Is there a right to confront forensic evidence?

One of the basic rights guaranteed to criminal defendants is the right "to be confronted with the witnesses against" him or her. This means, in general, that the prosecution may not rely on the testimony of someone not present in court and subject to cross-examination. For example, the prosecution could not have a police officer testify that "the victim told me that the defendant assaulted her."

Where this becomes more complicated, however, is with forensic evidence. This typically involves someone performing an analysis of some kind and then comparing the results of that analysis to something, such as physical evidence in the case of sex crimes. As the backlogs in state-run forensic laboratories increase, states are sometimes contracting private laboratories to assist. These labs are not always located in the same area as the accused, however. Does the state then need to bring a lab technician from the other side of the country to testify about the work done?

The answer is that they may not need to do so. A recent case decided by the Wisconsin Supreme Court seems to bear this out, although the question remains a difficult one, even for the U.S. Supreme Court. In the Wisconsin case, Wisconsin v. Deadwiller, a man was charged with sexually assaulting two women in two separate incidents (although they were tried as one case). DNA evidence was recovered from both victims. This evidence was then sent to a private lab in another state for a DNA profile to be created. Once the private lab did so, it returned the results to the State Crime Lab. Once there, a scientist employed by the SCL evaluated the private lab's results and entered the DNA profiles into the state database and searched for matches, finding the defendant.

During the trial, the defendant argued that the admission of the DNA profiles obtained by the outside lab violated his right to confrontation, because the technician from the private lab was not provided to testify.

The court ultimately ruled that the defendant's rights were not violated. The conclusion was based on a U.S. Supreme Court case, Williams v. Illinois, that was heavily divided, to the point that there was no actual majority. Five of the justices concluded, however, that similar evidence in a similar case was allowed. The Wisconsin Supreme Court relied heavily on that case as well as earlier Wisconsin precedent, and found that having an expert who had reviewed the evidence present at trial was significant. The Court also relied on the fact that other evidence was used to prove that the DNA obtained from the victims was the same material analyzed by the private lab.

This area of law is still very much under development, and the facts of an individual case could have a major influence on the results. If you find yourself under suspicion or accused of a crime, the best course is to consult with an attorney as soon as possible.