CONFRONTING THE TWENTY-FIRST-CENTURY MARIAN EXAMINATION.

• Author: McLane, Lauren

"To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination." --Justice Scalia, Crawford v. Washington (1) INTRODUCTION

Today, in criminal courtrooms across our nation, the accused, at trial, are routinely denied what was long ago purposefully implemented by our Founders, the Framers of our Constitution and its Sixth Amendment Confrontation Clause: "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." (2) Our Framers meant to create a clause that would forever test the reliability of evidence introduced against the criminally accused. Certainly, not many at that time claimed to know what the Twenty-First century would bring, much less the kinds of evidence that would be introduced at a criminal trial. Nevertheless, the clause's purpose has withstood the test of time and remains the same, though now it is tasked with not only traditional witness statements, but also DNA, toxicology, alcohol breath test results (i.e., often multi-analyst forensic disciplines where several or more analysts are involved in the testing process) and other similar types of forensic evidence. (3)

Haunted by the execution of Sir Walter Raleigh and the misuse of the Marian examination, the Framers set out to eliminate arbitrary and untested out-of-court processes meant to substitute for in-court justice and truth seeking. (4) The Marian examination, derived from the Marian Committal Statute of 1555, "arrang[ed] for the examining [justices of the peace] to gather evidence for trial and to bind witnesses to appear [at trial] to testify." (5) Although it was not intended to serve as an out-of-court replacement for live testimony, in practice (at times) the Marian examination allowed for the introduction of this evidence at trial without confrontation. (6) The oftcited 1603 trial of Sir Walter Raleigh, who was convicted of treason and sentenced to death, is the prime example. (7) Raleigh begged the court to bring his accuser, Lord Cobham, before him so that the reliability of Cobham's out-of-court statements could be tested. (8) Raleigh was denied this opportunity; instead, apparently satisfied with the inherent reliability (i.e., presumed reliability) of the Marian examination process--where accusers and witnesses were examined by justices of the peace prior to the trial and such examinations were recorded and then used at trial in lieu of in-court testimony--the judicial officials in Raleigh's trial thought his request preposterous. (9) It was this practice, this acceptance of untested (and presumed reliable) evidence that the Framers sought to forbid. (10)

Our Supreme Court continued in the footsteps of our Framers in its modern-day jurisprudence for some time with Justice Scalia at the helm in Crawford v. Washington. (11) In Crawford, the Court looked to the Framers for guidance and decisively rejected out-of-court evidence that was presumed already tested, eliminating "amorphous notions of 'reliability'" (12) that had been the law of the land since Ohio v. Roberts (13) in 1980. Specifically, the Crawford court created a new approach to confrontation--what it termed a "core class of 'testimonial' statements" that must be met with confrontation--in the place of the Roberts rule where reliability of out-of-court evidence that met a "firmly rooted" hearsay exception was inherent. (14)

Since its 2004 decision in Crawford, the Court, especially within the forensic evidence context, has struggled to pinpoint what out-of-court evidence it must reject to stay true to the Framers' course and purpose in adopting the Confrontation Clause. (15) While this quest continues in cases involving "conventional witness" statements, i.e., those made by non-scientific witnesses, the Court's strife is never more present and cognizable than in cases where present-day technology and forensic evidence are at issue. (16) Indeed, in many respects, the Court's trend with regard to forensic evidence appears to be headed back in time to 1980 where inherent reliability was the rule, monitored only by "firmly rooted" exceptions to the hearsay rule. (17) That is, more and more, what appears to be condoned by our High Court and, significantly, our lower courts that deal with forensic evidence day in and day out, is that the scientific process and its human counterparts are inherently reliable. (18) After all, it is science.

