Confronting the Forensic Confirmation Bias

“The Sixth Amendment Confrontation Clause provides that, ‘[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.’  At the core of the Confrontation Clause is the need to ensure the accuracy and trustworthiness of witness testimony by requiring witnesses to take the stand and face cross-examination in the course of criminal trials.  The Supreme Court endorsed this policy of ensuring testimonial accuracy by expanding the conventional meaning of ‘witness’ to encompass analysts who conduct forensic tests for criminal prosecutions.  The consequence of this expansion was that courts generally declined to admit forensic test results as evidence when the analyst who performed the test was not available for cross-examination, an outcome reached by the Supreme Court in two landmark cases: Melendez-Diaz v. Massachusetts  and Bullcoming v. New Mexico.  Only a year after Bullcoming, however, the Supreme Court delivered a fractured opinion in Williams v. Illinois that contravened the general principles of the Confrontation Clause doctrine at the time.  Specifically, the Court allowed the admission of a DNA report into evidence even when only a surrogate witness was available to testify to the results of the DNA test.”

“In Williams, the dissent vehemently argued that the ruling would erode criminal defendants’ constitutional rights to ensure the accuracy of forensic test results.  This Comment argues the counterintuitive proposition that the Williams decision was actually the first step towards eliminating the true threat to both the accuracy of forensic evidence and the spirit of the Confrontation Clause—an implicit bias known as the forensic confirmation bias.”