Scientific Evidence

Continuing Crawford/Confrontation “Confusion”

Jules Epstein

It is rare that the denial of a Petition for Writ of Certiorari garners much press attention, but the Court’s refusal to accept the case of Stuart v. Alabama (No. 17-1676, 2018 U.S. LEXIS 6779 (Nov. 19, 2018)) is one such instance. The headline in SLATE was “Neil Gorsuch and Sonia Sotomayor Have Started Teaming Up to Protect Criminal Defendants” (https://slate.com/news-and-politics/2018/11/neil-gorsuch-sonia-sotomayor-sixth-amendment-dissent.html, last visited Nov. 24, 2018), and the more staid Bloomberg Law described it as “Justices Avoid Confrontation Case over Gorsuch, Sotomayor Dissent.” (U.S. L. Wk., Nov. 19, 2018 (emphasis added).) The dissent to the denial of certiorari complained of “confusion in courts across the country” and maintained that “the problem appears to be largely of our creation[.]” The upshot for criminal law practitioners—judges, prosecutors, and defense counsel—and forensic science providers is that the application of the Confrontation guarantee as applied to forensic lab reports remains in flux.

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