Forensic Anthropology and the United States Judicial System

Laura C. Fulginiti, Kristen Hartnett-McCann, Alison Galloway

• Publisher: Wiley
• Year: 2019
• ISBN:
  9781119469971
• Edition: 1
• Topic: Medicine
• Subtopic: Forensic Medicine

A guide to the interface between forensic anthropology and the United States legal system

Designed for forensic anthropologists at all levels of expertise, Forensic Anthropology and the United States Judicial System offers a comprehensive examination of how to effectively present osteological analyses, research and interpretations in the courtroom. Written by noted experts, the book contains an historical perspective of the topic, a review of current legislation that affects expert testimony as well as vital information on courtroom procedure and judicial expectation of experts.

A comprehensive book, Forensic Anthropology and the United States Judicial System explains how to prepare case reports and offers suggestions for getting ready for pre-trial interviews. The book also includes detailed information on affidavits, fee structures and dealing with opposing experts. This book is part of the popular Wiley – American Association for Forensic Sciences series and:

• Offers a unique volume that addresses the interface between forensic anthropology and the legal system
• Contains detailed guidelines for expert testimony by forensic anthropologists with all levels of experience, from beginner to expert
• Includes information from the perspective of the Judiciary in terms of process and expectations of the Court
• Shows how to maintain independence from, and collaborate with other experts
• Presents detailed explanations of current legislation impacting forensic science

Forensic Anthropology and the United States Judicial System is an information-filled guide for practitioners of the rapidly growing field that integrates forensic sciences and the judicial system.

Part I
Context

1
Confrontation: where forensic science meets the sixth amendment

Jennifer C. Love¹, and Laura C. Fulginiti²

¹ District of Columbia Office of the Medical Examiner, Washington, DC, USA

² Maricopa County, Office of the Medical Examiner, Phoenix, AZ, USA

“There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.” (Pointer v Texas, 1965, Section I, para.4).

The Confrontation Clause compels the witness “to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” (Mattox v United States, 1895, Section 3, para. 4).

Several United States (US) Supreme Court rulings, framed by the Confrontation Clause of the Sixth Amendment, have spoken directly to the admissibility of forensic analysis and the testimony of forensic scientists. The Confrontation Clause requires criminal defendants to have an opportunity to cross‐examine witnesses against them. When the witness is an expert, like a Forensic Anthropologist, their reports can be considered “out‐of‐court testimony,” which means the expert has to appear in court and the defendant has to have an opportunity to question them. Supreme Court rulings on the Confrontation Clause have held that an opportunity for cross‐examination is required even if the reports are considered to be reliable (Crawford v. Washington, 541 U.S. 36 (2004)), classified forensic analytical reports as out‐of‐court testimony subject to this requirement, (Melendez‐Diaz v. Massachusetts, 557 U.S. 305 (2009)), and limited the use of surrogate witnesses to meet this requirement (Bullcoming v. New Mexico, 564 U.S. 647 (2011)). But the Supreme Court has so far failed to define who must be called to testify when admitting complex analyses involving several analysts (Williams v. Illinois, 567 U.S. 50 (2012)). In these rulings, the US Supreme Court responded to specific case facts set before it and provided guidance for the case at hand. Collaterally, however, these decisions have a ripple effect throughout the legal system, impacting cases with similar but not identical facts, creating significant room for interpretation and at times causing confusion for the lower courts. Furthermore, the Court issued contradicting rulings in two cases addressing the testimony of forensic analysts (Bullcoming v. New Mexico, Williams v. Illinois). These piecemeal rulings leave prosecutors, defendants, and judges to navigate complex forensic analyses that involve multiple analysts with little direction, catching forensic scientists in the turbulence. Forensic practitioners must be aware of these US Supreme Court decisions, understand their impact on the admissibility of forensic reports, and prepare their laboratory practice to meet the requirements of the legal system.

In this chapter, the US Supreme Court opinions that impact forensic practitioners are presented in chronological order. Some of the cases (Melendez‐Diaz v. Massachusetts, Bullcoming v. New Mexico, Williams v. Illinois) directly address admissibility of forensic analytical reports and analyst testimony, while others (Ohio v. Roberts, 448 U.S. 56 (1980), Crawford v. Washington) provide historical background. Before the court cases are presented, the history of the Sixth Amendment and its importance to the legal system are reviewed. After the court cases, the impact of the Court's opinions on the practice of forensic science is discussed and suggestions for best practice to insure the admissibility of forensic analysis are presented.

1.1 Sixth amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

The Sixth Amendment was passed by Congress on September 25, 1789 and ratified on December 15, 1791 (Bibas and Fisher n.d.). The purpose of the Sixth Amendment was to legitimize criminal prosecution ensuring accuracy and fairness. At the time the Founding Fathers conceived the Bill of Rights, law was maintained by local sheriffs and unsworn men serving as constables or night watchmen. Typically, criminal cases were initiated by an accuser, not a public prosecutor. The accuser and defendant met in trial with no legal counsel, representing themselves and bringing forth witnesses to support their stories. Trials were short sessions (minutes to hours) of arguing in front of a 12‐member jury made up of local citizens who knew both the accuser and the accused. The jurors observed both the accuser and the accused throughout the trial, debated if the defendant was guilty and decided if he deserved mercy. Following the government's power to punish, the jury identified the appropriate punishment, including the death penalty. The process assured the community that justice was carried out swiftly, impartially, and fairly (Bibas and Fisher n.d.). The Sixth Amendment strengthened the adversarial process and maintained the process of each side conducting its own investigation, presenting its own evidence and arguing its side in open court.

The Compulsory Process Clause and the Confrontation Clause directly address the witness as well as the defendant. The Compulsory Process Clause enables a defendant to subpoena a witness and to force him to testify. The Confrontation Clause requires prosecution witnesses to testify under oath and subjects them to cross‐examination. The witnesses must testify in court in the presence of the defendant. The Clauses also guarantee the defendant's right to be present in the courtroom throughout the trial (Bibas and Fisher n.d.).

Since the Sixth Amendment was ratified, the practice of law enforcement and the legal system has evolved. Professional police forces became responsible for investigating crimes and arresting suspects. Public prosecutors initiated legal proceedings and defendants hired lawyers to represent them. In some communities, public defender offices were created. Judges created rules of evidence and provided clear instructions to juries. Meanwhile, lawyers began selecting jurors. Trials grew longer and became more complex (Bibas and Fisher n.d.).

By the middle of the nineteenth century, the Supreme Court had ruled that the Sixth Amendment protections applied to state courts as well as federal, greatly expanding the reach of the Amendment. As a result, the Court has had multiple occasions to define the Amendment's protections.

1.1.1 Ohio v. Roberts, 448 U.S. 56 (1980 ). Argued November 26, 1979 – decided June 23, 1980

On January 7, 1975, Herschel Roberts was arrested and charged with forgery of checks in the name of Bernard Isaacs and possession of stolen credit cards belonging to Bernard Isaacs. A preliminary hearing was held in Municipal Court. The defense called Anita Isaacs, Bernard Isaacs' daughter, as thei...

Table of contents

• Cover
• Table of Contents
• Notes on contributors
• Preface
• Series preface
• Foreword
• Acknowledgments
• Part I: Context
• Part II: The rubber meets the road
• Index
• End User License Agreement