Forensic evidence in cases involving multi-analyst laboratory settings, or "assembly line" forensic analysis, such as DNA testing, toxicology, and alcohol breath testing, have become the modern-day Marian examination. (19) It is routine practice across our country in both misdemeanor and felony cases to allow surrogate or conduit experts (i.e., those witnesses who relay a non-testifying analyst's work or findings) who never laid a hand or an eye on the evidentiary sample nor operated the machine that analyzed it to testify in lieu of the actual "performing analyst." (20) This is the new, Twenty-First-Century Marian examination, where science and its process is presumed to be inherently reliable and, therefore, is insulated from, as Justice Scalia put it, "the crucible of cross-examination." (21)

This practice of insulation plays out in the courtroom in a variety of ways, particularly in forensic disciplines where laboratories have chosen to assign multiple analysts to the analysis of a single evidentiary sample. (22) First, the "surrogate expert" (23) may not actually be an expert at all; specifically, where the expert lacks the requisite qualifications and knowledge under Evidence Rule 702 to testify about a specific area that is intimately bound up with the forensic evidence. (24) Second, the surrogate expert may not have seen, let alone actually tested or observed, the analysis of the evidentiary sample at issue; instead, testifying blissfully ignorant and presuming that the many steps in the cumulative scientific process before the final stage (or report) was performed competently. (25) Third, the surrogate may not have reviewed any of the "raw data" to assess the appropriateness of the performing analyst's ultimate conclusions. (26) Fourth, the surrogate may not be employed by or at the bare minimum, know and understand the protocols and practices of the testing laboratory. (27)

It is undisputed that forensic evidence is fallible. (28) If that were not true, we would not have to regularly remind the courts of Josiah Sutton who was wrongfully convicted of rape and sentenced to twenty-five years in prison based on erroneous DNA expert testimony. (29) As in Sutton's case, many other innocent individuals have been wrongfully accused or, far worse, convicted and imprisoned for years of their lives due to bad science and dishonest or incompetent analysts. (30) Indeed, flawed forensics and the misapplication of forensic science is the second leading cause of wrongful convictions in approximately forty-four percent of the more than 365 DNA exonerations. (31) Even if the end result is not a wrongful conviction, we must inquire: is this the kind of system our Framers envisioned, the kind of system we want? Where evidence, due to its scientific nature, is presumed reliable and, thus, accepted without confrontation?

Further, to say that science is powerful is a severe understatement; it convicts like no other witness or evidence. "As judges have long recognized, forensic evidence can play an important role in criminal trials. Juries may give special weight to testimony by forensic scientists." (32) Recently, Justice Gorsuch noted, "[m]ore and more, forensic evidence plays a decisive role in criminal trials today. But it is hardly 'immune from the risk of manipulation.'" (33) As Chief Justice Bender for the Colorado Supreme Court acknowledged in his dissent in Marshall v. People, (34) "[r]eliance upon forensic evidence has increased in criminal cases and the need to retain the traditional right of cross-examination must nonetheless be preserved." (35)

There are, at minimum, four distinct ways cross-examination is critical to the testing of forensic science and, potentially, to the prevention of wrongful convictions based on flawed forensics. First, it is capable of unmasking mistake or mischief in forensic work or, at the very least, testing the competency of the responsible performing analyst. (36) Second, even when cross-examination has not been successful in preventing wrongful convictions, it has hastened exonerations years later. (37) Next, the opportunity to cross-examine the performing analyst incentivizes effective assistance of counsel. (38) Finally, as scholar Jennifer Mnookin has written, with former Attorney General Jeff Session's decision, last year, to end the National Commission on Forensic Science (NCFS), "we now lack any locus for a broadly conceived, authoritative panel of experts and stakeholders to convene regularly and assess the state of forensic science and recommend reforms." (39) Thus, there is little in the way of testing the reliability of the forensic disciplines these days. Confrontation remains the best and most instantly available protection against the introduction of flawed forensic evidence in our criminal trials. (40) And, let us not forget, it is a constitutionally guaranteed protection without exception. (41)

Therefore, the fact that it is difficult to answer questions such as who is an "analyst" (42) or who, in the "collective" that is the scientific process, (43) must testify for confrontation purposes is no excuse for the Supreme Court's lack of guidance in this area. Recently, Justice Gorsuch (joined by Justice Sotomayor) wrote of the Court's confrontation clause jurisprudence, "we owe lower courts struggling to...