Published on: Tuesday, November 20, 2018

Yesterday, the United States Supreme Court denied certiorari in Stuart v. Alabama, No. 17-1676, which asked the Court to consider “whether the Alabama courts’ decision to permit the introduction of written ‘reports’ to law enforcement, regarding blood alcohol tests, into evidence for the truth of the matters asserted therein — despite the lack of testimony from the person who performed the test and signed the report, or any witness who personally involved in the testing of the blood samples in question — is contrary to Bullcoming v. New Mexico, 564 U.S. 647 (2011). Justice Gorsuch, joined by Justice Sotomayor, dissented in from the denial of certiorari.  The entire four page dissent is worth a read because it illustrates the views of a new Justice on the Confrontation Clause and highlights the confusion “sown” by the Supreme Court’s opinions in this area of the law.  Here are some highlights:

More and more, forensic evidence plays a decisive role in criminal trials today. But it is hardly “immune from the risk of manipulation.” Melendez-Diaz v. Massachusetts, 557 U. S. 305, 318 (2009). A forensic analyst “may feel pressure—or have an incentive—to alter the evidence in a manner favorable to the prosecution.” Ibid. Even the most well-meaning analyst may lack essential training, contaminate a sample, or err during the testing process. See ibid.; see also Bullcoming v. New Mexico, 564 U. S.  647, 654, n. 1 (2011) (documenting laboratory problems). To guard against such mischief and mistake and the risk of false convictions they invite, our criminal justice system depends on adversarial testing and cross-examination. Because cross-examination may be “the greatest legal engine ever invented for the discovery of truth,” California v. Green, 399 U. S. 149, 158 (1970) (internal quotation marks omitted), the Constitution promises every person accused of a crime the right to confront his accusers. Amdt. 6.

That promise was broken here. . . .

Respectfully, I believe we owe lower courts struggling to abide our holdings more clarity than we have afforded them in this area. Williams imposes on courts with crowded dockets the job of trying to distill holdings on two separate and important issues from four competing opinions. The errors here may be manifest, but they are understandable and they affect courts across the country in cases that regularly recur. I would grant review.

The petition for writ of certiorari, answer, and reply are available on the Supreme Court’s website here.  The Training Division provides resources on the right to cross-examination.