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Today forensic evidence has increasingly become a key and powerful witness against the accused in criminal trials In the Sixth Amendment Confrontation Clause our Framers meant to create a safeguard that would forever test the reliability of evidence introduced against a defendant As Justice Scalia reminded us in Crawford v Washington ÔÇ£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 crossexaminationÔÇØ Nonetheless courts across our nation routinely reject such reliability testing in denying confrontation challenges related to forensic evidence particularly in multianalyst forensic disciplines such as alcohol breath testing toxicology and DNA testing In large part this is because our lower courts after the United States Supreme Court's fractured opinion in Williams v Illinois were left to their own devices in application of confrontation clause jurisprudence to forensic evidencebrbrAlthough our criminal justice system has evolved into a system that encompasses not only ÔÇ£conventional witnessesÔÇØ but also science and its process as an important witness confrontation clause analysis has remained relatively stagnant The application of the ÔÇ£conventional witnessÔÇØ confrontation rules ' first borne out of Crawford v Washington and Davis v Washington and then later refined in Michigan v Bryant and Ohio v Clark ' by lower courts in the forensic evidence context has been unpredictable and often arbitrary Courts have condoned the insulation of forensic evidence by denying the right to crossexamine the analyst who performed the scientific testing hailing science as inherently reliable In this way our courts have returned confrontation clause analysis to the SixteenthCenturyMarian Examination such as the process relied upon to convict Sir Walter Raleigh in 1603 this historical disastrous result served as the primary impetus for our Framers' adoption of the clausebrbrThe Confrontation Clause and its guarantee of crossexamination of witnesses against the accused serves as a primary shield against unreliable and flawed forensic evidence And the history of forensics in the courtroom undeniably supports that science is far from infallible Without an entity such as the National Commission on Forensic Science decommissioned by former Attorney General Jeff Sessions in 2017 an accused's right to confrontation remains an indispensable check on the reliability of forensic evidence during a criminal trial brbrIn the TwentyFirst Century as the use of scientific evidence rapidly grows in criminal trials courts and practitioners are in need of a new confrontation clause approach for such evidence At first blush Justice Thomas's ÔÇ£formality and solemnityÔÇØ requirement for confrontation clause applicability appears too narrow however a modification of this approach as applied to forensic evidence should be adopted by the United States Supreme Court Justice Thomas's approach needlessly overemphasizes the form of evidence such as whether it is an affidavit or declaration in deciding the reach of the Confrontation Clause A closer look at history demonstrates that our Framers were far more concerned with a process that insulated evidence from reliability testing than the mere form of evidence Indeed it was not the mere form of Sir Walter Raleigh's accuser's examinations or letters used against Raleigh at trial that were egregious as much as it was the process accepted and condoned by the court and its officials during the trialbrbrScience and its process is nothing if not both formal and solemn Science is directed and governed by numerous standards protocols and procedures Under a modified version of Justice Thomas's ÔÇ£formality and solemnityÔÇØ approach where process over mere form is emphasized forensic evidence is formal and solemn and within the reach of the Confrontation Clause Therefore the performing analyst or an observer to the scientific testing must be confronted Our Supreme Court should adopt this modified approach in the forensic evidence context providing decisive and predictable guidance to our lower courts at its earliest opportunity br

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