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36 New Eng. J. on Crim. & Civ. Confinement 263 (2010)
Beyond the Crime Laboratory: The Admissibility of Unconfirmed Forensic Evidence in Arson Cases

handle is hein.journals/nejccc36 and id is 267 raw text is: Beyond the Crime Laboratory:
The Admissibility of Unconfirmed
Forensic Evidence in Arson Cases
Bruce L. Ottley*
I. THE RELIABILITY OF FORENSIC EVIDENCE
In  June   2009, the    Supreme    Court decided     Melendez-Diaz     v.
Massachusetts.' Writing for the majority in a 5-4 decision, Justice Antonin
Scalia held that three certificates of analysis issued by a Massachusetts
state crime laboratory, reporting the results of the analysis of nineteen
small plastic bags allegedly containing cocaine, were within the core class
of testimonial statements covered by the Confrontation Clause of the Sixth
Amendment.2 As such, the certificates were functionally identical to live,
in-court testimony.3 Thus, Justice Scalia concluded that the forensic
analysts who prepared the certificates were witnesses for purposes of the
Sixth Amendment and that the prosecution had an obligation to make the
analysts available so that the defendant could confront and cross-examine
them at trial.4 Although the defendant in Melendez-Diaz was charged with
* Professor, DePaul University College of Law. B.A., University of Missouri-Kansas City;
M.A., J.D., University of Iowa; L.L.M., Columbia University. Co-author (with John F.
Decker) of ARSON LAW AND PROSECUTION (Carolina Academic Press) (2009).
1.  Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527, 2527 (2009).
2.  Id. at 2530-32. The Confrontation Clause of the Sixth Amendment states that in
all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the
witnesses against him. U.S. CONST. amend. VI.
3.   Melendez-Diaz, 129 S. Ct. at 2532.
4.  Id. Four days after issuing its decision in Melendez-Diaz, the Supreme Court
granted certiorari in Briscoe v. Virginia. Briscoe v. Virginia, 130 S.Ct. 1316 (2010). Briscoe
gave the Court an opportunity to decide whether a State has fulfilled its obligation under the
Confrontation Clause if a prosecutor introduces a certificate of laboratory analysis without
presenting the analyst who prepared it if the defense is provided the right to call the analyst
as its own witness. Id. However, the Supreme Court did not decide that issue and remanded
the case for further proceedings not inconsistent with Melendez-Diaz. Id. In Briscoe, which
is known as Magruder v. Commonwealth, 275 Va. 283, 288-307 (Va. 2008), at the state
level, the Virginia courts found no error in the admission of the laboratory certificate alone

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