed gears, challenging the validity of a “trial by affidavit.”
The issue of video testimony was also raised during oral arguments. A solution that, if approved by the courts, would relieve some of the burden on analysts being called to testify. Several states, including Michigan, have already begun to use video testimony in some instances, though the defense must agree to the medium.
While we await the ruling in Briscoe v. Virginia, states are finding ways to deal with the myriad of challenges that the current economic climate, paired with an increase in the amount of evidence collected for analysis, has created. If your department has a creative solution to these challenges or if there are topics you would like to see more of in Forensic Magazine, e-mail us.