Thursday, August 8, 2019
Laird C. Kirkpatrick (George Washington University - Law School) has posted The Admissibility of Forensic Reports in the Post-Justice Scalia Supreme Court on SSRN. Here is the abstract:
Forensic reports apparently linking a defendant to a crime often constitute the most powerful and persuasive evidence that can be offered at a criminal trial. Yet the Supreme Court is sharply divided about the constitutional requirement for admitting such reports under the Confrontation Clause. In the three cases addressing this question the Court divided 5-4 in its first two decisions and 4-4-1 in its most recent opinion. In a recent dissent to the denial of a Petition for a Writ of Certiorari in Stuart v. Alabama, Justice Gorsuch noted that the Court’s opinions on this question “have sown confusion in courts across the country.” Justice Gorsuch urged his colleagues to clarify the law in this area and went on to reveal his own views about the application of the Confrontation Clause to forensic reports. His views, which are analyzed in this article, are of critical importance because he is the potential fifth vote who could either overturn or reaffirm the controlling case law in this area.