Let’s put the Claws back into Confrontation!


We once had an appeal where the prosecution called every cop, firefighter, ambulance paramedic and dogcatcher in Staten Island to have each one testify how he or she responded to the scene, saw the victim with his head blown away and, based on his or her training and experience, concluded he was dead.

And since every cop, firefighter, ambulance paramedic and dogcatcher had to tell the jury where they went to school, what jobs they’d had since graduation and every rank they’d held in their present job, the testimony took about four days. In the meantime, Staten Island could have burned down, been overrun by dogs and criminals and the population decimated, what with all the police stations, firehouses, emergency rooms and dog pounds emptied of personnel because they had to go testify in court.

Naturally, the defense would have been happy to stipulate that the victim was dead, but perish the thought! That would have deprived the People of “the legitimate moral force of their evidence.”

So how come the roles are reversed when it comes to crime lab evidence?

The Supremes have held that the right of an accused to confront the witnesses against him means that if the People claim his DNA was found in some controversial place, he has the right to cross-examine the analyst(s) who did the tests.  Even if the analysts have “the scientific acumen of Mme. Curie and the veracity of Mother Teresa,” they’re still witnesses against the defendant under the Confrontation Clause whom the defendant is entitled to cross-examine.  Melendez-Diaz v. Massachusetts per Scalia, J.

A giant howl went up from the People and their buddy, the Medical Examiner’s Office. What?? Empty out the crime labs while rapists roam the streets? Tear analysts away from their microscopes when they’re busy exonerating the innocent? Thereby – according to DA Vandal – forcing the People to fall back on unreliable evidence like eyewitness identification! We’re not making this up.

Here’s a typical trial:

DA: The People call Little Miss Muffet as an expert in DNA. Miss Muffet, please state your qualifications.

Ms. Muffet: (sitting on a tuffet and turning towards the jury with a winning smile) I’m a Criminalist III at the Office of the Chief Medical Examiner. I have a degree in forensic science from Madame Tussaud’s.  All of our analysts possess the scientific acumen of Mme. Curie and the veracity of Mother Teresa.

Defense: Objection!

Court: Overruled. It’s not being offered for its truth. Please continue, dearie. 

Ms. Muffet: DNA means you get one from your mother and one from your father. We received the knife used by the defendant to intentionally murder the innocent victim and noticed blood on the handle –

Defense: Objection!

Court: Overruled.  [To jury] Ladies and Gentlemen, since Miss Muffet is an expert with the scientific acumen of Mother Teresa and the veracity of Mme. Tussaud, she’s permitted to rely on matters not in evidence purely as the basis of her opinion and not for their truth.  If you think this neutral, scientific, candid, attractive, well-spoken young lady has some kind of motive to lie, you are of course free to think so.

Ms. Muffet: Golly, thank you, Your Honor. So we took shavings from the wooden knife handle and examined them with our Captain Kirk 3-way subatomic hypotenuse and determined that it was a match.

DA:  After you matched the blood to the defendant to a reasonable degree of infallible certainty, what if anything did you do next?

Ms. Muffet: We uploaded the shavings into the National Shaving Database and determined that they came from the knife.

DA: And what are the probabilities that they did not match the knife?

Ms. Muffet: You’d need 40 bazillion galaxies, each containing 100 bajillion planets, each with a population of 50 quintrillion zillion.

Court: Thank you, Miss Muffet.

Ms. Muffet: Thank you, Judge.

Court: Obviously that settles it. Oh, did you want to cross-examine?

Defense: Miz Muffet, did you perform these tests yourself?

Ms. Muffet: Goodness, no.  The testing was done according to perfect protocols by an assembly line of trolls in the basement. I read their reports and agree with them.

Defense: You mean you never saw any of the testing being done?

DD: (patiently) As I said, I read the report and agreed with it.

Defense: How do you know the protocols were followed?

Ms. Muffet: (very patiently) Because we at the OCME have the scientific acumen of Mother Tussaud and the veracity of –

Defense: Your Honor, this violates my client’s right to confrontation! We have the right to cross-examine the analysts who wrote the reports, not just whatever trained seal the OCME chooses to send in!

Court:  Trained seal indeed! I’m certainly not having a bunch of trolls cluttering up my courtroom. Overruled.

Stay tuned for the appeal!

About Appellate Squawk

A satirical blog for criminal defense lawyers and their friends who won't give up without a squawk.
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4 Responses to Let’s put the Claws back into Confrontation!

  1. Bill Branham says:

    This is not a response to the article, but I can’t find anywhere to contact you directly. (So feel free to delete this comment.) I was interested in permission to use one of your cartoons, specifically interrogation-cartoon1.jpg from 2011/03. Please advise. Thank you. Bill Branham


    • Delete a comment? Perish the thought! The only comment we ever deleted was a call to kill all police, from KuKluxKlan.org. We’re not making this up. We’re thrilled you want to use our cartoon – just give us credit. We can be reached at Appellatesquawk@yahoo.com.


      • Bill B says:

        Just to let you know that I posted the article I wrote on Michigan’s new videotaping law. I used your cartoon with due credit and likes back to the original article, as well as a quote from that article also with due credit. Thank you again. You can read it right on our front page.   Bill Branham http://www.provinginnocence.org Twitter: provnginnocence

        >________________________________ > From: appellatesquawk >To: billb133@yahoo.com >Sent: Sunday, March 3, 2013 2:27 PM >Subject: [New comment] Let’s put the Claws back into Confrontation! > > > WordPress.com >Appellate Squawk commented: “Sure! Just give us credit. We can be reached at Appellatesquawk@yahoo.com.” >


  2. When a DA uses the “not for the truth” excuse to get all sorts of hearsay before the jury, I find myself wondering whether they’re cynically manipulating the pliant members of the bench, or whether they’re completely clueless as to how intellectually dishonest their claim is.

    Have you read Williams v. Illinois? A majority of justices rejected the idea that testimonial hearsay could be relied upon “not for its truth.” I haven’t had the right case go up on appeal to test any real world application of this yet…


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