ON Tuesday, the Supreme Court will hear oral arguments in Williams v. Illinois, the latest in a string of cases addressing whether the Sixth Amendment’s confrontation clause — which gives the accused in a criminal case the right “to be confronted with the witnesses against him” — applies to forensic analysts who produce reports for law enforcement. In other words, should an analyst responsible for, say, a fingerprint report have to show up at trial to face questions about the report?Fisher is correct. Confronting and cross-examining witnesses is not just good policy, it is essential to our American system of justice and it is clearly required by our Constitution.
A logical application of the law produces an easy answer: Yes. The court has defined a “witness against” a defendant as a person who provides information to law enforcement to aid a criminal investigation. That is exactly what forensic analysts do.
Subjecting forensic analysts to cross-examination is also good policy. According to a recent National Academy of Sciences study, forensic science is not nearly as reliable as it is perceived to be. DNA specimens, for instance, are sometimes contaminated; fingerprint, ballistics and even run-of-the-mill drug and alcohol analyses depend on human interpretation and thus are subject to error. Worse, investigations over the past decade have revealed outright incompetence and fraud in many crime labs. So it makes sense to subject the authors of lab reports to cross-examination — a procedure the court has called “the greatest legal engine ever invented for the discovery of truth.”
He concedes that allowing the defendants to get their 6A rights will cost money:
It unquestionably costs money to deliver the fundamental demands of justice. But the price is not nearly so high as the states usually claim.I do not believe that there are any significant costs. DNA tests used to be expensive and require uncommon expertise, but not any more. They are cheap and the price is still dropping rapidly. The NY Times reports:
DNA sequencing is becoming faster and cheaper at a pace far outstripping Moore’s law ... In only a year or two, the cost of determining a person’s complete DNA blueprint is expected to fall below $1,000.And that is for the complete DNA sequence that used to cost a billion dollars. The DNA tests for police work sequence far less than 1% of it. The defense should also be able to send samples to a lab of its own choosing, since it is so cheap and easy.
As more and more cases hinge on evidence like on the CSI TV show, we should be using independent labs following recognized standards. They should be fully accountable, and be able to testify about exactly what they do. The last thing we need is to convict people based on anonymous reports from government bureaucrats.