Courtesy of CrimProfBlog:
Jesse J. Norris (Beloit College) has posted Who Can Testify About Lab Results after Melendez-Diaz? The Challenge of Surrogate Testimony to the Confrontation Clause (American Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
In Melendez-Diaz v. Massachusetts, the U.S. Supreme Court held that a certificate presenting forensic lab results was testimonial evidence, and that defendants thus have the Sixth Amendment right to cross-examine the analyst. Despite this ruling, courts remain divided on the question of surrogate testimony: when can an expert witness, such as a lab supervisor or outside expert, testify in place of the analyst? How this question is answered has enormous consequences for the future of the Confrontation Clause and the criminal justice system more generally. Widespread surrogate testimony threatens to undermine confrontation rights and contribute to false convictions, yet banning it altogether could result in defendants going free whenever the forensic analyst is unavailable and the test cannot be repeated.