Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

Note — Volume 97, Issue 1

97 Va. L. Rev. 199
Download PDF

In 2009, the Supreme Court in Melendez-Diaz v. Massachusetts, interpreted the Confrontation Clause to require forensic analysts to testify in court before a forensic analyst’s report can be admitted into evidence against a criminal defendant. Ever since, law enforcement groups, lower federal courts, state supreme courts, and commentators have been asking the same question: Who can fulfill the role of the testifying analyst? Put more specifically, would allowing a “surrogate witness” like a laboratory supervisor or a single member of a team of forensic analysts satisfy the Confrontation Clause? It is an issue that is currently before the Court, thanks to a petition for a writ of certiorari filed on behalf of Richard Pendergrass, who is seeking review of a decision of the Indiana Supreme Court permitting the use of surrogate witnesses.

This note seeks to answer this question by tracking the ongoing debate between originalist interpretation and policy in the context of the Confrontation Clause. It argues that given the role policy has played in the analogous right to counsel context, the continuing debate over the reliability of forensic science, and the pressure from law enforcement groups who suggest surrogate witnesses are a necessary tool to mitigate the impact of Melendez-Diaz, policy arguments will need to be addressed, and may even prove decisive in the battle over surrogate witnesses. Finally, this paper proposes a compromise approach, where the Court could allow surrogate witnesses who have direct contact with the testing process as part of the laboratory’s standard procedure.

Click on a link below to access the full text of this article. These are third-party content providers and may require a separate subscription for access.

  Volume 97 / Issue 1  

The Complexity of Jurisdictional Clarity

By Scott Dodson
97 Va. L. Rev. 1

Original Habeas Redux

By Lee Kovarsky
97 Va. L. Rev. 61

Will Employers Undermine Health Care Reform by Dumping Sick Employees?

By Amy Monahan and Daniel Schwarcz
97 Va. L. Rev. 125

Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

By Nicholas Klaiber
97 Va. L. Rev. 199